An expanded role for custom and the use of a jury may help to alleviate the problem of
the lack of trust in and reach of the official Nepalese legal system.
The lack of reach and trust has a number of aspects. Delay, cost, corruption, and the
foreign nature of Nepal's British-style adversary system have caused many Nepalis not to
seek justice in the courts. The present civil war has also limited access to justice. Once
the conflict is resolved, the country will be facing a major challenge: how to ensure
access to justice is readily available to all of its citizens.
Ideas for achieving that goal can be found in the roots of Nepal's justice system. Prior to
1854, Nepal had what was perhaps the last classical Hindu legal system in the world.
Under the Hindu sacred literature, the established customs of tribes, groups, and families
were given priority even over the sacred texts. The important role given to custom
helped deal with the immense diversity of Nepal's population, a diversity which still
characterizes the country today. Group decision-making was also a strong feature of
Nepal's classical justice system. This was reflected in the important role of the
panchayat, which might act as a private arbitration board outside the court system or as a
jury within it. The panchayat also investigated, mediated, and decided disputes at the
local level. According to one report, they were involved, to the general satisfaction of all
concerned, in dealing with about half the judicial business of the kingdom. However,
Nepal's first legal code, promulgated in 1854, did not provide that disputes could be
decided by a panchayat. Custom was not to be applied unless it had been enshrined in the
legal code.
An expanded role for custom could help to meet the legitimate aspirations of
marginalized ethnic groups in Nepal. Such a role would need to be carefully defined so
that recognised customs would not conflict with generally accepted human rights
principles. The use of a jury would incorporate the deeply ingrained tradition of group
decision-making in the country. It could also be used as a means of social engineering:
caste distinctions and discrimination against women might be lessened if men and women
from all levels of society participated together in the important task of resolving disputes. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/16608 |
| Date | 11 1900 |
| Creators | Kent, Gerald N. |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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