Mediation can help ease court case burden

 

Mediation can help ease court case burden

Jivesh Jha

2023/01/026 mins read

Cases of contempt of court and public interest litigations cannot be resolved through mediation

Arbitration and mediation as a legal means of dispute resolution was in practice in Nepal much before the country welcomed democracy and a codified judicial system. During the Panchayat era, for example, the Panchayat was an informal tribunal of five gentlemen chosen from among the electorate of a village to settle disputes between local people and deliver justice. However, it was subordinate to the court of law. In the Licchavi period, the Panchali, also called Pancha Sabha, had the power to issue judgments on local disputes. The concept of arbitration in its modern sense was first found in government contracts. Currently, we have a plethora of laws promoting amicable settlement of disputes.

Cases of civil nature can be mediated at any stage even if they have entered the court of law. Mediation can happen before evidence collection, after evidence collection or even during the implementation of judgements. If the Bench has reasons to believe that the dispute can be resolved through mediation, the judge can pass an order, directing the parties to sit for mediation before the mediation center of the concerned District Court or the High Court.

Court procedure

The Mediation Act, 2068 BS (2011) and its rules framed in 2070 BS (2013) provide for the procedure of mediation to settle a dispute in a speedy and simple manner. Section 3 of this Act provisions that if parties intend to settle a case pending in the court through mediation, the adjudicating authority may pass an order to refer it to a mediation center for reaching a compromise.

After passing the order, the court officials engaged in providing dates of appearances to the parties would request the parties to appear before the mediation center on a specified date. Then, the parties themselves, not their legal representatives, would (in person) have to appear before the center on a specified date to participate in a discussion for reaching a negotiated settlement.

Before entering the mediation process, the parties must choose a mediator from a roster of mediators maintained at the District Court. After the selection of a mediator, the mediation process formally begins. Discussions can happen in phases—up to three phases. In case of failure on the part of the mediator to facilitate a unanimous decision despite rounds of talks between the parties, the center must furnish a report announcing the termination of the mediation process. Afterwards, the court itself should hear the case under normal proceedings.

The District Court Regulations, 2075 empowers the District Court Registrar to maintain a roster of mediators. Any individual from the legal fraternity, teaching, social service or other sector may be enlisted as a mediator, provided that the person has received training on mediation and has not been convicted under offenses involving moral turpitude. Rule 52 of the regulations has given the judges the authority to initiate a case for mediation by passing an order to that effect.

In order to resolve disputes through mediation, judges may give the parties concerned up to three months of cooling period for reaching an amicable settlement. Rule 53 of the regulations prescribes that the Registrar of the District Court should facilitate the selection of the mediator on the basis of consensus among the parties, whereas Rule 57 prescribes procedures for mediation. If a party or parties fail to appear before the mediation center on a stipulated date, and the mediation process cannot proceed as a result, officials of the center should furnish a report to the court, stating that the mediation could not proceed.

However, if the parties reach an amicable settlement, the mediator should prepare a compromise document by duly stating the details of adjustment. Later, the compromise document is presented before the bench and the presiding judge approves the document through consent of the disputants in writing along with their signatures. This document is also a form of court verdict, which is duly archived in court case file. Both High Court and Supreme Court Regulations recognise mediation as an agreeable means for dispute resolution and the arrangements are at par with District Court Regulations.

Mediation under major laws  

The National Civil Code, 2017, a general substantive law in Nepal, has provisions for mediation in civil matters. Take divorce, for example. Section 97 of the Code, 2017 provides that if a husband or wife has filed a petition for divorce in district court, the court must pass an order, directing the parties to sit for mediation. If the court fails to make conciliation between husband and wife through counseling, it must issue a divorce order within a year of the petition. There can be a compromise deed for divorce, of course.

Under Section 193, the Civil Procedure Code stipulates that if a case is sub-judice and the parties wish to reach a compromise at any stage, they may make a joint petition, mentioning the bases for the resolution of the case. Section 194 clarifies that disputes may be settled through mediation. However, there are cases that cannot be mediated. Per Section 195, there can be no mediation in cases that have the government of Nepal as a plaintiff. It states that cases related to public, government or community property shall not be settled through compromise or mediation. However, for protecting the property of the government, mediation can be undertaken.

Cases like dishonor of cheque, forgery, criminal trespass and looting mentioned under Schedule 4 of National Criminal Procedure Code, 2017 can be mediated. In addition to this, cases of cheating (which is a matter of Schedule-1 of the National Criminal Procedure Code) instituted by an individual can be mediated. But cases related to looting or misappropriation of government property cannot be mediated. In cases concerning misappropriation of state properties, the government should initiate legal action. Cases of contempt of court and public interest litigations cannot be resolved through mediation.

Mediation saves money    

Most importantly, the laws in Nepal provide financial benefits to the litigants if they manage to settle disputes on their own. If the parties reach a compromise before a court of law passes orders for evidence collection, then the disputants can get away by bearing only 25 percent of court fees. But if compromise is reached after evidence collection, the parties have to foot 50 percent of the fees. So, dispute settlement through compromise is a better option financially as well.

Gray areas

Mediators from law, social service or teaching background can help settle disputes. Still, the law is silent on the expertise of mediators, allowing the latter to mediate in civil as well as criminal matters without taking their areas of expertise and interest into consideration. There is a practice of maintaining a single roster of mediators instead of keeping separate rosters of mediators for civil, matrimonial matters, or criminal cases. Mediation will be more effective if mediators choose specific areas of specialization and limit themselves to those areas.

In the state’s interest

Yet, Nepal’s law appears to be progressive for a number of reasons. Firstly, the laws intend to promote amicable settlements through compromise. Second, it gives a strong and clear message that dispute resolution through compromise is better than the disposal of cases through court proceedings. Moreover, the deed of compromise is cost-effective, speedy and agreement ad idem. Also, alternate dispute resolution mechanism is in the interest of the state as it helps to end litigations (Interest rei publicae ui sit finis litium). It’s high time to promote mediation, instead of recourse to court cases. The governments—federal, provincial and local bodies—need to invest in promoting mediation mechanisms. Such type of intervention is more needed in Madhesh as courts there are flooded with litigations.

The author is a Judicial Officer at Dhanusha District Court, jhajivesh@gmail.com

Published in: The Annapurna Express, a national daily 

https://theannapurnaexpress.com/news/mediation-can-help-ease-court-case-burden-36441

Implement the Charter in letter and spirit for progress, prosperity

 

Implement the Charter in letter and spirit for progress, prosperity

Jivesh Jha

2023/01/176 mins read

Thirty-three percent parliamentary seats for women and recognition of rights of sexual minorities are among the important features of this constitution

It is aptly said, ubi societas ibi jus, i.e., where there is society, there is law. The question as to who uses the machinery of law and for what reasons, continues to be debated upon. Still, the end of law is to secure human justice, rather than ideal justice. From one perspective, the Constitution of Nepal, loaded with democratic principles that have potential to help the country thrive on the path of sovereign democracy, prosperity and tranquility, may be taken as an abstract body of rights and duties. From another perspective, it’s a document of social process, balancing conflicting interests. After all, concepts like federal democracy, independent judiciary, non-discrimination in private and public life, civil supremacy, and judicial review are basic tenets of our constitution.

Progressive features 

Immanuel Kant says laws are a sum total of conditions under which the personal wishes of one man can be combined with the personal wishes of another man in accordance with the general law of freedom.  Duguit, a jurist of Sociological School of Jurisprudence, argues that law can exist when people live together.

The drafters of the constitution have ensured that everyone receives an equal share in our democracy without any distinctions and this conception is in recognition of Aristotle’s distributive justice.

Under the new constitution, Nepal’s federal structure is merited with a development that divided the country into seven provinces, with clear lists of legislative powers for the central, provincial and local governments. It sets aside 33 percent of parliamentary seats for women, which is a major breakthrough.

The Constitution of Nepal became the first country in Asia to explicitly recognize the rights of Lesbian, Gay, Bisexual and Transgender (LGBT). The provision of right to equality clearly states that no discrimination shall be made along the lines of sex, or sexual orientation as well. Under the scheme of the new constitution, victims of environmental pollution have a fundamental right to receive compensation from the polluter. Also, it has been provisioned that citizens with disability and economically poor conditions shall have the right to free higher education. These schemes are incorporated to promote equity and equality both, for garnering constitutionalism.

Yet, notably, the constitution was passed amidst intense polarization in the Nepali society. The Madheshi leaders protesting against the constitution had enjoyed vital governmental positions. This shows their dishonesty and power greed.

Roscoe Pound, who propounded the theory of social engineering, believed that law must be stable, yet it cannot stand still.

In Keshvanand Bharati v the State of Kerala (1973), the Supreme Court of India held that the word ‘amend’ implied that “while any piecemeal change may be made, the old constitution cannot be totally destroyed or so radically changed as to lose its identity; the basic features cannot be amended.” The court further held that the original constitution can be amended, subject to basic features, but cannot be repealed.

In fact, no rule can provide for every possible situation. Amendments, not repealing of laws, could be an answer to probable issues. From fundamental rights to federal principles, these provisions clarify that Nepal’s constitution is one of the progressive documents. The charter aims to promote equality, fraternity, liberty and equity. This message needs to be communicated across the country.

Communicating with the Charter

Nelson Mandela has said, “If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.”

It’s high time that the government distributed free copies of the constitution in different regional and local languages. Such an attempt would be a milestone in the healthy development of mother tongues. For instance, the government could translate the constitution in Maithili and Bhojpuri languages for the Madhesh province. If the constitution is communicated in regional languages, it would help the people understand the constitutional provisions in the language they understand.

It’s worth remembering that the Madheshi activists, who had protested against the constitution and later bagged vital government positions under the same constitutional mandates, had “interpreted” the constitutional provisions in Maithili and Bhojpuri languages to seek solidarity of the people in their protest against the statute.

Fundamental duty of citizens

Our constitution under Article 48 lays down fundamental duties on every citizen to abide by the constitution and the prevailing laws of the land. Under this mandate, the government as well as private persons have to compose their functions in accordance with the procedure established by the constitution. This concept of fundamental duty is not a noble one.

The fundamental duties were inserted in the Indian constitution through 42nd amendment in 1976, upon the recommendation of the Swarna Singh Committee. Article 51A of the Indian charter embodies 11 duties, including the duty to abide by the constitution and to protect as well as improve the natural environment. The 11th duty—duty of parents to educate their children—was inserted through 86th amendment of 2002.

The Constitution of China also bears testimony of the fundamental duties in various Articles under the chapter of Fundamental Rights and Duties’, including, the duty of the citizens of the People’s Republic of China to work (Art 42); rights and duty to receive education (Art 46); duty to safeguard national unity (Art 52); and duty to pay tax (Art 56).

Although the Universal Declaration of Human Rights (UDHR) concentrates on rights of every person by virtue of being human being, Article 29 says that the corollary of the rights is duties. The provision (i.e., Art 29) talks about the duty towards the community.

Implementation matters

Nepal’s constitution is a bag of progressive provisions. However, the problem lies in implementation of the provisions. HLA Hart, a jurist of the analytical school of jurisprudence, says: enactment of law is one thing, while implementation is the other.

Jeremy Bentham believed that the role of law should be to increase happiness and decrease pain, pointing: Law should ensure maximum happiness for the maximum number. This cannot happen unless the constitution is implemented in its letter and spirit.

For instance, the theory of polluter pays principle (PPP), recognized under Article 30 of the constitution, would remain on paper unless the state succeeds to guarantee a breath of fresh air to all and inflict a penalty against the polluters. Also, the concept of equity and equality would remain limited to black letters of law unless the mechanisms of positive and protections discriminations are duly implemented.

Everything is within the constitution and that too in the codified form. The only thing left is to implement it.

We, the people of Nepal, deserve to have employment, proper healthcare at affordable cost, quality education, and quality foodstuffs as a matter of right, because our constitution guarantees that. Mere enactment of cosmetic laws would not give a desired result unless they are implemented.

Leaders should live with promises

The Pandora of promises should be cherished by the newly-formed government. The political parties had shown ambitious plans and policies for the people. Interestingly, their lofty plans were in recognition of the constitution. It’s high time for the government to implement the constitution in its letter and spirit, for the Himalayan Republic deserves development, peace and prosperity. No country could ever grow with a tendency of sidelining the constitutional mandates. After all, our constitution is a living document promoting social transformation. Now, it’s time to live with it.

(Published in The Annapurna Express, a national daily newspaper from Kathmandu) 

https://theannapurnaexpress.com/news/implement-the-charter-in-letter-and-spirit-for-progress-prosperity-37104

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