If judicial committees weren’t meant to be courts and judicial committee members judges, why would they adjudicate?
By: Namit Wagley
Access to justice is a fundamental human right and a basic state service enshrined within Nepali Constitution. To mitigate the inefficiencies of the formal system; increase access to justice and bridge the formal/informal justice divide, the drafters of the Constitution envisioned judicial committees at each of the 753 municipal and rural municipal level. Headed by deputy mayor at the municipal level and deputy chairperson at the rural municipal level, as per Article 217 of Constitution of Nepal, the three-member committee has the mandate to settle disputes and refer cases for mediation at the local level based on their jurisdiction. Similarly, Article 217 (2) provides for the election of the other two members of the judicial committees from within the rural municipal and municipal assemblies.
Similarly, Local Governance Operation Act, 2017 (LGOA) was enacted to implement the provisions related to the powers of local level as per the Constitution of Nepal; promote cooperativeness, co-existence and coordination between the federation, province and local level; institutionalize the legislative, executive and judicial practice at the local level; deliver efficient and quality services by ensuring participation, accountability and transparency.
As per section 47 (1) of LGOA, judicial committees have been empowered to settle disputes related to 13 specific matters. Likewise, as per Article 47 (2) in 11 other matters, judicial committee has the right to refer cases for mediation. The decisions can be appealed to district court and subsequently be appealed to higher courts. In case of arbitration, judicial committees collectively exercise its jurisdiction, and the opinion of the majority is regarded as the decision of the committee. In cases of mediation, judicial committees keep a roster of mediators and refer the parties to the mediation centres at the ward level.
This new model for a tiered, locally-driven justice delivery system has the potential to bring justice administration closer to individual communities and make it more responsive to the time, cost, and efficiency needs of citizens —provided that it operates on the basis of sound policy framework, informed citizen participation and good faith working relations between judicial committee and their members and other justice delivery mechanisms including community mediation and district courts. If these conditions are met, the benefits of the local justice system will be especially significant for the poor, women, and other marginalized groups. However, in the absence of conceptual and policy clarity, guidelines and operating procedures, the function of justice delivery at the local level is suffering from a lot of inconsistencies and confusion.
So, what should be done?
First and foremost, there needs to be a common understanding on the conceptual and procedural framework of Judicial Committees. The framers of the Constitution clearly did not envision judicial committees to be a court. If they had, they could have easily called it “local courts.” Similarly, judicial committees aren’t part of an integrated judicial system (i.e. district, appellate and supreme court) as they aren’t governed by judicial council and house elected representatives as members of the committees as opposed to judicial officers and judges. In addition, if we look at the traditional history of our justice systems at the local level, we had practices of settling disputes at the local level through panchayat led judicial committees as per the Village Panchayat Act, 1961. They were not considered courts, rather an extension of the integrated judicial system that supplemented access to justice. All of this suggests, judicial committees were envisioned as an alternative dispute resolution mechanism that provide access to justice to local citizens at the municipal and rural municipal level.
Second, the whole debate on the premise of “settle disputes” needs to be resolved. It is quintessentially an adjudication v arbitration question. Traditionally, alternative local systems exercised the mandate to arbitrate pre-defined classification of cases. Local Self Governance Act, 1999 (LSGA) provisioned, relating to a range of matters including land disputes, forced labor, trespassing, and paupers, that such cases would be heard and settled either by mediation or 3-person arbitration boards, appointed by the then VDC “as agreed upon between the parties to a case.” Unfortunately, clauses of LSGA that gave judicial power to the VDCs were never implemented. As per a leading constitutional expert Dr. Bipin Adhikari “Similar structure could have been envisioned by the framers of the Constitution”.
However, in practice, the premise of settling disputes have been misinterpreted to mean adjudication. This raises a whole host of issues ranging from separation of powers, competence, fairness and equality in legal process, lack of adequate judicial oversight mechanism and support system to being against the principle of access to justice. The underlying question remains: If judicial committees weren’t meant to be courts and judicial committee members judges, why would they adjudicate? In addition, LGOA mandates, in both classification of cases under 47(1) and 47 (2), that priority should be given to mediation. This adds further weight to the argument that judicial committees were envisioned to uphold justice through a facilitative alternative dispute resolution mechanism.
There seems to be a clear dichotomy in policy and practice in need of urgent reconciliation. The adjudication v arbitration debate has subliminal political dimensions that cannot be overlooked. One, given the opportunity to choose between adjudication and arbitration – elected representatives might prefer adjudication as it provides a platform to exert power and authority. Two, adopting facilitative approaches such as arbitration and mediation might be considered shying away from responsibilities – as they put emphasis on disputing parties to come up with a durable resolution. Three, asking politicians to refrain from exerting their judicial discretion, albeit in limited classification of cases, is not an easy task – especially as it has direct consequences to showcasing their work to their constituencies. Four, judicial committee work has been highly glamorized at the expense of other duties and responsibilities. For example, a deputy mayor is also in charge of coordinating the local tax deliberation committee; monitoring NGO activities; coordinating protection of consumer rights; and, providing oversight to plans and programs etc. Overemphasis on judicial committee work might hamper some of the other tasks judicial committees are entrusted to execute diligently. This can have a negative effect on the efficiency, credibility and political careers of emerging local leaders.
Thus, concerted efforts need to be made to make judicial committee members cognizant of the bigger picture – i.e. what would be the best possible way to provide speedy, inexpensive and quality access to justice to citizens at the local level? Is it through adjudication combined with mediation? Is it through arbitration combined with mediation? Or, is it through a combination of all? At the moment, we seem to be stuck in a no man’s land with an incoherent and dysfunctional hybrid system. The problem is, while the discourse on mediation and adjudication has been rampantly discussed, not much focus has been given to the arbitration discourse. It may well be that local leaders are oblivious to this mechanism. In that case, we need to bring forward the discourse on arbitration to public light.
Even if we entertain the fact that judicial committees should be allowed to adjudicate, then adequate oversight, support and guidance mechanism needs to be established – in policy and practice. Whilst doing so, it is imperative that local dispute resolution process rid itself of all the complexities and procedural hassles, inherent in the formal justice sector, whilst not compromising due process and thereby justice at the local level. Once there is clarity on this fundamental question, then we can move ahead with strategizing appropriate measures to supplement the justice delivery mechanism.
Third, the interface between judicial committees at the rural municipal and municipal level and community mediators at the word level needs to be institutionalized. As a key cog of ensuring social harmony and holistic justice delivery mechanism at the local level, community mediation needs to work in tandem with judicial committees. This will not only reduce the case settlement burden on judicial committees but truly allow citizens to figuratively access justice at their doorsteps. If we look at the spirit of the Constitution and the LGOA, mediation is given utmost priority as the pre-dominant form of dispute resolution at the local level. Judicial Committees supplement that with arbitrating cases that cannot be resolved through mediation. A debate has emerged whether judicial committees can mediate cases themselves. This can be problematic for a variety of reasons. One, mediation and arbitration are specialized disciplines that require different skill set and procedures to resolve cases. Two, Mediation Act, 2011 has clearly stipulated the criteria to become a community mediator – one needs to attain 25 years of age and complete an eight-day training to be eligible. Even if we argue that should parties want, they can choose anyone as mediators irrespective of their age and credentials, having judicial committee mediate cases will raise issues of confidentiality and due process – contrary to the mediator’s code of conduct as per the Mediation Act.
If the mandate of judicial committees is expanded to include mediation, there would be conflict of interest for them to resolve the same case through arbitration should mediation not yield a resolution. Therefore, the scope of conflict of interest also needs to be coherently defined to address issues of politicization; balance separation of powers; maintain synergy between judicial committees and mediation and demonstrate transparency and accountability.
Fifth, in the current scenario, elected representatives are new and inexperienced. Some of them lack knowledge and experience in administrative, managerial and judicial processes. Due to their political affiliations, reports have started to emerge highlighting politicization of dispute resolution process at the local level. In other areas, judicial committees have been found to be handling disputes outside their jurisdiction. To exasperate matters further, Constitution and current legislative frameworks fail to establish adequate support and quality control mechanisms to sustain high quality dispute resolution at the local level. This raises fears that the poor and marginalized will continue to be ostracized; politicization and corruption will continue to persist, even in the new federal setup.
Therefore, a participatory policy making process including collaborations among multi-stakeholders at the local, provincial and federal level needs to be expedited. The Constitution provides local assemblies the autonomy, through schedule 8, to design and regulate provisions relating to the management of mediation, arbitration and local courts. This needs to be further bolstered by a comprehensive training package, periodic knowledge and practice sharing exercise and appropriate coordination mechanisms to supplement the existent skills and competencies of judicial committee members. These should be designed giving due consideration to principles of gender equity and social inclusion; limit overburdening of judicial work and ensure meaningful participation of judicial committee members across the various tiers of local government (i.e. legislative, executive and judiciary); promote fairness and equality before the law and bridge the gap between state and its citizens.
Whilst impending regulations on Local Governance Operations Act, judicial committee working procedures and supplementing legislations on mediation and arbitration will provide further clarity, institutionalizing judicial committees will require multi-faceted interventions from designing coherent policy frameworks; supplementing holistic trainings and practice sharing for committee members; developing physical infrastructure – for judicial committees at the municipal and rural municipal level and mediation centers at the ward level; establishing quality control and judicial oversight mechanisms; creating linkages with other access to justice service providers (such as town police, shelter homes, human rights based NGOs, quasi-judicial bodies) to installing integrated judicial support systems – such as legal officer and legal assistant to provide administrative and technical support (i.e. screening cases, registering disputes, drafting agreement papers etc.) to committee members at the local level.
(This article was originally published in the The Kathmandu Post on July 17, 2018.)
Namit Wagley holds an LLB and LLM in International Law and Human Rights from University of Sussex, UK.
