internship-submitted to law college
TRANSCRIPT
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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
1 Dr. Surya Dhungel. Concept, Implementation and Institutional Inter-relation of Decentralization,
Contemporary Legal, Political & Parliamentary Problem, Vol 1 (SCOPE, Kathmandu- 1993),p.12
Ganeschandra Adhikari. Concept of Local Self Governance, 1st (ed.) (Urban Area Development
Project by Local Effort, Kathmandu, 2049), p. 113 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, ifnot why?
4Local 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 legalscenario.
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 practicalexecution,
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 fieldof 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 and6. 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 Nepal
5
", written by Prakash Wosti andothers, 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"6discussed 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.
5Prakash Wosti, Bed Prasad Siwakoti and Kashi Raj Dahal. Judicial Right of the Local Bodies in
Nepal. (NLS Kathmandu. 1992)6
Mukti Rizal. Local Bodies and Judicial Right: A Brief Analysis, Law Bulletin. Year 6, Vol. 52, (NLS
Kathmandu 2048), pp.27-337
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 twopredominant 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.
8Central 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 GovernanceA 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
9Dharmaraj Paudel. Local Governance and Democratization, Experience of Decentralization and
Local Self Governance in Nepal: challenge and Vision. (A DDCN, 2055). P.2710 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 self-
governance 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
11The 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 indicatingrequisite 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
12Tulsi Narayan Shrestha. The Concepts of Local Government and Decentralization. 1
sted. (Ratna
Pustak Bhandar. Kathmandu. 1996) p.6313
Donald Curtis. Support for Decentralization in Nepal. UNDP, 1992 p.5914
Tulsi Naravan Shrestha. The Concepts of Local Government and Decentralization. 1st
ed. (Ratna
Pustak Bhandar, Kathmandu. 1996). p.615 Ganeshchandra Adhikari. Concept of Local Self Governance. 1st (ed.) (Urban Area Development
Project by Local Effort, Kathmandu, 2049). p.11
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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
16Rewati Rarnan Khanal. Outline of Legal Hisiory of Nepal. 1
sted. (Kathmandu. 2059), p.69
17 Na Su. Mukti Sharma vs. S.F. Tek Bahadur Raymajhi, NKP 2017 (Reprinted by Saman Publication
Pvt. Ltd 2057), p. 110
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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 ofplan 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 passresolutions to collect tax and revenue,23 formulate bylaws.24
c) Judicial function: proceed and settle various types of cases.25
20Local Self Governance Act, 1999, Section 55-57, 136-145
21Ibid. section 28 & 96
22Id. section 26(1 )(a) & 96(1 )(a)
23Id. section 26(1)(b) & 96(1)(b)
24 Id. section 265(2)25
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 theirsurroundings. 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 caseskeeps 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 allthese 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 way-
outs.
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 quadrupedsf. Cases under no. 8 and 9 of the Chapter on construction of Houses
27Badri Prasad Bhandari.Judicial Rights of the Local Bodies Under Local Self - Governance Act,
1999. Nayadoot, Year 33. Vol 4 No.134. (NBA 2003). p.12928
Local Self Governance Act, 1999, Section 33 & 101.
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g. Cases under the Chapter on Kalyan Dhan (hidden and unclaimedproperties).
h. Cases under the Chapter on Deposits expect those under No. 5 of thatChapter.
i. Cases on providing expenses for food and clothing according to status andincome 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 GovernmentCases 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 LSGAEventhough, 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 acase 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 reachin the conclusion that LSGA has accepted both mediation and arbitration as a process
for settlement of cases.
29Local Self Governance Act, 1999, Section 34 & 102
30Ibid. Section 35 & 103
31Local Self Governance Act, 1999,Section 36 & 104
32 Ibid. Section 37(1) & 105(1)33
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 judiciarybodies 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
The Interim Constitution of Nepal 2007Article, 10035Ramkrishna Timilsena. Basic Procedure and Other Related Subjects on the Course of Decision
Process of Quasi Judicial Authority. NvaydootYear 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 ProvisionConstitution 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
36Local Self Governance Act. 1999, Section 40 & 108.
37Shambhu Prasad Gyawali. Use of Judicial Right, an Unveiled Aspect of the Constitution.
Kanoon Vol 17. (Lawyers Club 2056). pp.47-4838Advocate 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 JurisdictionConflict 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 authorizedChief 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 ForestOfficer (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 madeprovision 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 orApril Movement of 2062/63, oncept of
decentralization through federalism has been in discussion in Nepal and also the
39Judicial 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.
40Badri 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 lengthyprocedures 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 sufficientnumber 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 informationof principle of law and justice, impartiality and wisdom.
Political interference on local people, and political control on justice hasraised doubt over the ability of LGs judgment.
The contradiction existing among laws has caused problems forimplementation of decentralized judiciary in the country.
Fairness and impartiality are the indispensable qualities of justice. Bycontrast, 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 tohear and resolve the disputes.
There is constant lack of infrastructure on the local bodies to impartjustice. 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 hasntpublished 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 self-
governance.
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 Gazetteso 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. physicalinfrastructure, human resource, etc.
LSGA has been given power to hear appeal to district court which isinconsistent 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 shouldbe amended to avoid contradiction.
Inconsistent statues/laws/rules/regulations should be amended so as tomake them consistent.
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Politically affiliated arbitrators should be disqualified for minimizingpolitical control and intervention as well as interference on justice.
LGs are lying vacant due to non-election since more than a decade. It hasbeen already late to fulfill vacant position of the local governments withelected 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 settledisputes 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 andDecentralization, 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 i
Acronyms ii
Abstract iii
CHAPTER 1
INTRODUCTION
1.1 Introduction of the study 1
1.2 Statement of the Problem 2
1.3 Objectives of the study 3
1.4 Significance of the study 3
1.5 Limitation of the study 3
1.6 Methodology 4
1.7 Review of Literature 4
1.8 Organization of the study 5
CHAPTER 2
CONCEPTUAL FRAMEWORK
2.1 Brief Description of the Country 6
2.1.1 Judiciary in the Country 7
2. 2 Decentralization and Local Self GovernanceA theoretical Aspect 7
2.2.1 Decentralization as a Practice in Nepal 8
2.2.2 Local Governments 9
2.3 Justice, Judiciary and Concept of Judicial Power 10
2.4 Necessity of Judicial Power of Local Governments and Decentralization 11
2.5 Governance System and Judicial Power of Local Government 12
CHAPTER 3
JUDICIAL POWER OF LOCAL GOVERNMENTS IN NEPAL
3.1 Rationale of Judicial Power of Local Governments 14
3.2 Local Governments and their Jurisdiction 15
3.3 Dispute Settlement Procedure under LSGA 16
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CHAPTER 4
REVIEW OF JUDICIAL POWER OF LOCAL GOVERNMENT
4.1 Problems on Judicial Power of Local Governments 18
(a) Contradiction to Legal Provision 19
(b) Conflict of Jurisdiction 20
4.2 Essence of Judicial Power of Local Governments 21
(a) Effective and Inexpensive Justice 21
(b) Easy Access to Justice 22
(c) Justice at the Doorstep 22
CHAPTER 5FINDINGS, CONCLUSION AND SUGGESTIONS
5.1 Findings 23
5.2 Conclusion 24
5.3 Suggestions 25
Bibliography 27