Some Notes on Informal System of Justice

November 2012 (Unpublished Notes)

Most people use the informal system for justice in Nepal.

Surveys show high awareness of informal providers: political youth groups (56%), traditional dispute resolution mechanisms (50%), community mediation (43%), local peace committees (30%) and para-legal committees (8%). [Public Perception Surveys on Community Security and Safety (2007, 2008, 2009 and 2010]

Among victims and witnesses who chose not to report a crime to the Nepal Police, two-fifths sought an alternative means of addressing the issue [USIP, 2011, ‘Security and Justice in Nepal, Citizen’s Perspectives on the Rule of Law and the Role of the Nepal Police’].

Nepalese has a long tradition of community participation in dispute resolution since long. “Community-based informal systems of justice… have their roots in the cultural traditions of Nepal… Internationally supported (community-based) dispute resolution mechanisms… derive their structure and operation from international standards for the provision of informal justice.  [Saferworld: Snapshots of informal justice provision in Kaski, Panchthar and Dhanusha Districts, Nepal (2011): (p iv)]. Traditionally Nepalese society has recognised the settling of disputes through community involvement. The system of ‘Panchyati’ as still practiced is the settling of disputes by elderly villagers. Mediators were called ‘Bhaladmi’ [gentlemen]. If mediation failed they intervened with a decision. 

These models are very accessible to poor and disadvantaged groups. ESP-CMCs (Community Mediation Centres) - excluded groups or minorities registered the most cases (Dalits 24%, indigenous groups 23%) [OPR of Madhes Community Mediation Programme – MCMP – 2010]. In 2008, almost 90 per cent of cases dealt with by PLCs in eight districts directly involved women, with the majority of cases focusing on domestic abuse (36 per cent) and social violence (18 per cent) . 73.1% of marginalised people  have heard of informal justice providers (including community mediators, para legal committees and local peace committees). Marginalized people include hill Dalits, Tarai Dalits, disadvantaged Janajatis, endangered Janajatis and religious minorities (Muslims and Churautes). 

Stated advantages are: Accessibility; Affordability; Speedy; High level of legitimacy at local level; Familiarity with the context of disputes; often favours reconciliation over punishment; Simpler procedures; No language or cultural barriers; Amicable settlement; Less nepotism/corruption [UNDP Local Traditional Justice Systems in Nepal (2010) (p32)]. 

UNDP Local Traditional Justice Systems in Nepal (2010) (p32) specifies advantages of the informal system as: Accessibility; Affordability; Speedy; High level of legitimacy at local level; Familiarity with the context of disputes; Often favours reconciliation over punishment; Simpler procedures; No language or cultural barriers; Amicable settlement; Less nepotism/corruption. Saferworld (2011) informal justice mechanisms have: enabled women to voice their opinions and empowered marginalised ethnic groups to discuss issues that affect them with people who enjoy social power. (p47); creates peace at a community level.

Informal justice mechanisms have enabled women to voice their opinions and empowered marginalised ethnic groups to discuss issues that affect them with people who enjoy social power. [p47); creates peace at  community level [Saferworld (2011)].

They build peace at the community level provided they are sensitive to the rule of law and principles of human rights recognized in the country.

However, these different systems of justice often operate in isolation from one another, thus undermining their contribution to a holistic, comprehensive system of justice in Nepal [Saferworld: Snapshots of informal justice provision, Nepal (2011)].

The various providers offer mixed results: when asked of success rates (did you get ‘justice’ from the provider) of each provider: LPC’s = 76%; Community Mediation = 72%; VDC = 66%; TDRM = 64%; PYG = 59% and PLC = 54% [Public Perception Surveys on Community Security and Safety (2007, 2008, 2009 and 2010)].

Bias: given domination by elite groups. Many reportedly discriminate against marginalised groups, are politicised and corrupt.

A preference towards arbitration over mediation, when the arbitrators have no official right to decide and perpetuating conflict dynamics.

Little awareness or regard for law or human rights: operate outside of internationally recognised human rights norms and international and Nepali justice standards and frameworks  (p51) - UNDP review of Local Traditional Justice Systems (2010).

Use of intimidation and shame (social) to enforce judgments

Use of physical punishments (Saferworld, 2011)

Growing social-economic disparities are breaking traditional systems.

Other limitations of ADR: It is only available in parts of the country and are more accessible to Terai and lower hills residents than in the mountains: More people in the hills and the Tarai had heard about community mediation while more people in the mountains had heard about traditional dispute resolution [Public Perception Surveys on Community Security and Safety (2007, 2008, 2009 and 2010). Q70, base = 3016].  Proportion of those who have heard about the various types of justice and dispute resolution systems other than formal courts.          

 

Proportion of those who have heard about the various types of justice and dispute resolution systems other than formal courts

 

Mountain

Hill

Tarai

a) Community mediation

32

48

42

c) Traditional dispute resolution mechanism

63

47

50

d) Para legal committee

4

6

11

 Informal system can only help solve simple civil cases. Type of cases informal system can address: kutpit (physical assults), land issues eg bourndary, encroachment and possession, sarsapati (money lending and transactions), gharayasi samasya (domestic disputes) galigalauz (defamation). TAF Community Based Mediation Programme: 26% land disputes; 12% verbal abuse; 12% borrowing/lending; 9% physical assult; 6% property partition. Land disputes proved the hardest to mediate.

When the ‘informal system’ is strengthened it perfoms even better.

A much higher ‘satisfaction’ rate for international standard ADR, vs other service providers: Of all of those who sought some form of justice / dispute resolution (from all providers – including police, courts, local leaders, VDCs, District office, CBOs) only 42% said that they were satisfied with the outcome [Public Perception Surveys on Community Security and Safety (2007, 2008, 2009 and 2010)]. This compares poorly with the average satisfaction rate for many international standard community mediation services – TAF Community Based Mediation Programme: 95.8% satisfied with the dispute resolution. 

Some high performing models of ADR are available: e.g. MCMP; the TAF Community Based Mediation Programme [implemented in 6 Terai Districts]: 95.8% satisfied with the dispute resolution; 83.3% said all provisions of the agreement were implemented; 90.6% said the dispute is fully settled at a later stage; 70.8% said their relations with the disputant had improved.

They need to be monitored to ensure quality is and remains high: TAF Community Based Mediation Programme - 5.2% said that there was pressure put on to agree during the mediation

Investing in the ‘informal’ system also often helps improve the formal system:

ADR could reduce the backlog in the formal system, opening up space for reforms: 90% of the caseload of the Supreme Court is civil matters and often petty cases. Community mediation may relieve district courts of their civil caseload which is 73.2% of the total national caseload. [Supreme Court – 90%; Appellate Court – 74% and District Court – 66%) [TAF, 2002, Trail Court System in Nepal’]. 

1998 Local Self-Government Act provided for the creation of community-based courts at the village and municipal level to settle minor discords (never established) 

Mediation Act, 2011 has recently been passed by the Legislature Parliament. The Act contains provisions of pre-court mediation, court annexed/referred mediation and community based mediation. The Act, however, has not yet been enforced.  Eestablishment of mediation centres within each court premises; Use of court annexed mediation and arbitration by the Judiciary: There is now statutory based arbitration – but this suffers from even longer delays than the regular system and is also costly. Mediation Procedure: Judiciary can order cases to be resolved by mediation. No strict rules on who, how or number of mediators – can be agreed by the 2 parties (e.g. use a system already in place). If no agreement 1 or 3 mediators shall be appointed. To be selected by the court a mediator must have a ‘certificate’ for mediators provided by a Committee (need to be 25 and have a law degree!). However all this is skipped if the mediator is selected by the 2 parties or works for an organisation (that has received accreditation by the Committee) with rules and procedures already in place. Rule out arbitration. Mentions charges but not amounts. Agreement is legally binding once set before the court.

The Committee / Council is made up of a Justice of the Supreme Court, Sec of MoLJ, Sec MoLD, Chair of Nepal Bar Association, Registrar of the Supreme Court. Council is tasked with: approve organisations and individuals, training courses; set a permanent structure for community mediation and codes of conduct.  Local self Governance Act allowed for mediation and arbitration if no agreement is reached. New Domestic Violence Act allows for mediation.

New Mediation act allows for i) court referred mediation (for certain cases); ii) community mediation and iii) commercial mediation. As yet none have been implemented. Local Self Governance Act: recognises devolution of justice to the grassroots; provides for a ‘panel of mediators in each VDC’; recognises the rights to a discussion to generate an agreement; and grants power to the VDC to intervene and take a decision if parties fail to reach a consensus [a concern].

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