Submit your Article

Access to justice is one of the key challenges facing Nepal’s judicial system. 

Factors like a low level of awareness, lack of legal literacy and inherent social and structural systems have made justice inaccessible for a large section of the society, women and members of disadvantaged communities in particular.

For decades, the formal justice system of Nepal included the Supreme Court at the top, and appellate and district courts at the middle and lower rungs. A bureaucratic, formal and costly justice system meant that a large section of the public felt intimidated and scared to approach it, compelling them to suffer injustice in silence.

In order to overcome these impediments, the state did introduce the system of community mediation and justice administration through quasi-judicial bodies. But these bodies have neither been formally institutionalized nor has the public been sensitized about the kinds of services they are supposed to provide. Perhaps to address this gap, the Constitution of Nepal 2015 envisaged separate judicial committees under the local level to work as primary vehicles for a community-based justice-dispensation system. 

Legal provisions

Article 217 (1) of the Constitution of Nepal 2015 provides for a three-member judicial committee in each of the 753 local levels with the mandate to adjudicate, arbitrate and refer cases for mediation at the local level. Article 217 (2) stipulates election of other two members of the committee at village and municipal assemblies. The judicial committees are under deputy mayors in municipalities and vice-chairpersons in rural municipalities.

The Constitution has also provided for mandatory election of male and female as either mayor/chairperson or deputy mayor/vice-chairperson, resulting in the election of women deputy mayors and vice-chairpersons in over 90 percent of 753 local levels. Apparently, these committees are overwhelmingly led by elected representatives, who are women.

Clause 47 (1) of the Local Government Operation Act (LGOA) 2017 elaborates on functional and procedural aspects of the judicial committees, “empowering them to settle disputes related to 13 specific matters.”

Per Clause 47 (2) of LGOA, judicial committees have the right to settle disputes through mediation in 11 other matters. The disputants can directly register cases at the court under Clause 47 (2); they can also move the district court in case of dissatisfaction with the committee’s decisions.

In case of adjudication and arbitration, the committee regards the opinion of the majority as its decision. In the case of mediation, it keeps a roster of mediators and refers the parties to mediation centers at the ward level. 

Challenges aplenty

Since the promulgation of the Constitution of Nepal 2015, local level elections have taken place twice. Elected representatives have come and gone, but the judicial committees’ challenges remain as they are. Some of the problems facing these bodies include lack of institutional mechanisms, insufficient clarity on jurisdictions, lack of procedural clarity, expertise and human resources, administrative capacity and institutional capacity to implement decisions.

Nepal Law Society (NLS) and Rural Development Foundation (RDF) have been conducting different activities like organizing programs to support the functioning of judicial committees. They provided support to the Ministry of Federal Affairs and General Administration in drafting LGOA, apart from conducting a pilot study on the performance of the committees and conducting training sessions for the committees’ functionaries on due process, facilitation between committees and concerned district courts, capacity building through orientations and compiling suggestions from all local level leaders regarding necessary policy/legal reforms. 

NLS has identified a number of challenges facing these committees. They include lack of understanding on distinctive provisions in Clauses 46-53 of the Local Governance Operation Act; lack of awareness on gender, inclusion and legal education; failure on the part of judicial committees to fulfill due processes leading to overturning of their decisions by district courts and lack of mediation skills and insufficient human and physical/financial resources. 

Other challenges include the lack of coordination between judicial committees and the local level in the execution of decisions; domination of judicial committees by mayors/chairpersons; lack of awareness among target groups about the significance of these committees; lack of easy access to the committees among target groups due to lack of awareness or feeling of intimidation; lack of local civil society organizations that can facilitate the target groups’ access to justice and absence of a network connecting these committees for their collective strengthening and dearth of friendly laws.

The author is Executive Director of Nepal Law Society

This article is part 1 of a two-part series

Foreign Minister Narayan Prakash Saud held talks with US Secretary of State Antony J Blinken in Washington, DC on Monday, focusing mainly on matters of bilateral, regional and international concerns, including the Millennium Challenge Corporation (MCC) compact, bilateral cooperation in multilateral forums and the unfolding situation in the Mideast. 

The high-level talks in the American capital, which come in the wake of a series of visits by senior US officials to Nepal, bear special significance, also because opportunities for Nepal’s foreign ministers to engage in bilateral talks with the US are relatively rare.

Before Saud, his predecessor, Pradeep Kumar Gyawali, had held official meetings with the then American Secretary of State Mike Pompeo in 2018. However, Foreign Minister Gyawali’s visit courted criticism as some leaders within his own party accused him of aligning with America’s Indo-Pacific Strategy (IPS). Importantly, there has been no reciprocal visit by a US Secretary of State to Nepal since Colin Powell’s visit in 2002.

Matthew Miller, spokesperson at the Department of State, said Saud and Blinken highlighted the ‘recently launched $500m Millennium Challenge Corporation Compact that will build infrastructure, increase access to electricity and support cross-border power trade.’ The Nepali Embassy in Washington stated in a press release that Secretary of State Blinken expressed the US wish to “see Nepal as a strong and prosperous democracy”.

The two sides also exchanged views on Nepal-US cooperation in multilateral forums, and other matters of regional and global concerns, including the situation in the Mideast, per the statement. The United States and Nepal established diplomatic relations in 1948, and the US has consistently been Nepal’s largest donor country. US policy objectives in Nepal have revolved around the promotion of a peaceful, prosperous, resilient and democratic nation, observers say. 

Over the past decade, American engagement with Nepal has substantially increased, notably seen in increased financial support through USAID and MCC, technical assistance in trade, deepened cooperation in security and defense, humanitarian assistance and disaster response.  This expansion in cooperation is reflected in the growing number of US visits to Nepal, according to the experts. 

A growing rivalry between the US and China, the Russia-Ukraine conflict, the US withdrawal from Afghanistan, climate change and other global concerns have prompted the US to intensify its engagement with Nepal. To counter the growing influence of China in the Indo-Pacific region, the US introduced the IPS, first unveiled by the Trump Administration in 2018 and further developed by the Joe Biden administration in 2022.

A vital role in the Indo-Pacific

Although Nepal is not explicitly mentioned in the IPS, the Trump administration recognized Nepal's potential central role in the Indo-Pacific in 2018. As a result, Nepal is considered a high-priority country in the region for US policymakers. Nevertheless, Nepal has consistently maintained that it does not intend to become a part of the IPS, despite all bilateral cooperation and assistance between Nepal and the US operating within its broader framework.

A key US priority in Nepal is the successful completion of projects under MCC, which entered its entry into force phase in August, accompanied by a five-year deadline. Two months have already passed since the deadline began, but there is much work still to be done. US officials view the MCC compact as a significant milestone in the 75-year partnership between the two countries. Given China’s strong opposition to the compact, the US anticipates potential roadblocks and is making additional efforts to ensure its smooth implementation.

In the meeting with Foreign Minister Saud, Secretary of State Blinken underlined the importance of timely implementations of projects under MCC. After the meeting, Blinken said, “I met with Nepali Foreign Minister Narayan Prakash Saud to highlight US investment in Nepal, including a $500m compact from MCC to support economic growth.”

As China advances its debt-lending mega-project, the Belt and Road Initiative (BRI), in an attempt to attract developing countries, the US aims to showcase the benefits of MCC projects, funded by US grants and substantial financial contributions from the government of Nepal. Simultaneously, the US perceives strong anti-MCC sentiments in Nepal as reflective of growing Chinese influence in the country. For their part, Chinese analysts say they are not opposed to American projects but seek a level-playing field for all players in development cooperation.

Combating corruption is another top US priority in Nepal. The US is closely monitoring developments like investigations into corruption cases, including the Bhutanese refugee scam. US Anti-Corruption Coordinator Richara Nephew visited Nepal in August of this year, engaging with representatives of anti-corruption institutions, law enforcement and civil society.

President Joe Biden has framed current global tensions as a struggle between democracy and autocracy. Since 2021, the Biden administration has been hosting the Summit for Democracy, highlighting the ability of democracies to address the world’s most pressing challenges and deliver for their citizens. Nepal is one of the few South Asian countries invited to participate in the summit.

Under the Democracy Delivers Initiative launched in 2022, the US provides support to mobilize resources for countries undergoing democratic renewal, maximizing the likelihood that their democratic gains endure. The US recently pledged over $145m, with more than $35m in new funding through USAID for the Democracy Delivers cohort, which includes Nepal. Additionally, the US’ International Development Finance Corporation announced $110m to support new private sector-led projects.

In 2022, the government of Nepali and USAID signed a new development cooperation grant amounting to $659m spread over a five-year period. This February, USAID Chief Samantha Power announced that USAID would provide up to $58.5m to advance democratic progress in Nepal. Following transparent and peaceful elections in 2022, Nepal has an opportunity to strengthen federalism, advance the inclusion of women and marginalized communities, empower its young people and demonstrate that democracy can deliver for its citizens.#

In addition to these initiatives, the US has intensified its defense cooperation with the Nepali Army and other security agencies. 

Saud’s visit to the US should be analyzed in the context of a growing engagement between the two countries and rising geopolitical tensions. Nepal’s two close neighbors India and China will be closely watching Saud’s visit to America. There is a convergence between the US and India on the issue of countering Chinese influence in Nepal, while China is more concerned over growing American influence in Nepal.  

An important partner

Antony Blinken, US Secretary of State

We have 76 years of diplomatic relations between Nepal and the United States, and Nepal is today a very valued partner in the Indo-Pacific. We’re working together to ensure that we have a free, open, secure, prosperous region. And in so many ways, Nepal is leading, not just in the region but globally, as a very constructive actor in international organizations—of course, with so many peacekeepers, who are trying to help people move from conflict to peace around the world. And in our own bilateral relationship, we’re working to deepen it and strengthen it even more, particularly with more people-to-people as well as economic ties.

The United Nations Secretary-General (UNSG) is the world’s top diplomat. The UNSG’s job is often described as the “toughest job in the world,” a sentiment passed down from the inaugural Secretary-General to his successors. The incumbent UNSG Antonio Guterres is the ninth individual to hold this esteemed position. He formally took office on 1 Jan 2017. Currently in his second term, Secretary-General Guterres is upholding the longstanding tradition of visiting Nepal, including a visit to Lumbini—the birthplace of Gautam Buddha—enlightened son of Nepal. His predecessor Ban Ki-Moon visited Nepal in 2008 and addressed the Constituent Assembly, which was engaged with the task of drafting a constitution. The UN facilitated the peace process by providing technical and electoral support. The intergovernmental organization remains as a valuable development partner for Nepal. 

The present visit comes on the invitation of the Prime Minister of Nepal.  His visit from Oct 29 to Nov 1 signifies a continued commitment to fostering international cooperation and addressing global challenges. As per the press release issued by the Ministry of Foreign Affairs on Oct 27, the Secretary-General will address the joint session of the Federal Parliament on Oct 31. The first-hand observation of the impacts of climate change on the Himalayas and a brief conversation with the affected communities are also on his itinerary.  

Immediately after arrival on Oct 29, he had meetings with Minister for Foreign Affairs, Narayan Prakash Saud, and Prime Minister Pushpa Kamal Dahal where he discussed matters, including Nepal’s ongoing peace process, graduation to the status of a developing country from the category of Least Developed Countries, advancement toward the sustainable development goals (SDGs) and the mitigation of climate change impact. Nepal faces the impact of climate change disproportionately. 

The Prime Minister assured the UNSG of Nepal’s commitment to bringing transitional justice process to a logical conclusion through the Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons in accordance with the rulings and directives of the Supreme Court, related international conventions, and concerns and interests of the victims.  

The UNSG also had separate meetings with former Prime Minister and Nepali Congress President Sher Bahadur Deuba, and opposition leader in the House of Representatives and Chair of the CPN-UML. The meetings reportedly centered on concluding the peace process and addressing the impacts of climate change.  

The UN Security Council (UNSC) picks up UNSG. It means all five permanent members of the UNSC have to agree on the candidate. Mainly the US and Russia have a great deal of sway over the selection. Guterres assumed the office of UN Secretary-General on 1 Jan 2017. He is a former Prime Minister of Portugal and has worked as the chief of the United Nations High Commission for Refugees, one of the most essential UN bodies. As a matured and most experienced politician turned world’s top diplomat, he has a fair knowledge of the inner workings of the UN’s cumbersome bureaucracy. He is multilingual and articulate and is considered decent and able, pragmatic and principled.  

Secretary-General Guterres heads the UN at a time when the world body stands at a crossroads, facing the worst institutional crisis. The world body has been made feeble and bypassed in most of the cases. However, the UN, made up of 193 sovereign member-states, has the widest reach, heaviest weight, and global legitimacy. There is no substitute to the universality and unique legitimacy that comes from the United Nations. The UN incorporates the “collective will” of member-states.  Member-states exercise their rights of sovereign equality under the UN Charter, which also acts as the guardian of “inadmissibility of interference” in their internal affairs. 

The UN is a forum where every country presents its national policy, perspectives and positions on contemporary global issues.  It is where there is sovereign equality of nations. The UNSG draws attention to the plight of the poor, the sick and the victims of war. The UN is also a forum where 193 members are often found querulous and demanding on the organizations. Every member country is apparently determined to put national interests before the common good.  

There are institutional limitations to address all their concerns and demands. The UN and UNSG can only influence when permanent five-strong states cooperate, and allow the world body to perform. US President Harry Truman is quoted to have said, “No matter how great our strength, we must deny ourselves the license to always do as we please.” 

Great powers can make the UN work or frustrate all its efforts. If great powers see no economic value or strategic importance, they show callous indifference to the principles and purposes of the UN Charter. Rwanda is one such example. 

The UNSG, though the world’s top diplomat, is the servant of the politically powerful. Former Secretary-General Kofi Annan, delivering a series of high-profile speeches in his final days at the office, said, “America is not working better with other countries—sees it as a lament that might be seen as a sign of his own frustrations, (The Economist, 18 Dec 2006). When the UNSC did not endorse America and its allies for invasion of Iraq in 2003, hostility with the United Nations grew in Washington. Putting all shortcomings or non-performances of individual states at the doors of the UN and its Secretary-General, often referred to as a “scapegoat” (SG)—a phrase attributed to a former Secretary-General, Kofi Annan, does no justice to the office of the UN Secretary-General. The crucial failure of political will on part of the member-states should not be attributed as the fault of UNSG. 

The three pillars

The United Nations has three pillars consisting of economic development, human rights and making and keeping peace. UNSG acts often as a cajoler and fixer, not a global boss. Acting as a neutral arbiter for stopping death and destruction and preventive diplomacy is what the UN does. 

Member-states work within the United Nations to project their positions and use their ability to attract and persuade others to accept their positions, which is often called “soft power.” The United Nations, with all imposed structural imperfections, has no hard or coercive power. But it is the UN that has the universality, legitimacy and acceptability where sovereign states come together, share burdens, address common problems and seize opportunities. 

It was within the vital framework of the principles and purposes of the UN Charter that G20 found a way out to bring warring countries  on board and agree on the most contentious issue—Ukraine. This shows it is up to the member-states what they want to make of the UN—an effective organization or incompetent or a prisoner of rivalries. 

Problems sans passports

The world is simultaneously confronting challenges on all fronts in an age of “problems without passports,” like climate crises, persistent poverty and inequality, pandemic, populism, communalism, growing intolerance and transnational crimes. The world confronted coronavirus and saw havoc with even great powers struggling with serious health problems of their people. The divides growing between the poor and rich, lower and middle-income countries were the most alarming signs.  

The world is burdened with several crises ranging from the Ukraine war to Hamas-Israel war to transnational challenges. There is a development crisis. Desertification is increasing, environmental degradation is staring at us amidst a scarcity of resources. The pervasiveness of poverty is often referred to as “bottom billion.” 

Global problems require global solutions. Complex problems must be dealt comprehensively, in their full economic, social and political dimensions. As no other institutions exist in pursuit of global commons and global good, the UN is the only institution to have global legitimacy. Unilateralism has proved ineffective. Multilateralism with the UN at the center seems to be the only way forward. 

The UN Charter long ago noted that peace and security depend on the social and economic advancement of people. It is often seen that the UN has tackled challenges rhetorically, contributing to its reputation as a talking shop. The UN should rediscover the principle of pragmatism, which is hard work for a real political pragmatism.  The theme chosen for the 78th UNGA this year has been “rebuilding trust and reigniting global solidarity” to accelerate action to speed up the achievement of the 2030 Agenda for Sustainable Development Goals (SDGs). The Agenda has 17 goals ranging from combating climate change to eliminating hunger and poverty to achieving gender equality, and promoting social welfare. This set of goals was adopted in 2015 to realize them by 2030, after the MDGs (Millennium Development Goals), adopted in Sept 2000 at the UN Millennium Summit reached their deadline.  

The graduation plan

The UN website describes SDGs to be in deep peril, with more people in extreme poverty, development reversing under the combined impacts of climate disasters, conflict, economic downturns and lingering covid-19 effects. As the country plans to graduate to developing status from Least Developed Countries’ (LDCs) status by 2026, the issue of how to make the graduation sustainable and irreversible should figure in discussions with the UNSG.   

Global power is making a historic transition to Asia based on the growth of Nepal’s neighbors—China followed by India. Geopolitical tensions and rivalries are rising to their prominence in Asia and Nepal’s neighborhood. There is a clear distraction from pressing problems, as politics has become explosive and populist, diplomacy, too, stands like a minefield.  Nepal has to be extraordinarily and exceptionally careful and show its wisdom in securing national space and ensuring a decent life for its people. 

Nepal formally joined the United Nations in 1955. Over the years, Nepal has shown unwavering commitment and support to the principles and purposes of the UN Charter and unflinching faith in multilateralism.  The foreign policy of Nepal, as Prime Minister BP Koirala said while addressing the 15th UNGA-1960, “is fully inspired by the principles and purposes of the United Nations’ Charter. We regard the United Nations not only as a bulwark of our independence and security, but also as the protector of our rights and freedom.” 

Nepal’s participation at the highest level at the UNGA and contributions to peacekeeping missions under the aegis of the UN for the cause of global peace and security is a part of this tradition.  Currently, 6308 Nepali peacekeepers are deployed in 13 missions in troubled spots around the world. Nepal ranks first in sending women peacekeepers and second as troops contributing country under the aegis of the UN. 

Time for a revamped UN

The structure of the world body including its main component UNSC does not reflect the existing geopolitical, demographic and economic realities. However, the UN is essential to the world in which we live. The only alternative is to have a more effective and functioning United Nations. 

There is no room for bullying tactics and confrontational style in the 21st century. Without support from 193 member-states, UNSG can do little, and “cut the mustard,” restore excellence, integrity and pride, and make the organization more relevant and effective to the present needs of its members. The job of the UNSG has been described by the inaugural incumbent as “the most impossible task on earth.” Some SGs have been more a doer than a communicator.  

The refugee crisis

As a UN High Commissioner for Refugees, the current Secretary-General facilitated the process of the third-country resettlement of over 100,000 Bhutanese refugees in Europe and America. Bhutan had forcibly evicted these people in the 1980s and 90s.  Resettlement process in different countries was carried out in consultations and coordination with the UN and concerned countries. There are over 6000 refugees remaining in the refugee camps. Either they should return home in dignity or resettled in third countries. It would not be out of place and context to raise the issue with the visiting dignitary, who is fully familiar with the crux of the problem. 

The author is a former Nepali ambassador/PR to the UN

RSS

“Human rights are not negotiable items that companies and governments are permitted to eliminate by contract.” 

That’s a quote from Andrea Shemberg, a former legal adviser to Amnesty International UK. 

Here’s one more, from Maximilien Robespierre, “Any law which violates the indefeasible rights of man is in essence unjust and tyrannical, it is no law.” 

There is virtually no aspect of our work that does not have a human rights dimension. Whether we are talking about peace and security, development, humanitarian action, the struggle against terrorism, climate change, none of these challenges can be addressed by ignoring human rights.

We know that the French Declaration of Rights of Man and of the Citizen (1789) was the first document, which referred to social, economic and cultural rights, rights to education, work, property and social protection.

In 1941, the Atlantic Charter was declared, which made way for an International Bill of Rights (1942-45) and the Universal Declaration of Human Rights (UDHR) on 10 Dec 1948. 

Article 25.1 of UDHR states:

“Everyone has the right to a standard of living adequate for health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social service and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” 

The International Commission on  Civil and Political Rights (ICCPR), 1976  and International  Commission on Economical, Social and Cultural Rights 1976 oblige signatory nations to ensure human rights and so does UDHR. 

Nepal is also a party to international human rights conventions, covenants and protocols.

Worryingly, appointments made to the National Human Rights Commission, the constitutional rights watchdog, have failed to meet national and international standards, including those outlined in the Paris Principles. 

After conducting a review for two consecutive years, a Ganhri Subcommittee on accreditation (SCA) in October last year recommended downgrading NHRC to the “B’’ category. Notably, one of the commissioners is requesting the government to amend the relevant Act and give NHRC more authority in line with the Paris Principles to avoid this action. The rights watchdog, caught in deep sleep for long, seems to have woken up and has begun blaming the state for failing to defend its appointments. A statement from the appointees reads, “Our appointments alone are not responsible for the downgrading. The government’s failure to strongly defend the appointments before the United Nations Human Rights Committee is primarily responsible for the Ganhri action. 

A bad carpenter quarrels with his tools.

Let’s go back a little bit to understand the crisis better. 

The Constitutional Council under the then Prime Minister KP Sharma Oli had  nominated chairpersons and members at various constitutional bodies, including the NHRC, on the basis of the Constitutional Council Act revised through an ordinance on 15 Dec 2020. The then President, Bidya Devi Bhandari, subsequently appointed the chair and four commissioners at the NHRC on 3 Feb 2021 on the government’s recommendations. 

Even during the reign of King Gyanendra, NHRC was not in such a sorry state. The SCA is bound to review the commission’s present status following complaints from several human rights bodies, chiefly over the appointments of NHRC officials. 

In the reviews conducted in 2021 and 2022 also, the Ganhri commission had recommended downgrading NHRC, pointing at the unconstitutional appointment process. NHRC’s ‘inability’ to safeguard minority rights did not help either. Add to it all half-a-dozen writ petitions challenging the ordinance and the appointment process that are sub-judice in the Supreme Court as well as civil society organizations’ dissatisfaction with the working process of NHRC.

Against this backdrop, who will come to the rescue of the constitutional rights body? 

The author is a former member of NHRC