CHAPTER 1 INTRODUCTION 1.

1 Introduction of the study Decentralization is an umbrella term to denote the transfer of power from the Center of the State to the Local Bodies. Delegation, de-concentration and deregulation all leads to decentralization which is final goal of the power transfer. Decentralization is a principle, which is being implemented in practice by local bodies. Decentralization is a system whereupon power, responsibility and obligation of center transfers to lower level authority by legal arrangement and in this system, state provides services and facilities to people in easy and familiar way. Decentralization is a kind of process of people participation in governance system through local elected institution by way of limited autonomous process; decentralization is also called as an institutionalization of local democracy. "Decentralization is a process of separation of powers or division of power or division of power".1 Decentralization as a tool of public participation on governance has a very important role in development of every developing country like Nepal. "Local self-governance is a system of governance, which is done by people's elected local institutions. Despite their existence under the central government, they have powers and duties to do several works on local level. They use their power as well as wisdom without control of any superior authorities".2 Rule of Law has been recognized as fundamental aspect of the Democratic Republic of Nepal and has constitutionally guaranteed an independent and competent Judiciary. The constitution identifies decentralization as directive principle of the state. The constitution further reads "the objective of the State shall be to maintain peace and order, protect and promote human rights, promote public welfare in the society, and create opportunities for the maximum participation of the people in the governance by way of self governance ...."3

Dr. Surya Dhungel. Concept, Implementation and Institutional Inter-relation of Decentralization, Contemporary Legal, Political & Parliamentary Problem, Vol 1 (SCOPE, Kathmandu- 1993),p.1 Ganeschandra Adhikari. Concept of Local Self Governance, 1st (ed.) (Urban Area Development Project by Local Effort, Kathmandu, 2049), p. 11 Local Self Governance Act, 1999

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Although the constitution explores about the delegation of powers, provisions about independent and competent judiciary, questions regarding the structures and role of local bodies, their judicial powers, their financial powers are not answered in constitution itself. Rather, statues made under the constitution have been used as a tool to identify the LGs and their separate identity along with the vested judicial, administrative and legislative powers. Giving verdict and thereby justice to conflicting parties for any conflicting case/issue is the power of judiciary. Evaluation of proofs and use of judicial mind are the most important faculties of judicial decision. So, judicial activity consists of technical aspects too. Acknowledgement of law, knowledge of precedent etc. are some inherent aspects of justice delivery. In line with the Interim Constitution of Nepal 2063, the legislation has formulated and implemented an Act on local bodies called Local Self Governance Act, 1999 (hereinafter LSGA) whereon principle and policies of local governance are clearly mentioned. Similarly, Local Self Government Rules 1999 has also been implemented under the LSGA. LSGA provides absolute judicial power to both Village Development Committees (VDC) and Municipalities (MC) for the settlement of petty cases4. We are strangled in the way of constitution making process and it's a big challenge for all of us to drag the politics back on track to constitution making process via public pressure. Eventhough, the first importance is of course is on making of constitution, but what should not be forgotten that such constitution must include the measures and ways for decentralization. 1.2 Statement of the Problem Judicial power of LGs is necessary for easy, quick and effective justice delivery. Having been directive principle of the constitution and also implemented an Act regarding decentralization known as LSGA 2055. This study encompasses various issues including the main problem of the study: 1. Whether the judicial power of Local Governments is sufficient or not, if not why?

Local Self Governance Act, 1999 Section 33 & 101

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1.3

Objectives of the study Every study or research work must contain an objective. This research work is

not an exception. This study will try to achieve the following objectives: 1. Explore decentralization and local self governance, 2. Historical development of judicial power of Local Governments, 3. Analyze judicial power of LGS under LSGA vested to Local Governments in line with LSGA and LSGS. 4. Suggest in solving the problems of judicial power of LGs in present legal scenario. 1.4 Significance of the study Decentralization and local self-governance are main tools for inclusive progress of country. Nepalese are facing several problems due to lack of proper decentralization. Statutory provisions on judicial power of LGs have recognized in LSGA 1999 but practically, these are not seen yet. This study would attempt to suggest how judicial power of LGs is executed in performance. Some significance may be drawn as under; 1. This study would try to build an idea about judicial power and its practical execution, 2. Methods of delegation of judicial powers to the Local Governments, 3. Concept significance of judicial power of Local Governments in Nepalese context, 4. This study would be helpful for the individuals being actively involved in field of the local governments as well as those who seek knowledge of judicial powers of local governments, 5. It would be helpful in developing policies about judicial power of LGs and 6. Advise some useful proposition about development of existing statutory provision. 1.5 Limitation of the study Every research work and study has limitations and so does this study. It is very difficult to encompass the provisions related to the decentralization. Globally, there
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are so many books and journals already written and many might be in the process of getting published. In such context, it is virtually impossible to analyze the propositions forwarded by those scholars. Thus, in order to give a fine tune to the study, this study merely tries to search and analyze the statutory provision and historical backgrounds of judicial power of LGs in Nepal. Basically, this study collects the provision of judicial power of LGs from existing LSGA 1999 and LSGA 1999. 1.6 Methodology The methodology of this study depends on doctrinal method. Both of primary and secondary sources of data which are collected from different libraries and institutions are used equally as per necessity. 1.7 Review of Literature Lack of particular literature in context of Nepal has affected the literary review of this study. Only very little number of concerned literatures is found. So, in this study LSGA, 1999 is primarily reviewed as relevant literature and other relevant books, reports, journals and articles were reviewed as literature. Judicial Power of the Local Bodies in Nepal5", written by Prakash Wosti and others, mainly covered Rationale of judicial power of LGs, historical background of judicial power of LGs, Judicial power to hear and conciliation under Village Development Act, 2048 etc. Mukti Rizal in his article "Local Bodies and Judicial Power: A Brief Analysis"6 discussed on Judicial power of LGs means generally VDCs power to hear and conciliation of local petty cases, historical background of judicial power of LGs, lack of judicially competent manpower for delivery of justice. In the article "Judicial Power of Local Bodies", written by Kashi Raj Dahal7 primarily denoted Concept of judicial power, rationale of judicial power of LGs.

Prakash Wosti, Bed Prasad Siwakoti and Kashi Raj Dahal. Judicial Right of the Local Bodies in Nepal. (NLS Kathmandu. 1992) Mukti Rizal. Local Bodies and Judicial Right: A Brief Analysis, Law Bulletin. Year 6, Vol. 52, (NLS Kathmandu 2048), pp.27-33 Kashi Raj Dahal. Judicial Right of Local Bodies, Good Governance, Foundation of Local Democracy.

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Historical background of judicial power of LGs, short description of LSGA provided judicial power of LGs. These above mentioned literature are used as per necessity of the research paper. 1.8 Organization of the study The first chapter deals with introductory part of study, the second chapter denotes to conceptual framework of the study, similarly, the third chapter contains judicial power of LGs in Nepal. The fourth chapter concerns the Review of judicial power of LGs and the last or fifth chapter covers the finding of study, conclusion and Suggestions.

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CHAPTER 2 CONCEPTUAL FRAMEWORK 2.1 Brief Description of the Country Nepal is a landlocked country located in South Asia bordering India to the east, west and south, and the Tibetan Region of People's Republic of China in the north. Mount Everest, the highest peak of the world, also lies in Nepal. Kathmandu is the only Metropolitan City besides being the capital city. The total area of the country is 147,181 sq. km. Even within this small geographical area, the country hosts variance in climate, weather as well as other various geographical factors. The country is situated between 8004' and 88 12' east, and 26 22' and 3027' north. The Himalayan ranges of the country are the great part of the long Himalayan range. It has been divided into various regions regarding geographical, ecological, administrative and political aspects. Geographically, the country is divided into three broad regions: the Mountains (bordering China), the Hills (bordering India and China) and the Terai (bordering India), constituting 35, 42 and 23 per cent of the total land area respectively. The total population is 26.49 million having average annual exponential population growth rate of 1.35%, where only 17.07% of people resides in the Urban area. The population density is high in Urban i.e. 1381 per square km. and moderate in rural area i.e. 153 per square km.8 Socio-culturally, Nepal is a multi-lingual, multi-religious, multi-ethnic and multi-cultural country. Nepali is constitutionally recognized as the official language but all other languages spoken in the country have been recognized as the language of the Nation by the Interim Constitution 2063. Hindus, Buddhist, are the two predominant religious groups in Nepal as per the 10th Population Census 2011. The country is divided into 5 Development Regions and 14 Zones as per administrative division of the country. Further, 75 Districts, 58 Municipalities (including One Metropolitan, 4 Sub-Metropolitans and 53 Municipalities across the country.

Central Bureau of Statistics of Nepal, Summary of Population Census 2068.

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2.1.1

Judiciary in the Country Regarding Judiciary, the Interim Constitution 2063 has provisioned

three levels of Courts i.e. Supreme Court, Appellate Court and District Court. There is one Supreme Court at the top level, 16 Appellate Courts and 67 District Courts in the country. Provisions to establish other courts i.e. Special Courts, courts to decide on election matters have also been stated in the Interim Constitution. 2. 2 Decentralization and Local Self Governance A theoretical Aspect Decentralization means a "political decentralization whereby local units of government with independent powers are established."9 Further, political

decentralization is just only aspect. Decentralization in true sense involves executive, legislative and judicial decentralization from the status apparatus to the lower level people. In other words, transfer of executive power, legislative powers and judicial powers from the central government to the local governments that are run by local people. Such transfer of power is possible only when there is elected local governments because decentralization engages diverse forms of transferring responsibility from central governments to local government that involves political, administrative and judicial transfer as stated above. This is referred to as devolution. Decentralization is a method of people's involvement in governance system through locally elected institution. Decentralization is also called as

institutionalization of local democracy as it renders people the power to actively participate in the governance system, eventhough, in the local level. Among its various meanings and definitions, decentralization has been defined as transfer of responsibility for planning, management and allocation of resources from the central government ministries or agencies to subordinate units."10 It is not possible and viable for the central government to look at all the issues of the people. On the one hand it is costly affair and on the other hand people's problems and
9

10

Dharmaraj Paudel. Local Governance and Democratization, Experience of Decentralization and Local Self Governance in Nepal: challenge and Vision . (A DDCN, 2055). P.27 UNDP. Nepal Human Development Report 2001, Poverty Reduction and Governance (UNDP. Kathmandu, 2002), p.72

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aspirations are not known to the Center as much as it is known to the local governments. 2.2.1 Decentralization as a Practice in Nepal The constitution identifies decentralization as a directive principle of the State: "the objective of the State shall be to maintain peace and order, protect and promote human rights, promote public welfare in the society, and create opportunities for the maximum participation of the people in the governance by way of self governance ." 11 Principles and policies of local self-governance are clearly mentioned on LSGA 1999. The act has provisions on devolution of powers and authority to LGs. It desires to institutionalize development process by increasing peoples' participation on the task of operation, division of means, and equal and balanced distribution of resource for development of their own region. Government will pursue various principles and policies of local selfgovernance to achieve true essence of the decentralization. In our context and in the world history too, emergence of concept of decentralization is the result of historical necessity and people's wide demand and desire to be involved in the governance system. The concept of decentralization has been classified into four different categories, namely deconcentration, delegation, devolution and privatization. Decentralization as a tool of public participation on governance has a very significant role in development of every developing country like Nepal. Decentralization is a principle, which is being implemented in practice in Nepal by local governments. Hence, local bodies as machinery of decentralization play important role in nation building and development. There are "two fundamental dimensions of decentralization namely (i) decentralization as a means and (ii) decentralization as a philosophy. As a means, decentralization is a process of transferring functions and powers from central to local government units and organizations. As a philosophy, decentralization entails the sharing of powers and functions between and

11

The Interim Constitution of Nepal, 2007, article 34(2)

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among various levels of governments and other public and non-public organizations and agencies as per the constitutional provision and other legal stipulations and the activities undertaken by the central government to create and institutionalize the local government institutions and other agencies and organizations and enable them to identify and respond to the local needs and priorities, mobilize and allocate resources and deliver services efficiently to the local people and communities"12. In short, means of decentralization is practical aspect and philosophy of the decentralization is its theoretical aspect. Practice is essentially governed and manipulated by the theoretical aspect of decentralization. "Constitutional and legal requirements are undoubtedly indicating requisite and significance of decentralization on our context. One difference in the present decentralization movement is that it is a result of the democratic process and associated with the liberation of political aspirations and the establishment of plural political institutions at all levels of society."13 2.2.2 Local Governments A local government can be defined as locally elected self governing/autonomous and multipurpose political institutions delivering goods and services to the people of a legally demarcated locality to whom it is accountable and performing other functions legally conferred to it by its creator-the central government to whom it has upward responsibility14. Local self-governance is autonomous institution of local people that is incorporated by election for versatile development of local area and it has legal power to activate all programs, which are related to increase life standard of local people15. In summary, local self-governance, we can define it, as is a process of governance at which lower level authority has legally power, responsibility
12

13 14

15

Tulsi Narayan Shrestha. The Concepts of Local Government and Decentralization. 1 ed. (Ratna Pustak Bhandar. Kathmandu. 1996) p.63 Donald Curtis. Support for Decentralization in Nepal. UNDP, 1992 p.59 st Tulsi Naravan Shrestha. The Concepts of Local Government and Decentralization. 1 ed. (Ratna Pustak Bhandar, Kathmandu. 1996). p.6 st Ganeshchandra Adhikari. Concept of Local Self Governance. 1 (ed.) (Urban Area Development Project by Local Effort, Kathmandu, 2049). p.11

st

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and obligation to provide services and amenities for buildup of peoples life standard by peoples own contribution in power process. Democratic system of governance is precondition for organization of welfare state. Cause of emergence of institution as Local self- governance for completion of this sort of requirement. It is very essential to slot in and function of local independent institutions for making welfare state more productive and significant to people. Local self-governance is obligatory reality of modern circumstances. "Local people have opportunity to widest involvement in governance themselves through their own elected representatives, is [the] concept of Local self governance." 2.3 Justice, Judiciary and Concept of Judicial Power Each and every society in the world suffers from conflict. Concept of justice aroused from the fact that conflict can only be minimized no prevented. So, the principle of judiciary and judgment system developed all over the world. The wise method is to seek the way out in the court room with explanation of facts and issue. The better the judgment system the better will be the justice. "Justice is issuing of decision by inventing truth and making it favorable to value and norm of time and human thought."16 However, it must be noted that, justice cannot be delivered of the ashes. Analysis of facts and issues, analysis of the legislative mandates, proofs, evidences, and analysis of legal provisions are the primary factors affecting the delivery of justice or judgment process. "Judicial task is task to giving decision over disputes between conflicting parties that might be either people and people or people and government with evaluating arguments, evidence and pleading of both sides by determining which law should be prevailed on the particular dispute. It is power of the court and this task of delivering justice is called judicial task."17 Giving verdict and thereby justice to conflicting parties for any conflicting case/issue is the power of judiciary. Evaluation of proofs and use of judicial mind are
16 17

Rewati Rarnan Khanal. Outline of Legal Hisiory of Nepal. 1 ed. (Kathmandu. 2059), p.69 Na Su. Mukti Sharma vs. S.F. Tek Bahadur Raymajhi, NKP 2017 (Reprinted by Saman Publication Pvt. Ltd 2057), p. 110

st

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the most important faculties of judicial decision. Judicial activity consists of technical aspects too. Acknowledgement of law, knowledge of precedent etc. are some inherent aspects of justice delivery. So, "judicial power is power of delivering justice on the conflicting issue with evaluation of proofs and use of judicial mind."18 Judiciary controls the Balance of Power of the Government bodies i.e. executive, legislative and the judiciary itself. 2.4 Necessity of Judicial Power of Local Governments and Decentralization Today's world is the world of 21st Century. People desire for fast decision for everything and judiciary cannot be an exception. As "justice delayed is justice denied", one should not be made wait longer for getting judgment or justice. But, due to demographic, geographic, infrastructural, human resource, technical as well as numerous other reasons, it might not be feasible to reward people with timely judgment on issues of conflict. Nepal is a developing country and that lacks fundamental requirements in order to give verdict in timely manner. So, decentralization has become a necessity in Nepal in order to reduce the number of cases in the formal courts and to provide people with fast judgment in minor cases. As already explained, decentralization of judicial power is inherently connected with decentralization itself. State's authority cannot be transferred to the local authorities in true sense until and unless the power of judiciary is transferred to local level. Decentralization is all about peoples involvement on development and decision making process indicating re-allocation of powers from the central government to the people. Decentralization is a process of people's participation in government through locally elected bodies. It improves transparency, responsibility and accountability on the side of government and authorities towards the people by way of constant surveillance by the people to the locally elected bodies working on local level. It helps to refine government services and facilities to the people with constant vigilance over government authorities by the people directly. Further, the local bodies consist of the representatives of the peoples of local area so they are bounded to give justice to themselves by giving justice to their own region/area/locality.

18

Kashi Raj Dahal. Judicial Right of Local Bodies. Good Governance: Foundation of Local Democracy. Ganga Bahadur Thapa ed. (POLSAN. Embassy of Finland Kathmandu. 1999). pp.122-129

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Decentralization means not only transfer of executive powers from center to grassroots but also the transfer of judicial decentralization. Thus, transfer of executive, administrative, economic coupled with judicial power from the central government to the local authorities is decentralization in true sense. The people has right to access to easy, inexpensive and straightaway justice. Justice is, along with social and human issue, a technical issue too. As such, transfer of judicial power and authority cannot be transferred hastily to the LGs without proper arrangement and management of necessary infrastructure. Here major infrastructure does not focus on physical infrastructure but the human resource having technical knowledge of the legal procedures and concepts. Transfer of judicial power to the Local authorities is inevitable. It is required to provide the people an inexpensive justice at their own locality from the people who know the locality. In this regard, transfer of judicial power also includes building of necessary human resource at least by providing trainings at the local level to the local people who will be finally engaged in deciding cases on local level. Judicial power may be, thus, regarded as an inherent power as well as right of the local people. To respect the inherent power of people, each and every nation should establish and activate the machinery of judicial decentralization. Hence, "if there is no provision for use of judicial power in local level, principle of decentralization has no any rationale."19 2.5 Governance System and Judicial Power of Local Government Needless to mention, state is the combination of Population, Sovereignty, Land and the Government. Similarly, state is the combination of executive, legislative and the judiciary. Thus, the function of the states is categorized into three categories: a) executive function, b) legislative function, and c) judicial function. Local governments, being themselves the government on local level by virtue of transfer of power from the State apparatus or Central Government, should have all those functions of Central Government i.e. executive, legislative and judicial. To give true essence of decentralization in, LSGA, that governs the aspects of decentralization

19

Kashi Raj Dahal. Judicial Right of Local Bodies, Good Governance, Foundation of Local Democrary. Ganga Bahadur Thapa ed., (POLSAN, Embassy of Finland Kathmandu. 1999). p. 124

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in Nepal, has delivered the above mentioned rights required for them. As such LSGA 1999, has set the three main functions for MC and VDC as follows; a) Executive function: Collect of tax and revenue20, implementation of plan and program med relating to agriculture, construction and transportation, education and sports. Physical development, health, forestry and environment, language and culture, etc.21 b) Legislative function: pass the budget, plan and program,22 pass resolutions to collect tax and revenue,23 formulate bylaws.24 c) Judicial function: proceed and settle various types of cases.25

20 21 22 23 24 25

Local Self Governance Act, 1999, Section 55-57, 136-145 Ibid. section 28 & 96 Id. section 26(1 )(a) & 96(1 )(a) Id. section 26(1)(b) & 96(1)(b) Id. section 265(2) Id. section 33-41 & 101-109

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CHAPTER 3 JUDICIAL POWER OF LOCAL GOVERNMENTS IN NEPAL 3.1 Rationale of Judicial Power of Local Governments Lack of legislative body (after the Constituent Assembly dissolved) resulted into shortage of required number of Justices in Supreme Court as Parliamentary hearing is a mandatory provision for recruiting Justice in Supreme Court as per the Interim Constitution of Nepal 2063. So, Parliamentary hearings could not be conducted resulting into vacant seats of Justice in the Supreme Court. Now the problem has further sustained as that election of Parliament or the Constituent Assembly is in dilemma. This has affected the procedure of judge appointment in lower level courts too, namely, district courts and appellate courts. Consequently, the decentralization of judicial power to locally elected bodies through legal means has become necessary phenomenon. On the one hand, workload of court is increasing and justice is not easily accessible and other, as petty disputes are also under jurisdiction of regular court, justice is a far cry for the general people. Justice delivery has also been strangled as a result of our geographical circumstances too. To address these problems, Court Management Committee has suggested that "by adopting concept of decentralization local authority should be empowered to settle petty cases through process of arbitration and it should he spelt out on concerned laws of local bodies and it is necessary and suitable that power to settle of several petty cases should be provided to arbitration committee."26 Definitely, the local authorities have knowledge about local problems and conflict so they can better provide proper justice to people located at their surroundings. This sort of justice administration system supports to increase peoples trust in governance system and process. It also helps to have Good-Governance. The persons, who know the background as well as resulting consequences of dispute and also the nature of disputant parties closely, may settle the dispute in a better way. Settlement of the legal disputes of petty cases keeps the parties away from lengthy and tedious procedures of the court.
26

Honorable Justice Keshav Prasad Upadhyay. Presided Court Management Committee. Suggestive Report on Court Management, 2055. (Kathmandu, 2055). p. 12

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Moreover, settlement of case through the court is a very costly affair. Uneducated and illiterate people from the rural areas are not able to follow technical rules of the court. Hence, "entrusting power to the LGs seems appropriate. It reduces the cost of litigation, avoids unnecessary delays, and reduces the burden of court."27 Fundamentally, rationale of judicial power of LGs is that it saves time, money and resources of people. As such, petty cases are on the rise in court rooms, effective and better justice can be provided to the local people only through decentralization of judicial power to the LGs. Appropriate arrangement of justice delivering institutions for easy and inexpensive justice to people should always be the subject of research because no one can invest more time, labor and money to get justice on petty cases. It is not an easy task to access of justice through lengthy and tedious process. Due to all these reasons, it has become very urgent and necessary that LGs settle the petty civilian cases themselves. 3.2 Local Governments and their Jurisdiction Nepal consists of Terai, Hill and Mountain regions. Division of administrative and judicial bodies across the country might be inadequate due to lack of necessary infrastructure on the part of government. As the country itself is a developing country, it lacks resources and money to establish such institutions across the country. Thus it has become necessary to delegate judicial power. The LSGA 1999 reads, "LSGA has provided LGs to hear and settle following cases."28 a. Cases or border/boundary of land, public land, Sandhi Sarpan (inconvenience in respect of boundary or way-outs), Aali dhur, canals, dams, ditches or allocation of water and encroachment on roads or wayouts. b. Cases on compensation for damage of crops, c. Cases on forced labor (Beth beggar) and cases under the Chapter on wages. d. Cases under the chapter on paupers, e. Cases under the chapter on missing and finding of quadrupeds f. Cases under no. 8 and 9 of the Chapter on construction of Houses
27

28

Badri Prasad Bhandari. Judicial Rights of the Local Bodies Under Local Self - Governance Act, 1999. Nayadoot, Year 33. Vol 4 No.134. (NBA 2003). p.129 Local Self Governance Act, 1999, Section 33 & 101.

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g. Cases under the Chapter on Kalyan Dhan (hidden and unclaimed properties). h. Cases under the Chapter on Deposits expect those under No. 5 of that Chapter. i. Cases on providing expenses for food and clothing according to status and income under No.10 of the Chapter on Partition, j. Cases on uses of water bank (ghat) and security of public property, k. Cases under the Chapter on Quadrupeds other than the killing of cow, l. Cases on pasture land, grass, fuel woods, m. Cases on entering into, staying in or attempting to enter in or stay in others house forcefully, n. Except those cases referred to in Annex-i and Annex-2 of the Government Cases Act, 2049(1993), such other cases as assigned by Government of Nepal by publishing a notification in the Nepal Gazette. LSGA has focused on mutual understanding and conciliation before proceeding in any cases, complaints and conflicts. Even if the case proceeds forward, it is the, arbitration board that shall exercise judicial power of LGs. Rule 54 of LSGA 1999, has provisioned regarding the appointment of Arbitrators. As such, at first instance, it attempts to settle cases in the form of conciliation as far as possible, in condition of failure to attempt of conciliation the board delivers decision. 3.3 Dispute Settlement Procedure under LSGA Eventhough, LSGA has provided such judicial authority and explicated about the procedure of settling the particular and locally emerged cases at first instance. As stated in section 33 and 101 of the act, it has put restriction that such judicial power will be come into effect from such date as may be prescribed by Government of Nepal by publishing a notification in the Nepal Gazette. And such notification has yet to be published and thus, judicial power of LGs has not activated yet. Regarding procedure of settlement of case, LGs use their judcia1 power through an arbitration board as per the LSGA 1999. Three members arbitration board shall be formed from amongst the persons enlisted in the list of arbitrators, to hear and settle the cases filed in LGs under section 33 or 101 of LSGA. In cases the parties to a case fail to reach an agreement in the appointment of arbitrators by LGs, the parties
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should appoint each arbitrator of their own and provide the name of such arbitrator to the LGs and LGs appoint the other arbitrator. If disputant parties fail to send name of arbitrators LGs appoints all three arbitrators on their own. On all conditions, LGs will designate one arbitrator as the chairman of the arbitration hoard.29 For the purpose of hearing and settling the cases filed, LGs will prepare a list of arbitrators, setting out their names, surnames and addresses as well, comprising the local persons and social workers including the women and backward community and will get it published in the respective offices of LGs.30 The arbitrators collectively exercise their jurisdiction and the decision is taken on the ground of opinion of majority. If the arbitrators hold different opinions, an opinion supported by concern LG prevails on that matter.31 The arbitrators to the extent possible cause the parties to negotiate with each other on the case submitted to them and have the case compromised.32 In the cases where the arbitrators fail to settle the cases by compromise, they exercise their jurisdiction on such case and decide it.33 lf the arbitration board fails to achieve the compromise between disputant parties or fail to reach the majority or unanimous decision, their decision shall be submitted to concern LGs and the opinion supported by the LGs shall prevail. Thats why regarding provisions on procedures for the settlement of disputes we can clearly reach in the conclusion that LSGA has accepted both mediation and arbitration as a process for settlement of cases.

29 30 31 32 33

Local Self Governance Act, 1999, Section 34 & 102 Ibid. Section 35 & 103 Local Self Governance Act, 1999, Section 36 & 104 Ibid. Section 37(1) & 105(1) Id. Section 37(2) & 105(2)

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CHAPTER 4 REVIEW OF JUDICIAL POWER OF LOCAL GOVERNMENT 4.1 Problems on Judicial Power of Local Governments "A dog that barks do not bite" has been fully in line with the current situation of the judicial power of the Local Bodies. They are granted with the judicial power but such power has not been activated by publishing necessary notification to activate in Nepal Gazette as prescribed in the LSGA 1999 itself. So, at first instance, judicial power of the LGs has been handicapped as such power cannot be exercised. "It is as if the showpiece teeth of an elephant." Justice delivery is a crucial task. It is very hard to find a solution in which all the disputant parties have a win-win situation on the disputed matter. As such, taking into consideration the gravity of disputes, the task of justice delivery is hard, and difficult, requires theoretical knowledge and in most cases causes at least one party to the case suffer from the outcome. Moreover, delivery of justice is the task of a court of justice. But, it is not always viable in all conditions and situations. Besides, Nepal is a geographically very complex and remote and the people find it hard to have easy access to the judiciary bodies i.e. Courts. Due to the lengthy process of formality and overload of several cases in the courts, it is hard to get justice in proper period. Constitutional provision clearly denotes that "powers relating to justice in Nepal to be exercised by courts and other judicial institution in accordance with the provisions of the Constitution, the laws and the recognized principles of justice."34 "Every judicial authority requires the wisdom, the sagacity, broadmindedness, catholicity of outlook, constitutional culture and the goal of justice system."35 LGs exercise their judicial authority only through Arbitration Board as spelt out in section 34 of LSGA 1999. It plays role as main tool of settlement of disputes. Arbitration Act, 2055 is a separate statute regarding arbitration. On the comparison between these two statutes, there are not only many gaps in LSGA but it is contradictory to Arbitration Act, 2055. LSGA has delivered power-of hearing of

34 35

The Interim Constitution of Nepal 2007 Article, 100 Ramkrishna Timilsena. Basic Procedure and Other Related Subjects on the Course of Decision Process of Quasi Judicial Authority. Nvaydoot Year 32. No. 3, Vol. 126. (NBA 2058). p.29

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appeal to District Court on the decision of Arbitration Board.36 But Judicial Administration Act, 2048 did not give any power of hearing of appeal to District Court. Some Public (Crime and Punishment) Act, 2027, Local Administration Act, 2028 and Forest Act, 2049 has authorized Chief District Office (CDO) to settle the disputes about unauthorized entry into or stay in the others house, the disputes about protection of public property and the disputes about pasture land, grass and fuel woods in the area of National and Government Protected forest. The main problems on the judicial power of LGs could be mentioned as under: (a) Contradiction to Legal Provision Constitution provides the judicial authority to the courts but has not described about the judicial power of local governments. According to constitution, LGs could be treated neither as court or judicial institution nor as special court or tribunal. There is no any provision mentioned in the Constitution regarding the judicial power and authority of the Local Bodies. By the view of separation of power and the above mentioned constitutional phenomenon, how much appropriate to give judicial Power for LGs.37 A writ petition was filed in the Supreme Court challenging the delegation of judicial power to the VDCs and MCs on the ground that judicial power was to be exercised by the court and demanded that section 33 to 42 and section 101-110 of LSGA are inconsistent with the article 84, 85 and 86 of constitution hence, these provisions should he declared as null and void ab initio. Apex Court quashed the writ on the ground that these concerned provisions have not been activated by publishing notification on Nepal Gazette. Government should publish the date of activation of these provisions raised on petition and making the provisions consistent with constitutional provisions. There is no condition of analyzing whether inactive provisions are consistent or inconsistent with constitution.38

36 37

38

Local Self Governance Act. 1999, Section 40 & 108. Shambhu Prasad Gyawali. Use of Judicial Right, an Unveiled Aspect of the Constitution. Kanoon Vol 17. (Lawyers Club 2056). pp.47-48 Advocate Kalam Bahadur Khatri vs Secretariat of Parliament Singhadarbar and others, KP 2058. No.5\6. p.43

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Judicial Administration Act, 2048 has arranged provision about jurisdiction of District Court. It has power to hear and settle at first instance all the cases within its territory, except otherwise provided by other prevailing laws.39 (b) Conflict of Jurisdiction Conflict lies in the jurisdiction of the judicial power of the LGs. Some examples may be drawn as under: Section 2(e) of Some Public (Crime and Punishment) Act, 2027 has authorized Chief District Office (CDO) to settle the disputes about unauthorized entry into or stay in the other's house. By contrast, LSGA has made provision to give this authority to LGs. Further, section 9(6a) and 10.A.(2) of Local Administration Act, 2028 has made provision that CDO has power to settle the disputes about protection of public property. In contrast, LSGA has made provision to give this power to LGs. Moreover, section 49 of Forest Act, 2049 has authorized District Forest Officer (DFO) to hear disputes relating to grazing and falling of trees in the area of National and Government Protected forests. In contrast, LSGA has made provision to give this power for LGs Arbitration is used to resolve commercial disputes but LSGA has made provision to use arbitration for solving only the socio-legal disputes. Thus, there are contradictions in the provisions on various legal documents such as Local Administration Act, LSGA, Some Public (Crime and Punishment) Act, 2027 etc. Such contradictions also give rise to problem on jurisdictions of LGs. Political Control on Justice, lack of manpower, lack of people's representative in local bodies are far reaching problem of the local governments in the present context. More importantly, election have not been conducted since 2055/56 for the peoples representatives in the LGs, this has added severe consequences regarding the transparency in the conduct of the LGs not only in the Judiciary issues but also in the day to day administrative issues to. After the People's Revolution or April Movement of 2062/63, oncept of decentralization through federalism has been in discussion in Nepal and also the
39

Judicial Administration Act, 2048. Section 7

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fundamental aspect of the Interim Constitution of Nepal 2063. Federalism, also one of the directive principles of the Constitution, has not been in practice since there is no legal provision regarding the same except in the Constitution. So, it has become vague to decide on the power of judiciary pertaining to the local governments because of the new concept of federalism. 4.2 Essence of Judicial Power of Local Governments (a) Effective and Inexpensive Justice Fast, easy, effective and fair judgment and justice delivery is the need of the time. While delivering justice from court rooms, it takes lengthy formal procedure, more money and it takes time to settle the case. Effective and inexpensive justice is necessity of society and an urgent need of the present 21st century and a major measuring instrument of the success of any state machinery too. Easy settlement of social/local conflicts and disputes creates environment of peace and harmony in the society. Peace and cooperation in society is possible only when judicial process become transparent and accessible and people get effective and inexpensive justice. Today's unrest and fighting in the world is because of unhealthy and un-accessed justice by the people. Thus, social institutions should be strengthened and made more capable of handling the social problems having far reaching effect. Local persons on LGs and the arbitration board of the same closely know the consequences of dispute and nature of disputant parties, so they can settle petty civil legal disputes better. It keeps the parties away from lengthy and tedious procedures of the court. From Supreme Court to the District Court, all the courts are filled with hundreds of cases and many of such cases could have easily been handled and arbitrated in local level had there been adequate system of judiciary on local level. So, it becomes imperative to delegate judicial power to the local bodies. Uneducated or illiterate people from the rural areas are not able to follow technical rules of the court. Hence, entrusting power to the LGs seems

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appropriate thereby reducing the cost of litigation, avoids delays, and reduces the burden of court.40 (b) Easy Access to Justice Let alone the Appellate courts, there are not even required number of district level courts in Nepal. We have 75 districts but only 67 district courts. How could the people get justice easily when there is not even a district court in their districts. Thus, delegation of judicial power to LGs has much importance to award the people right to get easy access to justice. Further, LSGA 1999 and LSGS 1999 have simplified procedures for settlement of cases. And each and every VDC and MC are empowered to hear and settle disputes, as mentioned on LSGA. It has decentralized justice from at least district level to VDC, and MC. (c) Justice at the Doorstep Problems and disputes of one particular local body naturally differ from another local body. When the problem itself differs, the resulting judgment system and justice inherently differs from case to case basis. Surroundings, locality and environment affect the incidents and cases. Thus, the solution and settlement problems and disputes should be local based. Hence, the meaning of justice of Doorstep. People must get justice at their doorstep to get the fair justice. Justice delivering from LGs is effective as well as practical too apart from delivering justice at the doorstep. It is the need of the time too.

40

Badri Prasad Bhandari. Judicial Rights of the Local Bodies Under Local Self-Governance Act, 1999. Nayadoot. Year 33. Vol 4 No.134. (NBA 2003). p.129

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CHAPTER 5 FINDINGS, CONCLUSION AND SUGGESTIONS 5.1 Findings Delivery of justice is the task of the court of justice. But due to the lengthy procedures and pile of cases in the courts, it is hard to accomplish justice in timely manner. Due to lack of sufficient manpower, resources and lack of sufficient number of court of justice, justice delivery is being delayed. "Justice delayed is justice denied." Delayed justice gives more pressure to the victims than the injustice. Every judicial authority needs vital essentials such as proper information of principle of law and justice, impartiality and wisdom. Political interference on local people, and political control on justice has raised doubt over the ability of LGs judgment. The contradiction existing among laws has caused problems for implementation of decentralized judiciary in the country. Fairness and impartiality are the indispensable qualities of justice. By contrast, how a politically discriminated person nominated or elected in local bodies could follow the previous mentioned qualities of justice. LSGA is conflicting to other legal provisions regarding jurisdictions to hear and resolve the disputes. There is constant lack of infrastructure on the local bodies to impart justice. Also, there is lack of human resource to technically understand the judicial problems and resolve the same. Justice delivery is not the children's game. The government hasnt published necessary announcement to apply statutory provision of judicial power of LGs as provisioned in LSGA regarding notification in Nepal Gazette.

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5.2

Conclusion Decentralization is the need of the time. Not only people aspire for delivery of

state facilities and services at their doorstep but also the solution to the conflicts that arises as a result of day to day to contact between human beings, humans and legal persons. In line with the spirit and provisions of the Interim Constitution of Nepal 2063, LSGA has set out policy and principle of decentralization and local selfgovernance. People's participation on governance is major goal of the decentralization. It improves transparency, accountability and responsibility on the part of government regarding the facilities, services to be provided to the people from the State. Procedural tediousness of the formal courts give rise to the need of alternative dispute resolution (ADR). Thats why LSGA has also adopted concept of ADR for settling of locally appeared disputes. In our country courts are suffering from pile of cases on general matters. Judicial bodies are full of cases and as a result justice delivery is being delayed. Thus, the importance of ADR and arbitration for solving legal problems is heightening. In this context, judicial power of LGs could play important role in upgrading judicial system. It helps entire judiciary to reduce work loads of courts. The judicial Power of LGs has further importance basically because of the easy and less costly access to justice for the people. It proves the concept of democracy in out context for the people, by the people and of the people mainly because it renders justice to the people at their door steps. Judiciary at the local level is indispensable and an inescapable part of present governance system. Even if we are to constitute a Federal Governance System, the concept of Decentralized Judiciary has to be adopted vigorously in order to solve the people's dire effort to get timely justice. Decentralized judiciary will surely strengthen the judicial system of the country on the whole. This will affect on all other power strata from legislative to the executive thus rendering good environment for the governance system. Restriction on imparting justice by the Local Governments as per the provision on LSGA should be amended to create fair environment for the LGs. Eventhough, there have been proper and sufficient legal provisions made by the legislative of the country, such provisions have not yet come into effect because the
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government has not published such provisions in Nepal Gazette as necessary requirement for activating the legal provisions. Despite having various problems on grass level of LGs, efforts should be made to set up to impart justice from LGs. 5.3 Suggestions Present study paper has various findings regarding the judicial power of the Local Governments. It has reviewed the legal provisions thereof. Nothing in the world is complete in itself, everything has lapses and weakness and so does the provisions related to judicial decentralization in Nepalese context too. It is not bad that we have lapses in our legal documents but it will be surely bad if we do not recognize them in time and amend them in order to propagate efficient judicial administration and justice delivery from local governments on local level thereby institutionalizing democracy in the country. To resolve the problems found during the study, following measures and steps may be helpful: Nepal Government must publish necessary notification in Nepal Gazette so as to activate the provisions of LSGA, 1999 regarding judicial rights of the LGs. Constitutional provisions are vague regarding the judicial powers to the Local Governments lacking specific guidelines regarding the same. So, specific guidelines regarding judicial provision of the LGs should be formulated and implemented by the executive. LGs must be provided with necessary infrastructure i.e. physical infrastructure, human resource, etc. LSGA has been given power to hear appeal to district court which is inconsistent with section 7 of Judicial Administration Act, 2048. Section 7, of JAA 2048 reads "District Court has power to hear and settle at first instance all the cases within its territory, except otherwise provided by other prevailing laws." Such contradictory provision of Judicial Administration Act, 2048 should be amended to avoid contradiction. Inconsistent statues/laws/rules/regulations should be amended so as to make them consistent.
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Politically affiliated arbitrators should be disqualified for minimizing political control and intervention as well as interference on justice. LGs are lying vacant due to non-election since more than a decade. It has been already late to fulfill vacant position of the local governments with elected persons through fair election. Without representative of the peoples, there is very little chance of establishing proper judicial activities in local government.

LGs must be provided with proper financial resources so as to settle disputes the cases without burdening the people for the cost involved and incurred while settling the disputes. This will create belongingness towards the government from the side of the people.

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Bibliography Statues, Acts, Rules Interim Constitution of Nepal, 2007 Forest Act, 1993 Judicial Administration Act, 1991 Local Self Governance Act, 1999 Local Administration Act, 1971 Some Public (Crime and Punishment) Act, 1970 Village Development Committee Act, 1991 Local Self Governance Rules, 1999 Books and Reports Khanal, Rewati Raman - Out line of Legal History of Nepal, Kathmandu, 2002 Martinussen, John - Local Authorities in Nepal, LDTA, Kathmandu, 1993 NLS - Seminar Proceeding Report Effective Decentralization Strategy in Nepal, Kathmandu, 1996 Ojha, Pawan Kumar - Dictionary of Legal Maxims, Phrases and Abbreviations, Democracy, Development and Law, Kathmandu, 2001 Oppe, A. S. - Whartons Law Lexicon, Universal Law Publishing Co. Pvt. Ltd. Delhi, 1997 POLSAN - Promoting Participatory Democracy in Nepal, Kathmandu, 1998 Roy Chowdhury, S.R. and Saharay H. K. - Law of Arbitration and Conciliation, Eastern Law House, Calcutta, 1997 Shrestha, Tulsi Narayan The concepts of Local Government and

Decentralization, Ratna Pustak Bhandar, 1996 Central Bureau of Statistics - Nepal Population Census Summary Report 2011, Kathmandu Wosti, Prakash, Bed Prasad Siwakoti and Kashi Raj Dahal - Judicial Powers of Local Bodies in Nepal, NLS, Kathmandu, 1992
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Various periodicals and Journals Kanoon Nyayadoot Law Bulletin

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Table of Contents Acknowledgement Acronyms Abstract CHAPTER 1 INTRODUCTION 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Introduction of the study Statement of the Problem Objectives of the study Significance of the study Limitation of the study Methodology Review of Literature Organization of the study CHAPTER 2 CONCEPTUAL FRAMEWORK 2.1 Brief Description of the Country 2.1.1 Judiciary in the Country 6 7 7 8 9 10 11 12 1 2 3 3 3 4 4 5 i ii iii

2. 2 Decentralization and Local Self Governance A theoretical Aspect 2.2.1 2.2.2 2.3 2.4 2.5 Decentralization as a Practice in Nepal Local Governments

Justice, Judiciary and Concept of Judicial Power Necessity of Judicial Power of Local Governments and Decentralization Governance System and Judicial Power of Local Government CHAPTER 3 JUDICIAL POWER OF LOCAL GOVERNMENTS IN NEPAL

3.1 3.2 3.3

Rationale of Judicial Power of Local Governments Local Governments and their Jurisdiction Dispute Settlement Procedure under LSGA

14 15 16

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CHAPTER 4 REVIEW OF JUDICIAL POWER OF LOCAL GOVERNMENT 4.1 Problems on Judicial Power of Local Governments (a) (b) 4.2 Contradiction to Legal Provision Conflict of Jurisdiction 18 19 20 21 21 22 22

Essence of Judicial Power of Local Governments (a) (b) (c) Effective and Inexpensive Justice Easy Access to Justice Justice at the Doorstep CHAPTER 5 FINDINGS, CONCLUSION AND SUGGESTIONS

5.1 5.2 5.3

Findings Conclusion Suggestions

23 24 25 27

Bibliography

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