Fine balance

April 19, 2018 02:00 AM Republica


Judicial powers of local bodies 

The constitution of Nepal has granted sweeping powers to local governments—ranging from authority to collect local tax, service fee, tourism fee, advertisement tax, business tax, land tax/revenue, to providing basic health and education services to distribution of land and housing owner certificates to even settling local disputes. Article 226 of the constitution states that local assemblies can formulate necessary laws regarding the powers granted to them and the procedure of drafting laws shall be as provided for in the Provincial law. This provision was made in good faith and the basic idea was to end the hassles the people at the local level face while seeking justice. Facilitating delivery of justice to people without them having to knock the doors of higher courts even for a minor dispute is at the core of this provision. In the recent times, however, reports of deputy chiefs of local bodies arbitrarily deciding judicial matters have stated to come to the fore.

The case in point is the case of Gadhawa Rural Municipality in Dang district. Sahajram Ahir, the rural municipality chief, is facing troubles when a case was filed against him at the higher court. He has appeared at the Province 5 High Court three times already after someone challenged a decision of the local unit’s judicial committee. It all happened after a local man filed an application with rural municipality judicial committee as the ward chief declined to write a recommendation letter for land ownership transfer from his mother to himself. Shanti Chaudhary, the deputy chief and ex-officio judicial committee head, made a recommendation to the land revenue office to meet the applicant’s demand. But the land revenue office turned down the recommendation, stating that it was against legal procedures. The case is now sub-judice in High Court. Ahir has accused Deputy Chief Chaudhary of taking decision without studying the legal provisions. 

What happened in Dang could happen in other districts as well for many members of local units are not aware about the judicial powers they can exercise. Yet they have to take certain decisions under pressure from the locals. It would be unfair to blame local leaders and the courts in such cases. Local people rely on local leaders for almost everything and these leaders will have to take decisions to address their concerns. The best way to prevent such problems from occurring again would be to ensure that there is a legal advisor in each municipality and rural municipality and they report to the office daily. An orientation to all heads of local units regarding their jurisdiction might help. If we cannot clearly demarcate what the local chiefs and other representatives can do and cannot do on judicial matters, there will be a danger of local representatives interpreting constitutional provisions in the way they see fit. It would be wise for law minister Sher Bahadur Tamang, who has been rightly advocating for judicial reforms, to pay attention to this issue. We need to ensure that the judicial decisions of deputy chiefs of local units do not contravene with the existing laws and established legal norms. A fine and delicate balance is necessary.

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