Mukti Rijal

The government has made a provision for a stringent and deterrent punishment against the offenders convicted of rape and sexual offence through an amendment to the existing law. The provision has been made to inflict harsher punishment especially against the persons occupying the position of authority if found involved in mediating the resolution of dispute related with rape and grievous sexual offences. In fact, the provision seems directed against the members of the judicial committee, traditional justice actors and law enforcers as several news reports indicated that some of them were alleged in reconciling and settling the cases and disputes appertaining to rape and sexual offence in rural communities of Nepal.

Lack of awareness
They might have got involved in such legally prohibited acts due to lack of knowledge and awareness of the limits of their jurisdictions and competence. Moreover, in some rural municipalities and municipalities, some instance occurred during the preceding years have given rise to the grounds for making an inference on the limits of Judicial Committee's knowledge and capacity. It appears that they consider themselves to be as competent as the court of law and therefore indulge in deciding cases at the neglect of jurisdiction, fairness and norms of justice.
The footage of the images of some of the offices of judicial committee beamed through TV channels have been enough to draw conclusion that they were tempted to behave like the court of justice to deliver verdict on the disputes. The way judicial committees in some local governments executed their role considering themselves as if they were judges in the court of law made them go beyond the jurisdictional limits to tackle the serious offences like forced rape and sexual assault, among others. This should be the reason why the stringent legal provision has been made to bar the local justice institutions like judicial committee and other traditional justice actors and law enforcers, including elders of the different ethnic groups from abusing their authority through resort to conciliation and arbitration on some such offences as rape and forced child marriage.
It is a well-known practice that the local government leaders elected through multiparty competition in a democratic milieu are generally entrusted with mandates and functions for legislating and executing administrative, development and governance related functions at the local level. They should not therefore be required to execute judicial tasks and functions especially handing decision to distinguish right from wrong. Doing so will lead to make them unpopular and violate the principles of the checks and balances which is fundamental to the working of democratic polity.
However, in adherence of the provision of the Local Government Operation Act 2017, the judicial committees constituted in Rural Municipalities and Municipalities, headed by deputy mayor in most cases seem to have given priority to negotiation and mediation for consensual settlement (melmilap) of disputes, not to award verdict to determine the guilty and innocent resulting into win-lose outcome. This has been the examples especially from local governments where judicial committee members are trained and made aware of their jurisdictional and procedural limits on settling disputes.
The news reports in the media indicate that the judicial committees in such local governments have been able to resolve family disputes and cases through recourse to mediation and negotiation without breaching the jurisdictions set by the law. However, there are a few exceptions to it. As mentioned above judicial committees and traditional justice actors are found going beyond their jurisdictions in handling complaints which they should not have executed and earned indictment for breach of jurisdictions.
Needless to say, Nepal has a rich tradition of consensual settlement of the community-based disputes. Community leaders are conversant with the technique of consensus based dispute resolution. Moreover, ethnic communities have their own system of dispute resolution that operates outside the state and its institutions. The focus of community-based mediation and arbitration is on reconciliation and restoration of harmony and relationships. The disputes in the ethnic communities are viewed as that of communities, not of the individuals involved in the cases. Mostly if disputes arise between two persons, they are inclined to settle the disputes by themselves through negotiation or at the behest of the elders and trusted people in the community.
Besides this traditional justice mechanism, there are other forums and institutions active in resolving disputes in local communities. As the people in the communities have been organised to cater to different social, cultural and economic functions community based groups and organisations have also taken on the role to resolve disputes at the local level. Prominent among the groups in undertaking the responsibilities in resolving disputes in communities have been forestry user groups, water user groups, mother groups and several categories of local groups. Political party functionaries are also involved in settling disputes related with different social and political functions, including development projects, their prioritisation, selection and implementation at the local level.

Fixing boundaries
As plurality of actors and institutions are involved in settling disputes in rural communities, there is likelihood that they breach the boundaries set by the law as they may not be aware of legal provisions and procedures. It is time to take stock of the various actors and modes of dispute resolution at local level and examine to what extent they follow the norms and values of justice, uphold the boundaries defined by law. Local justice actors, including judicial committees, need to be trained properly and adequately to ensure that they do not breach the boundaries and limits set and defined by the law of the land.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues. rijalmukti@gmail.com)