Decisions made by Judicial Committees mandated to adjudicate, arbitrate and refer cases for mediation, get revoked by courts.
Devendra Basnet: Centre for Investigative Journalism-Nepal
Headed by deputy mayor at the municipal level and deputy chairperson at the rural municipal level, as per Article 217 of the constitution, the three-member committee has the mandate to adjudicate, arbitrate and refer cases for mediation at the local level.
Duja Kumari Khatri, Ghorahi Sub Metropolitan City-10, Narayanpur lodged a complaint of domestic violence against her husband Hemraj and father-in-law Ludra Bahadur Oli in the local judiciary committee.
Accusing him of inflicting harm to her, she filed another suit against her husband on 15 November 2018 demanding expenses for all essentials for her and her children’s livelihood when the hearing on her first case was underway at the judicial committee.
The judicial committee held Hem Raj guilty and Ludra Bahadur an abettor in the case on 26 April 2019. The verdict announced an imprisonment of five months and slapped a penalty of Rs 15,000 to Hem Raj and Rs 5,000 as fine to Ludra Bahadur.
Similarly, the Committee ordered Hem Raj to provide Rs 8,500 every month to Duja Kumari to meet her basic needs. “My son who holds an assistant level job at World-link, a private company, earns hardly Rs 8,500 a month and the judicial committee’s verdict came as a shock to him. This is unfair,” complains Ludra Bahadur.
Dissatisfied with the verdict, Hem Raj and Ludra Bahadur challenged the judicial committee’s decision in the high court on August 16 2019. Before the hearing could start on August 18, Hem Raj died in a jeep accident a day before on August 17. The hearing got postponed till September 11. Later the High Court ordered the judicial committee’s decision unlawful and void.
Competition to breach the Constitution
The Local Government Operation Act, 2017 has allocated the right of settling disputes arising at the local level as the jurisprudence of the local judiciary committee. Clause 49 (2) of the Act hails that the judicial committee shall as far as possible encourage reconciliation and reconcile with the consensus of both parties. There is no provision of announcing fine or imprisonment.
“The court is the only authority to declare a person guilty and thereby give the final opinion on the case,” says the verdict of High Court that declared against Ghorahi Sub-metropolitan City.
However, the judicial committee has tried to defend its verdict citing Clause 13 of Domestic Violence Offence and Punishment Act 2009.
When asked whether the judicial committee has the right to impose fine and imprisonment, Sita Neupane, the coordinator of Judicial Committee, confessed, “We did not know that we did not have the authority to impose or announce imprisonment. We only knew that that anyone committing crime or violence against women needs to be punished.”
“As Hem Raj showered torture against his wife who was breastfeeding her 11-day infant, we felt we had to punish him,” Neupane tried to save her nose and added, “after knowing about the violence Luja was forbearing, we attempted reconciliation; when the attempt failed we gave the verdict consisting fine and imprisonment.”
Each judiciary committee at the local level consists of a legal advisor. Bhup Bahadur KC, the legal advisor of Ghorahi Submetropolitan City, stated that they had issued a notice requesting the alleged to present himself before the law, but when the ‘tormentor’ did not come, we stood staunch on the Domestic Violence (Offence and Punishment) Act, 2009.
“In this case, as the High Court has declared it, the issue comes under broader issue; however, it’s not good to knock the door for such trifle issues,” KC says.
The immaturity of the Committee does not end here. After the High Court dismissed the case citing the death of Hem Raj, Ludra Bahadur went to the Committee with a different plea.
After Hem Raj’s death in the accident, they had agreed in purchasing a land in the name of one-year old child of Hem Raj from the money the World Link Communication owed as an insurance amount. Both Ludra Bahadur and Luja Kumari were supposed to be the trustee of the land. Although the agreement was made on August 18, Duja, in the presence of the District Administration Office, withdrew Rs 500,000 as his insurance money. Ludra, fearing the misuse of money, went to knock the Committee’s door for justice.
“However, the coordinator, blaming me for filing an appeal against their decision, refused to register my petition.” Ludra Bahadur said sadly. Sita Sigdel Neupane, the legal advisor of the Committee confirmed his statement and said, “As he challenged our decision by appealing to the court, we suggested him to go to the court and sent him out from here.”
“If he does not abide by our decisions, why should we decide on the case?” Neupane said affirming Ludra’s charges.
Upset Ludra Bahadur went to District Administration Office hoping to get justice, but the District Administration Office told him that the case came under the jurisdiction of the local judiciary committee; hence, he should go back there. “I am deprived of justice, I have nowhere to go,” laments Ludra Bahadur.”
The court’s date
Gadhawa Rural Municipality’s judiciary committee had to face Tarekh (date) in court for giving recommendation letter about the land ownership transfer document. Lok Bahadur Budha of Gadhawa-5, Parsia had requested the Ward Office for the recommendation letter about the land ownership on November 15 2017 as his mother Purna Kumari was dead. One of his elder brothers had already requested to ‘hold’ the land in September the same year.
“His brother had already registered a request to hold the land and not to let anyone own it unless all brothers agreed, so we did not give recommendation letter as desired by Lok Bahadur,” said Prakash Bhandari, the Ward Chairperson. “We tried to reconcile all brothers but in vain,” added Bhandari.
Failing to obtain the recommendation from the ward, Lok Bahadur filed the case at the Rural Municipality office on December 24, 2017.
On 26 December, the judiciary committee declared Lok Bahadur the natural owner of the land as he had been taking care of his mother. Lok Bahadur went to the Land Revenue office at Lamahi but the decision of the judiciary committee was void as it had gone beyond its jurisdiction.
Clause 12 of Local Government Operation Act 2017 has the provisions related with the rights and duties of the ward committee. The provision has mentioned the recommendation of land ownership transfer as the right of the ward committee. Clause 16 of the same act has given the right of such recommendation to the ward Chairperson alone.
Land Revenue Office did not give the validity to the judiciary committee’s decision citing the same clause. “I did not know the legal provisions,” said Shanta Chaudhary, the Committee’s head and added, “We had no legal advisor, so using the conscience we decided to let the son looking after his mother bear the right of ownership transfer.”
After this complication, Lok Bahadur went to the High Court on January 29, 2018, complaining against the ward office, the Rural Municipality and Land Revenue Office. The Court’s decision on June 14, 2018 issued a decree to the ward office asking it to recommend it to the concerned office as per the law and if that is not possible cite the reason and inform the court about it. The ward office summoned all brothers of Lok Bahadur and recommended to the land revenue office to transfer the ownership in the name of Lok Bahadur.
Diverse disputes
When Rup Narayan Chaudhary, an inhabitant of Shudhdhodan Rural Municipality 2, Rupandehi tried to restructure the steep field into arable plain land, two water channels used to irrigate the fields around were merged into the land. Nityananda Sharma and others protested when the water channels formerly used to irrigate nearly 10 bighas were destroyed.
In the village discussion, Rup Narayan agreed to rebuild the water channels. Alleging Rup Narayan for not sticking to his words, Nityananda filed a case at the rural judicial committee. The judicial committee headed by Shanta Devi Gyawali, the Vice Chairperson of Shuddhodhan Rural Municipality, gave a verdict in favor of Rup Narayan citing there was no trace of the water channels in the official map of the plot.
Nityananda challenged the committee’s decision in the district court. The court got both of them called to the court, where both parties agreed to sign a different document. The agreement held that although the local judiciary committee concluded there was no channel, while in court, both parties agreed about its existence, and Rup Narayan agreed to reconstruct the channel.
Ganga Prasad Adhikari, the information officer at the district court verified the news.
Here is another interesting story. Ramjit Lod, Shudhdhodan-2, Rupandehi had a dispute with his uncle Aal Lod about the ownership of the land not registered in anyone’s land but used by him.
Akal filed a case in the judicial committee demanding his share in the land; the committee demanded them to provide the receipt of the amount they paid to the land revenue office in which Ramjit submitted the proof. The Committee gave the verdict in his favor.
Atal knocked the district court for justice and the court gave verdict in Atal’s favor. “We had decided based on the land-revenue’s receipt as evidence, but the court has given a different verdict.” Gyawali expressed her surprise at the decision given by the court.
“The committee had gone against its jurisprudence in this decision as it is not just to grant usufruct of the public land to an individual.” says Nirmal Gautam, an advocate and adds, “The court had to safeguard the public land so gave the apt decision.”
The Act for the Operation of Local Government, 2017 does not grant the local judicial committee the authority to give verdict on the issues related with public land or public property. The judicial committee can work only in the cases where the land of an individual is intruded or encroached by another person.
There is similar story in Gorahi-8, Masina. Ganesh Gharti and Dilsari Gharti experienced a rift in their family 10 years after their marriage. The trouble started with Ganesh’s second marriage on February 27, 2019.
Dilsari filed a case at the judiciary committee demanding the provision of providing the money required for her livelihood. The Committee came up with the verdict that Ganesh should pay Rs 10,000 a month to Dilsari. Ganesh appealed against it in the district court. The case filed on August 6, 2019 is still in district court Dang.
“I have filed the petition asking for the cost required to look after two children,” Dilsari complains, “but my husband refused to abide by the Committees decision.” Ganesh, on the other hand, expresses his inability to pay citing his lack of income at present.
“While serving in Peace Mission in Sudan, I had saved Rs 1.14 million out of which I gave my wife Rs 570 thousand and gave another Rs 100 thousand to the children; how can I pay Rs 10 thousand a month now?” He stated his inability to abide by the Committee verdict.
Instead of considering the source of income of the alleged, the local judiciary committees make decisions haphazardly, which rather than solving the problem add complexities to the decisions made,” complains Narayan Dangi, an advocate complains and further adds, “the decision should be made more rationally considering the equitable division of the total income, the alleged has the right to life and s/he should not be deprived of it as well.”
Political culture
Senior Advocate Dilli Raj Dhital confesses that even the judges may get influenced by their kith and kin; hence, most of them prefer not getting posted in their home district. The principle of natural justice forbids the judges to handle the issues involved with themselves or their kith and kin.
“But, unfortunately, most of the members of the local judiciary committees turn out to be the kith and kin or cadres of their party which, in one way or another, is likely to influence their decision,” Dhital adds.
Bhup Bahadur KC, the legal advisor of Ghorahi Sub Metropolitan City tells that in most of the decisions made by the local judiciary committee practicality and social implications are given priority over the spirit of justice. “Locally elected deputy mayors/vice-chairpersons give think about the impacts on the public esp. voters, which blurs their judgment capacity leading to make it mechanical or ‘unjust’,” concludes legal advisor KC.
KC further opines that practical aspects dominate the legal side while dealing with such cases at the Judicial Committees. “People-elected representatives will emphasize on the practical side rather than legal making the process more complicated,” he said.
The decisions made based on practical behavorial aspects will end up in controversies. A total of six cases have been lodged at the district court challenging the decisions of the Judicial Committee among the five districts of Rupandehi in Province 5. Among them, while two cases decided by the Judicial Committee have been repealed, while mothers are under consideration.
Likewise, two cases settled by Judicial Committee are under consideration at the Gulmi District Court. Similarly, two cases each from Palpa, Dang and Arghakhanchhi against the Judicial Committee’s decisions are under consideration in the respective district courts while one is under consideration in Nawalpur District Court.
However, no cases challenging the decision of Judicial Committees have been moved to the district courts in Kapilvastu, Pyuthan, Bardiya, Banke, Rukum (West) and Rolpa.
