Without a clueThere is much confusion about the exact role and duties of the judicial committees
Chapter 8 of the Local Government (Operation) Act (2017) specifically mandates the committees to adjudicate disputes related to 13 specific matters. They include property boundary disputes related to canals, dams, ditches or allocation of water and encroachment on roads or exits; disputes about compensation for damage to crops; disputes about payment of wages; disputes about lost and found cattle; and other disputes designated by federal and provincial laws. In addition to these 13 categories, 11 other issues can be mediated only through mediation. The decision of the judicial committee can be appealed to the District Court if one of the disputing parties contests the ruling. Yet, there is much confusion among the general population, and elected representatives, about the exact role and duties of the judicial committees, which has resulted in debates and discussions concerning the legitimacy and potential viability of the committees.
The very legitimate concern that democratic governments should have power dispersed across different organs of the state, as allowing Deputy-Mayors or Vice-Chairpersons to exercise both executive and judicial power is undemocratic. This is a valid concern held by many people as equality and fairness may be undermined by the absence of an effective ombudsman, as the elected representatives potentially yield too much power, which is the antithesis of the separation of power mandated by the constitution.
Another frequently cited concern is the ability of a democratically elected representative to adjudicate disputes impartially when his or her voters are involved. This is a great worry for many people as the deputy mayor or vice-chairperson are members of, and have allegiance to, a specific political party, and the question of whether they can bypass their own partisan loyalty remains a serious concern. Moreover, the LGUs, in which the JCs will be located, will be divided between political allegiances, and other divisive and potentially problematic areas, such as ethnicity, religion, and caste to name a few.
One of the most discussed issues regarding judicial committees is the fact that they are headed by elected representatives that are new and inexperienced and lack knowledge and experience of administrative and managerial matters, not to mention having no legal and judicial training. Moreover, it is not only the lack of knowledge and experience that is a problem, but also the lack of laws and procedures that are preventing the judicial committees from effectively adjudicating disputes, as many committees are waiting for the Ministry of Federal and General Administration to produce uniform guidelines.
It is clear that the establishment of judicial committees has raised many legitimate and worrying issues, and the many concerns outlined above may appear numerous and intractable, but there are many positive aspects that may help the committees maximise their potential and function effectively and efficiently. If operating as envisioned in the constitution, they have the bonus of being able to resolve disputes quickly, are inexpensive and respectful of social relationships and cultural practices.
One of the most important aspects of the judicial committee is that of the 753 Local Government units, the majority (92 percent) of the Deputy-Mayors and Vice-Chairpersons are women. It is widely believed that the overwhelming number of women representatives at the local level can greatly help promote gender equality and work for the empowerment of women by providing important leadership positions within local communities. Meaningful participation and active decision-making in community affairs, and the success of judicial committees, can lead to the success of women representatives and increase public trust in women’s political leadership that will unquestionably erode gender discrimination, and be a major step towards gender mainstreaming.
The general census appears to agree that the fundamental and most serious concern is the lack of judicial and legal knowledge and experience of the judicial committee members. Perhaps the best way to mitigate criticisms is to provide adequate practical training and skill development, followed by continual support and encouragement. The need for training is echoed throughout the literature, media, and the testimonies of elected representatives.
Judicial committees have faced a barrage of criticism and negativity. The inchoate nature of judicial committees suggests that there will undoubtedly be an initial period of uncertainty and confusion as the political system decentralises some judicial powers to the local level. Moreover, the diversity of the local representatives and judicial committee members should be celebrated and not derided as they are genuinely inclusive, and as such, will require training and time to gain experience to become competent and capable in conducting their roles and responsibilities effectively. Judicial committees should be nurtured and supported as they may play a pivotal role in the future of inclusive and democratic constitutional development in Nepal
Sitoula is a human rights advocate and Humphrey Fulbright Fellow.
Chapagain is an M&E Expert at Search for Common Ground