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Improving Access to Justice Through Embracing a Legal Pluralistic Approach: a Case Study of Nepal

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Improving Access to Justice Through Embracing a Legal Pluralistic Approach: a Case Study of Nepal University of Wollongong Research Online University of Wollongong Thesis Collection 2017+ University of Wollongong Thesis Collections 2018 Improving access to justice through embracing a legal pluralistic approach: a case study of Nepal Rajendra Ghimire University of Wollongong Follow this and additional works at: https://ro.uow.edu.au/theses1 University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong. Recommended Citation Ghimire, Rajendra, Improving access to justice through embracing a legal pluralistic approach: a case study of Nepal, Doctor of Philosophy thesis, School of Law, University of Wollongong, 2018. https://ro.uow.edu.au/theses1/467 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] IMPROVING ACCESS TO JUSTICE THROUGH EMBRACING A LEGAL PLURALISTIC APPROACH: A CASE STUDY OF NEPAL RAJENDRA GHIMIRE Bachelor of Laws (Tribhuvan University), Master of Arts (Political Science) (Tribhuvan University), Master of Comparative Law (University of Delhi) Master of Arts in Development Studies (Human Rights, Development and Social Justice) (Institute of Social Studies, Graduate School of Development Studies, The Hague) This thesis is submitted in fulfilment of the requirements for the conferral of the Degree of Doctor of Philosophy SCHOOL OF LAW FACULTY OF LAW, HUMANITIES AND THE ARTS THE UNIVERSITY OF WOLLONGONG June 2018 ABSTRACT Nepali people access justice either through the formal justice system (FJS) or traditional justice systems (TJS). TJS in Nepal exist alongside the FJS and serve the justice needs of people living in rural areas, Indigenous peoples, the poor, and marginalised groups of the population, such as women, Dalits and minority group members. This PhD thesis analyses the structure and operation of selected TJS, explores the extent to which TJS in Nepal accord with international principles of human rights, describe the existing relationship between TJS and the FJS, and explores the potential for establishing a relationship between the two systems to improve access to justice in general and especially for TJS users. The research used semi-structured interviews of TJS and the FJS stakeholders to assess the extent to which three Nepali TJS (Shir Uthaune, Badghar and Mukhiya) are able to meet the need for access to justice of the people who use them in three different districts of Nepal. Shir Uthaune, Badghar, and Mukhiya TJS are mainly utilised by members of three different Indigenous groups (the Rai, Tharu and Thakali respectively) in the three districts studied (namely, Dhankuta, Bardiya and Mustang). Field work was undertaken in Nepal between July and December 2015 to collect primary data. The data was analysed using the following theoretical frameworks: legal pluralism, a human rights-based theoretical approach, critical legal theories, and decolonisation methodologies. The research found that although the three selected TJS operate in different locations and among different Indigenous groups, they exhibited many similarities. For example, elderly males play a dominant role while women, Dalits and minority groups have either no role or a very limited role in the operation of that TJS. Some more minor differences were also documented, for example, regarding length of appointment of dispute settlers. The research unveiled several reasons why people utilise the selected TJS, including: TJS are familiar, more accessible and readily available; the TJS service is either free of cost or cheaper and faster compared to those of the FJS; and TJS services are, in some areas, the only the viable option for rural people. Shortcomings were also noted, including: the dispute settlers’ lack of awareness of international principles of human rights and of the need to have knowledge of such principles, or of constitutional and legal provisions. In addition, in TJS dispute resolution processes, the rights of marginalised groups (such as women, Dalits, the poor and minority groups) either are not protected effectively or have been violated. This research revealed that there is a lack of a systematic and coherent relationship between these two justice systems. A large majority of the interview participants thought that linking TJS and the FJS would contribute to improving the situation of access to justice in general and for marginalised groups in particular. The majority of the interviewees suggested linking TJS with the local level bodies and a few suggested linking TJS with the lower courts, such as the District Courts. Finally, many suggestions for reform of the TJS arose. Overall, those desiring reform did not want to compromise the core values of the TJS dispute resolution process. The major recommendations for reform are: ensuring TJS protect the rights of women, Dalits and other minority groups; making TJS structure and operation inclusive of ii marginalised groups; the state recognising and strengthening TJS processes so that legal pluralism is embraced and access to justice is improved; and changing policy based on the intersectionality approach so that the rights of women (especially those from Dalit, Indigenous groups), Dalits, minority groups and the poor so that that the experience of these groups can be addressed in policy making. Almost all the Indigenous groups in Nepal have their own dispute resolution process; therefore, it is recommended that serious effort be put into comprehensive research to identify, document and reform these systems so that access to justice in Nepal is improved. iii STATEMENT OF ORIGINAL AUTHORSHIP I, Rajendra Ghimire, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the School of Law, Faculty of Law, Humanities and the Arts, the University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Rajendra Ghimire 25 June 2018 iv ACKNOWLEDGEMENTS My time at University of Wollongong (UOW) has been a privileged period in my life and one that I have thoroughly enjoyed. I am indebted to many individuals for their support during my study, and without whom my PhD research would not have been completed. Firstly, I sincerely acknowledge the continuous inspiration, support and dedication of my supervisors, Professor Nan Seuffert and Professor Elena Marchetti. I feel extremely fortunate that I experienced an excellent supervisory arrangement during my study at the UOW. I wish to express my whole-hearted appreciation of my supervisors for their valuable guidance, constructive criticism and for always encouraging me to do better in my study. I wish to thank all the staff members of the School of Law in the Faculty of Law, Humanities and the Arts and the Library of the University of Wollongong. My sincere thanks go to my colleagues in the School of Law: Dr Kiratipong Naewmalee, Qinquing Xu, Sarah Wright, Kate Tubridy, Fabienne Else, Ryan Kernaghan, Dr Brett Heino and Stephanie Apsari Putri for their continuous support and friendship during my study. Similarly, I acknowledge the continuous inspiration and support for my further studies by Professor Pravakar Adhikari of Nepal Law Campus, Tribhuwan University, Nepal. I would also like to thank my friends Dr Bishnu Paudel, Dr Pankaj Baral, Dr Hemang Sharma, Dr Rohini Devkota and Prasanna Adhikari for their constant support. Likewise, I wish to acknowledge the generous support of my colleagues at the Forum for the Protection of People’s Rights, Nepal (PPR Nepal): Anupama Subba, Satish Sharma, Daya Dahal and Laxman Lamichhane. Similarly, I acknowledge the encouragement of my sisters Soochana and Sameeksha, as well as of Prakash Adhikari, Bimal Aryal, Prasun Adhikari and Sajal Aryal, who assisted me in various ways during my study. My sincere appreciation goes to Elaine Newby for her excellent copy-editing service that rendered this thesis more readable. v Although I am not in the position to list the names of interview participants as their anonymity must be maintained, I wish to formally acknowledge that it was their participation that immensely benefitted this thesis. Without their willingness to contribute there would indeed be no thesis. To them I will be forever indebted. I therefore sincerely acknowledge the contribution of the many
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