One of the most sensitive issues before Nepal’s Constituent Assembly is the issue of restructuring the existing judiciary. Different options are being considered in this regard.
Some form of restructuring cannot be avoided in Nepal in view of the necessity of dividing judicial powers between the national government and provinces to be set up by the Constituent Assembly. A provincial government would certainly require a provincial judiciary as a part of its governmental system. But the challenge is to define its relationship with the national judicial framework — especially with the national Supreme Court, which will serve as the guardian of the fundamental rights of the Nepali people and uphold supremacy of the constitution.
The judicial structure that Nepal has till date, however, has not been a major problem. There are few questions or grievances attributed to the existing judicial structure of the country in the available official literature produced during the past eighteen years. The digests of the Nepal Bar Association, as well as the yearly reports of the existing Supreme Court have almost no references on this matter.
This is enough to counter many of the propositions in the civil society forums about the need for massive structural changes in the judiciary. These arguments have political linkages, and have purposes beyond professional interests.
The major problems of Nepal, which have almost become chronic, relate with access to justice, the availability of high quality legal services, the number, size and location of District (trial) Courts, their territorial and subject-matter jurisdiction, and political pressures on the justice administration. The list may include infrastructural inadequacies, which by no means are the characteristic of the justice sector alone.
At the district (or sub-district) level, many people cannot access justice because existing procedures make it difficult for litigants to act without the mediation of professional lawyers and in a participatory and transparent manner. Involvement of lawyers in many simple cases only complicates the dispute and delays justice delivery. Any alternative arrangement definitely requires redefining the number, size, and location of District Courts, remodelling their procedures, as well as reconsideration of their territorial and subject-matter jurisdiction.
The low visibility of the legal system and its weak presence in the countryside renders the law (its values and process) inaccessible and even irrelevant for many local people. Simplifying existing trial court procedures, making the judiciary more understandable to the public and user-friendly for self-represented litigants is always an aspect of judicial reform.
In fact, at the sub-district level throughout Nepal, most of the disputes are settled between villagers locally — especially at the courtesy of village elders or respected men and woman known for their integrity and honesty. They have been acting through the ages as effective instruments for dispute resolution at the grassroots level.
These informal rural forums settle disputes by the processes of mediation or conciliation, by acting as arbitrators or counselors for amicable settlement of disputes between parties through compromise or mutual understanding. If the disputes cannot be settled through mediation or conciliation, the forums then recommend parties to the dispute to settle them through the adjudication process at the district level. This is not always simple and fast, or free from technical procedures.
The formal judicial system is beyond the capacity of an average individual, especially those from rural areas. Therefore there is a need in a revised framework to spread out district court judges throughout the sub-district level to work with these forums. Together they can help institutionalizing justice at the doorsteps of the people of villages in an informal atmosphere free from complex procedures in regular courts and through recognition of local conditions, habits, customs and practices.
Several attempts made in the past, especially in the context of decentralization, to institutionalize the rural machinery have not been successful due to low level of political commitment. But it can certainly be achieved.
It is enough for the new constitution to provide for this system as a theoretical statement leaving the laws to elaborate details. These details could allow district judges at the sub-district level to work with local institutions, use theirs own transparent and simple systems, as many equity courts did in England in the past.
Additionally, the combined system should be free from the technical procedures and processes in regular courts of law. The procedural laws such as those in the Muluki Ain (National Civil Code) and other civil criminal statutes should not apply to proceedings before these forums. Further, the government can frame some legal guidelines, which should prescribe the methods of dealing with cases and procedures during hearings, and also methods for summoning witnesses and of the summons and examination process of witnesses and accused.
These district judges should be exclusively authorized to deal with certain types of cases, if they are to fulfill their role as effective justice delivery institutions. The law should clearly assign the nature of civil or criminal cases they can handle. Further they should be given adequate powers for implementation or execution of their orders or judgments through attachment of property or powers for imprisonment.
The local systems have certain advantages. The decisions are mostly judicious; it is never based on the winner-take-it-all principle of the adversarial system that we practice at law courts. The emphasis is on consensus and the victims do not have to run extra miles to the district headquarters to get justice (at the mercy of police, prosecutor and an advocate). The combined system can have common features of informality, flexibility, consensual and democratic decision-making. It can help institutionalize ethnic dispute resolution practices at remote areas — affording satisfaction and a sense of justice.
There are challenges as well. Ignorance about modern concepts of justice and punishment at the grassroots is just one example. There are dominant interests in the villages as they are in the towns and cities, which may influence decision making, causing injustice rather than justice. Many people think in terms of caste/ethnicity based biases, predominant social relations, patterns of power distribution and community cleavages. They make the job of rendering justice difficult.
It is for this reason that this author suggests that the district court should be enabled to show its presence not just on behalf of the formal judiciary, but also as the guard of the rule of law and basics of the justice delivery process. This type of combined system can not only ensure access to justice, but also its quality.
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