Many obstacles

Though the Interim Constitution envisions an independent and competent judiciary providing access to justice to the people, Nepal’s judiciary suffers from many problems, such as a lack of inclusiveness when it comes to gender and ethnicity in judges and court officials; the prevalence of corruption; delays in decision making; failures to implement court decisions; insufficient human resources and/or poorly trained human resources; use of much too formal language and procedures; inaccessibility to many people due to a lack of sufficient economic resources or geographic remoteness. All of these factors are obstacles to the pursuit of justice.

With regards to the restructuring of the judicial sector, there are many areas of reform. But here, I would like to floor an idea on a ‘conceptual’ or ‘theoretical’ level in order to create a debate inside and outside the Constituent Assembly so that the concept can be developed further and perhaps embraced into the Nepali legal system through the new constitution and subsequent national legislation. My proposal is that we accept the concept of ‘legal pluralism’ in Nepal, so that it can enhance access to justice and help develop an inclusive justice system to better serve the country’s diverse population. But first, let me define the concept and benefits of accepting legal pluralism in our legal system.

The case for pluralism

The basic concept of legal pluralism is that different types of laws—such as formal laws, informal laws, and religious legal norms—are in operation at the same time and in the same jurisdiction. Legal pluralism is mainly present in post-colonial societies or ones where there are a number of diverse, indigenous communities. Defining a pluralistic legal system, Sally Merry, a strong proponent of legal pluralism, says “a legal system is pluralistic in the juristic sense when the sovereign commands different bodies of law for different groups of population varying by ethnicity, religion, nationality or, geography, and when the parallel legal regimes are all dependent on the state legal system.’ Likewise, German scholar Benda Backman suggests that before talking about legal pluralism we should be clear about whether we are ready to accept at the conceptual level “the theoretical possibility of more than one legal order, based on different sources of ultimate validity and maintained by forms of organisation other than the state, within one political organisation.”

The main thrust of legal pluralism is that a society is governed not only by formal laws and regulations but also by local norms, customary laws, and religious practices. In reality, each and every society is run under a complex legal system made up of formal and informal normative and institutional setups. Therefore, I would suggest embracing the principle of legal pluralism in Nepal for at least following three reasons.

Accessing justice

First, to ensure better access to justice for all, especially poor and marginalised groups. Nepal is a multiethnic/caste society where 126 castes/ethnic groups, of which 59 are indigenous communities, and 83 percent of the total population still live in rural areas. Almost all indigenous communities and all other ethnic groups in the villages have their own traditional dispute settlement practices from time immemorial, but so-called modern law (state law) has not recognised these alternative legal practices. There is a need for discussions among stakeholders to recognise local legal practices, which will make the Nepali justice system more inclusive, human rights-friendly, and more accessible to peoples from rural areas. Poor, indigenous, and rural people will feel ownership of the justice system and can access justice according to their own practices.

Second, like all other indigenous scholars, Mahendra Lawoti has observed that “indigenous communities make up around 36 percent of the total population but these people face pervasive linguistic, religious and socio-cultural discrimination’ in every aspect of life including justice sector”. Research conducted by the National Judicial Academy in 2012 also identified the poor situation of inclusiveness in the judiciary. As the report identified, among all judicial sector employees, Brahmins/Chhetris are dominant by caste (77.6 percent) and men are dominant by gender (86.1 percent). Out of a total 233 judges in the country, 87.1 percent are Bramhins or Chhetris and only 9.4 percent are from the indigenous community; Brahmins/Chhetris constitute 87.6 percent of gazetted officers and 82.1 percent of non-gazetted officers while Janajatis constitute 9.3 percent of gazetted officers and 11.2 percent of non-gazetted officers in the judiciary. Similarly, among lawyers, 76 percent are Brahmins/Chhetris, 18.3 percent are Janajati, and 1.4 percent is from the Dalit community.

In such a situation, to address the discriminatory situation, we need to take up a policy of inclusion in the formal judicial sector. If Nepal accepts the principle of legal pluralism, arrangements can be made so that people get justice in their languages, as per their customs and traditions (to the extent that they do not contradict international human rights norms), through informal processes, in many cases free of cost, and through the judges of their choices.

Finally, our courts are facing a massive backlog in cases and one of the major criticisms of the Nepali judiciary is related to the time it takes to decide a case, prepare a full version of the decision, and implement the court decision. Due to the delay in handling cases, the backlog remains a big challenge for the judiciary on the one hand, and on the other, the poor and marginalised suffer much. In such a situation, if we accept the concept of ‘legal pluralism’, a great number of cases will not reach the formal courts and be settled at the local level. This has a two-fold benefit—one, people get the opportunity to access justice at their doorsteps and they do not have to come into the formal court system, and two, cases that enter the formal system will be handled more efficiently by the court staff and justice will be possible faster.

The principle of legal pluralism (like in the political arena) can create a justice system that is more inclusive and human rights-friendly to the poor and marginalised sections of the population; people can access justice at their doorsteps as per their laws, customs, and traditions so that they will feel that ‘real justice’ has been done; and the backlog of cases at the courts will be resolved and speedy justice

possible.

Ghimire is a human rights lawyer and currently a PhD fellow at the Faculty of Law, University of Wollongong, Australia