Thursday, 24 September, 2020

Resolve Local Disputes Through Mediation

Mukti Rijal


The role of Judicial Committee was thoroughly discussed at a webinar based event the other day in which key civil society stakeholders had participated from across the broader spectrum. The discussion did revolve around the legal dilemma and imprecision coming in the way of judicial committee roles and functions in rural municipalities (Gaupalika) and municipalities (Nagarpalika). Article 217 of the Constitution of Nepal stipulates about the Judicial Committee envisaging that the three member panel headed by the deputy chief of urban and rural municipality shall settle the prescribed category of disputes at the local level. Furthermore, sections 46 to 53 of the Local Governance Act 2017 provide an elaboration of process and procedure for dispute resolution spelt out in the constitution.
However, the provision related with Judicial Committee in the law is more or less reminiscent of the provision during the party-less Panchayat era when the concept of the limited democratic government was neither applied nor respected. The judicial functions had been allotted to the local Panchayats through law to decide on the community-related based disputes assuming that they could function as courts of law.

Adjudicative functions
Even in those days dispute adjudication by the Panchayats was assessed as a failure and inappropriate. As a result, in the subsequent amendment of the law, the Panchayat government had also attempted to curtail some of adjudicative jurisdiction as local bodies cannot function as judicial or quasi-judicial agencies. It is odd to note that Local Government Operation Act 2017 enacted according to the federal democratic constitution entrusts judicial committee to carry out adjudicative functions and responsibilities similar to the Panchayat era even as the political system has radically changed and transformed.
It is positive to note that the Act lists several relevant responsibilities for the deputy mayors who also head the judicial committee. Undoubtedly, there has been a positive development at local level following the local elections held three years ago. Over ninety per cent of the deputy mayors in the country are women and they represent different political parties and social groups. This has been the outcome of the progressive provision to institute affirmative action in the federal constitution. The role of deputy mayors as coordinator of the Judicial Committee is viewed by some quarters with positive note especially due to the expectations that the issues bearing upon gender justice, women empowerment and social justice could receive a fair deal.
However, the task is easier said than done. Adjudicating disputes entails the task of drawing clear lines between the right and wrong, guilty and non-guilty, winners and losers based on evidences. The deputy mayors are neither trained for adjudicating disputes nor do they have temperament as popularly elected functionaries to act as judge and deliver verdict in an adversarial mode. It is therefore necessary to take note of this fact while going for implementation of the provision related with judicial committee at the local level. Taking this aspect into consideration , the community mediation was promoted in Nepal two decades ago since adjudication through local bodies was found to be fraught with risks of miscarriage of justice .
Two decades ago community mediation was introduced at the local level to resolve disputes in local communities. Some civil society organisations had built rapport with the local bodies and reached out to local communities to help build their capacity in dispute resolution using the skills of mediation. Even though the armed conflict had peaked at that time resulting into the withdrawal some of the sensitive state agencies from the local areas, the grassroots communities were brought on board to implement mediation programme. The then local bodies – VDCs and municipalities -, managed by government employees, had in most cases extended required constructive support to implement community mediation at the local level.
Today the political context has changed significantly in the country. Local Government Operation Act 2017 is in place and it has already supplanted the earlier law. However, the new Act provisions mediation-adjudication giving a rise to all kinds of conceptual vagueness and ambivalence. The provisions related to the Local Government Operation Act were drafted and finalised without due consultation and concurrence of the stakeholders and practitioners. This was purely done on the basis of the bureaucratic knowledge without taking societal knowledge into account. The conceptual imprecision and vagueness in regard to Judicial Committee is the result of the non-engagement of the stakeholders in the lawmaking process which is a recurring problem in Nepal

Nonetheless, the constitutional provision relating to Judicial Committee is an opportunity to institutionalise and sustain facilitated dialogue and mediation to resolve disputes and conflicts in Nepal if its adversarial adjudicative function is taken away from it. There is a need to develop common understanding to promote dialogic culture, principled negotiation and interest based facilitative mediation which is accepted as a democratic and participatory tool for dispute resolution at local level. The ambiguity in the provisions of Local Government Operation Act seems to be a problem for now. There is therefore a need to find common ground to propose relevant amendments to Act to enlarge and strengthen community based mediation at the local level.
In fact, the on- going tenure of the judicial committee has been meted out with a set of confusions and directionless. This confusion has to be clarified and if need be advocacy should be conducted to propose mediation friendly reforms in the Act.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues. 

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