The local ‘judicial committees’ established by Nepal’s 2015 Constitution have shown that with sufficient resources and expertise they can improve access to justice, especially for women. This was one of the key findings of a consultation organized by the International Commission of Jurists and South Asian Association for Regional Cooperation in Law (SAARC Law Nepal) on the “Role of Justice Sector Actors on Enhancing Women’s Access to Justice in Nepal” held on 21 September 2022 in Kathmandu.
This event brought together 48 legal professionals, including lawyers, judicial committee officials, and members of civil society working with judicial committees. Under Article 217 of Nepal’s Federal Constitution, judicial committees may effectively exercise certain kinds of judicial power at the local level. Judicial committees are composed of three members, headed by a Deputy-Mayor of a municipality or Vice-Chair of a rural municipality as the first mechanism to settle disputes under its jurisdiction as established by federal and municipal law. Under Nepali law, such jurisdiction does not generally extend to most serious crimes. The Local Government Operation Act (LGOA) gives the mandate to the judicial committee to hear and mediate on criminal cases that could lead up to one year’s imprisonment. The ICJ is concerned, however, that jurisdiction may include some serious crimes, including the cases of domestic violence, which should come under the purview of the ordinary justice system.
Justice Sapana Pradhan Malla of the Supreme Court of Nepal highlighted that the establishment of the judicial committee is based on the concept of community justice. This has created many opportunities for justice seekers while at the same time there are many challenges which hamper the judicial committees from effectively performing their mandate. She indicated that the mechanism had to be more gender-responsive, and victim-centred. She further stated that these mechanisms are to be equipped with adequate resources and that the capacity of rights holders to claim their rights should be strengthened.
Justice Kalyan Shrestha, former Chief Justice of the Supreme Court of Nepal and ICJ Commissioner, welcomed the establishment of judicial committees as an approachable mechanism that can help deliver effective justice for women and persons from marginalized communities. Judicial committees must therefore be gender sensitive, informal and the capacity of judicial committee members must be strengthened so that they are more gender responsive while dealing cases involving women.
Saman Zia-Zarifi, Secretary General of the International Commission of Jurists stated that the establishment of judicial committees was an important step to ensure women’s easy access to justice and these mechanisms should balance working in an informal manner with respect to due process and legality. He asked the government to ensure these mechanisms are equipped with required capacity and resources. He further said the success of judicial committees could serve as a lesson for many countries around the world.
Highlighting the objective of the program, Laxmi Pokharel, Nepal National Legal Adviser with ICJ’s Women’s Access to Justice Project shared some major findings and recommendations on the challenges faced by judicial committees, including ambiguities on the mandate and jurisdiction, lack of necessary legislative framework, insufficient human and financial resources, lack of gender-sensitive trainings to handle cases involving women, and a lack of proper institutional and legal framework for collaboration and referral.
Subha Ghale, Programme Analyst of UN-Women Nepal shared the work UN-Women is doing with judicial committees. She stated that while the judicial committees were important avenues to seek justice by women and other marginalized communities, these mechanisms needed to be more victim centric and gender responsive as well as equipped with the necessary human and financial resources to perform their mandate effectively.
Senior Advocate Usha Malla Pathak, Advocate and former Deputy Mayor of Bhadrapur Municipality, Chandra Maya Shrestha and Ana Maria Mondragon, Deputy Judge at Special Jurisdiction for Peace, Colombia also addressed the event.
Contact
Kaajal Ramjathan-Keogh – Lead, Women’s Access to Justice Project, International Commission of Jurists, t: +27 84 514 8039 e: Kaajal.Keogh@icj.org
Laxmi Pokharel, National Legal Adviser, International Commission of Jurists, t: 977 9851047588, e: laxmi.pokharel@icj.org
Background
The 2015 Constitution of Nepal established Nepal as a federal State. Article 56 of the Constitution stipulates a three-level State structure – federal, provincial and local. In Nepal, one federal, seven provincial level and 753 local level governments are presently functional to execute the spirit of federalism envisioned by the Constitution. Each level of Government has separate and independent powers and responsibility.
The Local Government Operation Act, 2017 (LGOA) is enacted for the effective operation of judicial committees. Section 46 of the LGOA states that there shall be a judicial committee in every municipality and rural municipality in accordance with Article 217 of the Constitution. Section 47 (1) of LGOA has listed 13 specific cases that judicial committees have jurisdiction to settle disputes, and section 47 (2) has listed 11 specific cases which can be settled through mediation by judicial committees. In those cases, if the mediation is unsuccessful, they are mandated to refer the case to the district court for adjudication
Section 49 of LGOA states that judicial committees may attempt mediation with a conflicting party in all cases brought before the committee and if the mediation process fails such cases must be sent to courts for adjudication.
As per Article 148 of the Constitution, these judicial committees shall operate under the supervision of the respective District Court.