Provisions for Conflict Resolution in the LSGA

Professor Rabindra Khanal

Conflict is an inevitable and pervasive aspect of human life. It is characterized by the complexity of modern social, economic and political environment. It occurs between two individuals, groups, organizations, communities and nations and even two regions in the form of disagreement, grievances, problems and tensions. Many scholars believe that conflict is the last phase of the trouble beginning with problem and passing through dispute. Problems are usually simple and can be solved with a little effort because they do not have incompatible goals. They are solved with proper management. Disputes do have incompatible goals but are achieved through bargaining and negotiation. Disputes are usually settled through a mutually agreed formula often involving compromise between the disputing parties. When the problem reaches the stage of conflict, the situation becomes really serious. Due to the presence of a mutually incompatible goal, the resolutions of conflict virtually becomes impossible and even in the case of possibility, almost all the human skills involving thinking, feeling and behavior including communication need to be applied. Conflict lies everywhere and in every situation where human action found to be interacting. If the conflicts are not resolved at an early stage, societies will have to go through situations that are harmful to their development. Resolving conflict is, another prime concern of the present-day social, economic and political complexity. It is the human nature to let loose problems and ignore until they really pose threat to a positive development. The problems, disputes or conflicts,

whatever they may be, are not identified and resolved at the very initial stage. As a result they become mature and more complex. A normal course of conflict turns violent if no action is taken to transform or manage it through a natural course of action. In the context of the current trends of democratization, decentralization and devolution of power and authority, Nepal is witnessing all kind of conflicts at every level of governance. The existence of these conflicts and the failure of political machines to address them in time have created more gaps in the society, which ultimately has hindered the political development of the country. Democracy is threatened by these failures. Even the problems related with Maoist activities are the manifestation of these failures.

The term conflict resolution has come into frequent use in connection with the local governance. The local government institutions and the people living at this level face varieties of conflicts in their day to day affairs. The identification, classification and resolution of these conflicts are very important at this stage if political development along with other kind of development is to take place. After the restoration of multiparty democracy, the local bodies are being seen as the cradle of democracy. The quality of democracy and the growth of democratic leadership emanate from these levels. Their role in furthering democratic ideals and strengthening democratic procedures is expected to be effective for which they should be prepared to deal with all kinds of difficulties that may come in their way. Among many others, the basic and fundamental functions of these local institutions are to resolve the local conflicts at the local level. This will help the local citizens to be free from tensions of going to the courts of law and other government offices to resolve minor disputes that may come in their day to day life.

Provisions for Conflict Resolution in the LSGA

The Local Self-Government Act 1998 has specified a number of areas within its jurisdiction under the judicial rights of the local bodies. The act has empowered the local bodies to look through and decide upon the cases as follows:

a. Related with land - in relation to land, the local bodies can decide upon the boundaries of the land, demarcation of land, distribution of water for irrigation and violation of public land, public road and the outlet of the natural flow of rainwater.

b. Related with crops - local bodies can decide upon the cases related with crops destroyed by someone's cattle in the field.

c. Related with wages - cases related with wages as mentioned in (Muluki Ain)

d. Related with bankrupt - cases related with poor and bankrupt as mentioned in Muluki Ain.

e. Related with cattle - cases related with the lost and found cattle as mentioned by the Muluki Ain.

f. Related with house-rent - cases related with the nonpayment of house rent, or somebody not leaving the house or shop against the wish of the owner, etc.

g. Welfare property- cases related with welfare property as mentioned in the Muluki Ain.

h. Related with sharing of property- the cases related with the demand of wives and children for their share in property or for livelihood.

i. Related with drinking water and public property- cases related with the places of drinking water and protection of public property.

j. Related with killing of female cattle- cases related with cattle except the killing of a cow.

k. Related with pasture, fodder and fuel- cases related with pasture land for cows, buffaloes etc. and collection of fuel and fodder.

l. Related with trespassers- cases related with someone trying to enter into someone's land and house by force. There is no separate law in Nepal regarding the trespassing but local bodies can deal with such cases under this clause.

m. Besides, the local bodies can look into cases prescribed by the HMG through its regular notification in the Gazette.

The LSGA has empowered local bodies at all levels to decide upon the cases listed above but has not yet enforced it because it will be effective only when the government publishes its notification in the Gazette. The purpose of these provisions is to settle disputes in villages in order to reduce the cost and labour in course of providing justice.The local bodies have been involved in settling disputes of local people through formal and non-formal procedures throughout history. It is so because of their traditional role rather than the rights granted by any law. Now, the LSGA has provided certain judicial rights to them to resolve conflicts but they do not include every kind of conflict that can come at the local level. Local bodies can resolve only small quarrels between two parties, but serious issues like racial tension, religious and cultural conflicts and domestic conflicts involving spouse abuse are excluded. The provisions in the empower local bodies but the procedures to be followed for settling disputes are formal.

The decisions made by them are subject to the appeal at the District Court. The legal experts should properly carry on the procedures, even if the case is at the grassroots level. Otherwise cases reach the district courts, and have to be reviewed from the beginning. The people then will lose their trust in the local bodies and they will go directly to the court of law instead of approaching the local bodies.

Methods of Conflict Resolution provided by LSGA

Judicial settlement is the major and formal instrument in settling conflicts in society. Judicial settlement means a settlement brought about by a properly constituted judicial tribunal, applying rules of law for which the conflicting parties should go to the formal court of law. It is expensive as well as time consuming. It can also create more complication in the social relation of the local people. That is why judicial settlement should be the secondary method of resolving conflict. It should be used only when other non-formal, easy and simple methods fail. Beside judicial settlement, there are other methods of resolving conflicts, such as arbitration, mediation , negotiation, use of good office and under the auspicious of the higher bodies- the central government in the case of local government. All these methods are equally important and sometimes can be used simultaneously. These methods are recognized by the international law and are well adopted by the traditional communities in Nepal because they are based on natural law. Local people usually go the local way in using mediation by pancha bhaladmi as in the old days.

LSGA has made a provision of constituting a committee of arbitrators in the VDCs as well as the Municipalities.16 Each of these local bodies should have a readymade list of the arbitrators in their offices.17 While preparing the list of arbitrators, the local bodies should include women and people from economically and socially backward classes of the society as far as possible. Whenever there is a need of arbitrators to help or mediate between the two conflicting parties, they should choose the arbitrators from that list. There are three members in the arbitration committee. They are chosen one each by the conflicting party and the local body itself. In the case of disagreement, the member who has been appointed by the local body gives the final decision. If they disagree on the case or all three of them have different views, they may refer it to the VDC or Municipality and the decision of these latter bodies becomes final.

The arbitration committee should try to mediate the two conflicting parties to come to an agreement by means of negotiation as far as possible. Only when negotiation fails, the arbitrators should give their decision according to Art. 36 of the LSGA. Thus, the agreement by two conflicting parties to resolve their conflict has been given priority to the decision or verdict given by the local bodies. However, either one of the conflicting parties can appeal to the District Court within 35 days of hearing, if they do not agree to the decision given by the arbitration committee.

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