Mediation should be promoted at the local level by taking into account the long-embedded milieu and practices. Trying to convert local democratic political institutions into adjudicative agencies will not serve the purpose of local democracy
The Local Government Operation Act, enacted almost two-and-a-half years ago in line with the federal constitution, has several provisions of far-reaching import in the management of local affairs and functions. The Act has been the organic law for the management of local governments — Gaupalika and Nagarpalika. The provisions relating to judicial committees enshrined in section 47 of the Act has often been debated and disputed. One of the reasons this has become a matter of discussion and controversy is due to the fact that the legal provision lends itself to imprecision and confusion.
The provision assigns both mediation and arbitration a singular meaning that the local judicial committee should arbitrate over disputes in case of non-settlement through mediation translated as melmilap in Nepali.
However, some interpret the provision to mean that the judicial committee should follow court-like adjudicative procedures to resolve disputes in case the attempt to settle it through mediation fails. The adjudicative procedure involves a lengthy, transaction-based and cumbersome adversarial procedure, which is spelt out in the civil and criminal procedure codes brought into effect last year. But this cannot be feasibly followed by the popularly-elected judicial committee at the local level by resorting to a competitive democratic process.
Adjudication through the court goes against the rural ethos and socio-psychological milieu of the local communities in Nepal. A person that quarrels too often and brings court disputes against his or her neighbour is generally dubbed as a mischief monger. People are always alert and cautious and, therefore, tend to keep themselves on the guard against such deviance.
It is also widely held that involvement in disputes brings dishonour to the family, clan and lineage. People in the rural communities mostly tend to conceal or suppress disputes within the family, and keep them as private as possible. Disputes are settled through negotiations so that no outsiders know about them. A popular saying in the communities goes “One does not share the bread, but one shares the blame”. Insulting a person’s family, caste and even village amounts to insulting him or her. Even simple allegations against distant relatives are perceived as damaging to the honour and social prestige of all extended families (khandan), relatives and kinfolks.
Conforming to customs and traditions offers a sense of security to the villagers, while non-conformity runs the risk of being ostracised or castigated. Harmony in the behaviour of individuals is necessary for the smooth running of a rural community. This is achieved by making individuals conform to a settled pattern of behaviour within the community.
Social pressure is strongly felt in rural communities where everyone knows everyone else. News travels quickly in the villages along established connections and networks of relatives, which creates various modes of “social pressures” against the perceived wrongdoers in these communities. They may differ from one place or ethnic group to the other groups.
In fact, good relationships among members in a community have economic and social value. Mutual aid and reciprocity are crucial for people when acting in relation to each other. Participation in local networks and attitudes of mutual trust make it easier for the groups to reach decisions and implement collective action. In communities where a certain pattern of behaviour is expected from individuals for the benefit of the group, social pressures and fear of exclusion can induce these individuals to conform and act in obedience to the expected behaviour. People in the community give priority to collaboration and keep relationships based on harmony undisturbed. They try not to let the social fabric tear apart. Conciliatory practices have continued to sustain communities in maintaining relationships and carrying out dispute resolution.
Reciprocity and trust are the basis of this relationship, without which the communities cannot pool their capacities, resources and possibilities, and live together. Social life is indeed a mesh of interpersonal connection and linkages. Social norms are strengthened through interaction and interconnection. The explicit and written codifications of norms that are found in the statutory book are not always the ones the people follow in their day to day lives. Norms and values help maintain mutual relationships and interconnectedness, which are intrinsic to the Nepalese social fabric and community order. Therefore, the win-lose litigation methodology and court adjudication do not align with the rural context.
The judicial committees in Gaupalika and Nagarpalika should, therefore, not be required to follow the judicial procedures for resolution of the disputes. Adhering to the simple procedure of mediation will make the judicial committee competent enough to resolve the disputes at the local level in a consensual, win-win methodology. Pursuant to the spirit of the Local Government Operation Act and the local Nepali traditions, mediation should, therefore, be promoted at the local level in a manner that accounts for the long-embedded milieu and practices. Attempting to convert local democratic political institutions into adjudicative agencies will not serve the purpose of local democracy.
A version of this article appears in print on August 28, 2019 of The Himalayan Times.