UBC Theses and Dissertations
Ideas for civil justice reform from the classical Nepalese legal system Kent, Gerald N.
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.
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