SESSION IV: Putting Theory into Practice: Programming with Respect to Legal Pluralism
Panel 3: Seeking Coherence in the Overall Justice System: Linking State and Customary Mechanisms and Creating Hybrid Institutions
Typologies, Risks and Benefits of Interaction
Between State and Non-State Justice Systems
By Matt Stephens
[The state] is corrupt…distinct and distant from the mass of people, who look, absent a viable alternative, to old ways as a means of sustenance. Yet the old ways are not what they were, debilitated by labour migration, partial industrialization, urbanization and more generally by capitalism.
H. Patrick Glenn, Legal Traditions of the World
To improve the quality of dispute resolution, justice must be maintained in individuals’ daily activities, and dispute resolution mechanisms situated within a community and economic context. Reform should focus on everyday justice, not simply the mechanics of legal institutions which people may not understand or be able to afford.
Commonwealth of Australia, Strategic Framework for Access to Justice, September 2009
Introduction
The first quotation above encapsulates the dilemma at the heart of this seminar. In most, if not all, countries in the world, court-based adjudication of legal disputes is considered an expensive and unwanted last resort. As a direct consequence, so-called alternative dispute resolution mechanisms are – as a forest of surveys and research will attest – more commonly used and invariably more popular. And yet at the same time, many of these systems suffer equally from systemic inequities that reaffirm existing power relations to the detriment of the socially excluded.
The phenomenon of the distant state and/or the debilitated community institution is more common in the developing world, and exacerbated further in fragile and conflict-affected states.
So, assuming we buy the statement that effective justice systems and means of dispute resolution are crucial to development, equity and poverty reduction, what should be done in such a situation?
Until recently, donor efforts have focused almost exclusively on building capable institutions of the state. Much has been written on the challenges this presents. Success has proven elusive.43
And yet, partly as a result of the growing understanding of the need to ground justice in cultural realities and perhaps equally due to the difficulties faced by the state-centric approach, increasing interest has been paid in recent years both by governments and international development agencies to customary or non-state justice systems and the role they can play in a comprehensive approach to delivering justice.
The first point I wish to make is that unquestionably this is a welcome shift in emphasis. After years of mostly ignoring non-state justice systems in favour of building western-style formal justice systems the increasing acknowledgement is an overdue recognition of the reality of legal pluralism.
The next quotation above from the Australian government’s recently released access to justice strategic framework captures the second point I’d like to make. Engagement with justice systems outside the state is not merely an interim strategy for developing countries until such time as customary systems can be “modernized” and fully integrated into the state or until the formal legal system somehow miraculously expands to adequately meet all the dispute resolution needs of a society. Understanding and working with non-adversarial dispute resolution systems outside the courts is a permanent and necessary element of a functioning justice system, regardless of level of development. The evolution of justice in the developed world is unequivocally in the direction of compulsory mediation, restorative and diversionary justice, alternative sentencing and community-led processes.
That said, strategies to engage non-state justice systems often present particular challenges to the state. Attempts to do so in the developing world often draw criticism from an unlikely coalition of the unlike minded. On one side, some human rights activists argue that customary justice systems are repugnant to human rights and should not be supported or acknowledged in any way. On the other hand, many indigenous peoples’ rights activists argue against any form of intrusion of often weak and corrupt states into the community realm.
Against this background of complexity, many post-colonial states have attempted to abolish customary systems. Most such efforts have failed. Customary legal systems and processes have proven durable. Grounded in local practices, speedy, inexpensive and simple in process, non-state justice systems carry many natural advantages.
But as we know, for all the benefits, many violate not only international human rights norms, but also national constitutional and normative frameworks.
So, while there is a need to acknowledge and respect the reality of legal pluralism in order to forge a functioning and culturally relevant justice system, the potential for a clash of norms and values represents a significant policy and practical challenge, particularly for fragile and conflict-affected states.
Given the complexities and challenges, therefore, the recent trend towards recognition of and engagement with non-state justice systems is encouraging but also high-risk, particularly given what we know about how international development agencies tend to operate.
In the rush to become more culturally aware, the development industry imperative to transplant “best practices” must be avoided.
In this brief paper, drawing on existing literature I will lay out a typology of potential engagement with non-state justice systems. Drawing on case studies from the region I work in, including Indonesia, Timor Leste, the Philippines and Bangladesh I will also provide some examples of potential action to bring about a “middle ground” between the authority, relative neutrality and accountability of the state with the social legitimacy and accessibility of customary justice systems.
In doing so I examine both some of the potential benefits and risks inherent in attempting to link or integrate state and non-state justice and superficially begin an exposition of the conditions in which such a process of “forging the middle ground” may or may not be appropriate.44
A Typology of Recognition
Policies of engagement with non-state justice usually have one or more of the following aims:
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expanding state control of the justice system
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attempt to enhance the cultural relevance of the formal system by aligning it with customary systems
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attempt to ‘improve’ the quality of informal justice through state oversight and the insertion of legal or constitutional human rights standards
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attempt to subjugate informal processes in a structural hierarchy below the state
Drawing mostly from a 2005 article by Connolly, there are four general approaches for engaging with non-state justice systems, which reflect the different objectives stated above.45
Abolition is when the state insists on legal uniformity and abolishes non-state justice systems. This approach is often justified with reference to the tendency of non-state justice to contravene human rights.
At the other extreme, full incorporation involves the state fully integrating non-state justice with a dedicated and defined role vis a vis the formal system.
Non-incorporation grants full reign to local communities to apply and follow their local values, norms and customs. In this approach, informal and formal justice co-exist but operate independently, with strict jurisdictional boundaries drawn between the two. This approach is often utilized to accommodate traditional customary law from indigenous communities.
Finally, the partial incorporation approach attempts to blend the advantages and disadvantages of both formal state and informal non-state justice. Informal and formal justice systems operate relatively independently, but with informal justice receiving recognition, some resources and oversight from the state. This final model is a compromise between full incorporation and non-incorporation.
As mentioned above, many post-colonial independent states pursued abolition by actively seeking to abolish customary systems or, alternatively, failing to back up Constitutional rhetoric of recognition of customary norms and legal systems. Pursued in the name of legal unity, certainty and “modernity”, these approaches usually failed. Non-state justice systems have proven remarkably resilient.
Full incorporation was a trend pursued by a number of countries through the 1970s. This often takes the form of hybrid institutions that carve out a defined jurisdiction for village-based dispute resolution processes, which are in turn acknowledged by state courts.
The recent trend has been more towards non-incorporation. In Latin America, for instance, in the 1990s alone, seven countries (Chile, Colombia, Ecuador, Guatemala, Paraguay, Peru and Venezuela) altered their Constitution to respect the rights of indigenous peoples to apply their own dispute resolution systems, provided these do not violate the Constitution.46
Engagement of course is not a one-way street from the state down. As governments pass regulations, policies and administrative procedures to regulate the interaction between formal and informal justice, there are also multiple example of non-state justice institutions adapting themselves to better integrate with state systems.
Justice for the Poor research in Indonesia and other recent studies from the Pacific demonstrate a growing trend towards customary authorities of their own volition codifying local norms and formalizing local structures. Jaap Timmer, an anthropologist from Leiden University, has dubbed this “being seen like a state”, though it might equally be described as “being seen by the state.”47
In short, some customary authorities, are adopting state-like forms through codification of local norms and formalization of dispute resolution structures. This looks like an attempt to grasp the authority of the state to strengthen legitimacy but it could also perhaps be a strategy to avoid state intrusion by taking a form that the state recognizes, understands and will then leave alone.
Selected Examples of Interaction
In this next section we briefly examine a few different examples of engagement between state and non-state justice systems, focusing on full incorporation hybrid institutions and non-incorporation legal recognition.
Hybrid Institutions
Philippines: Barangay Justice System (BJS)
The BJS is a program of compulsory conciliation and mediation at barangay or village level. The system seeks to promote speedy and accessible settlements of legal problems without recourse to the judiciary. It is implemented in all 42,000 barangay in the Philippines.48
Impetus for the BJS derived from the limitations of the formal system. Following a remarkably rapid, top-down policy development process, the system was introduced in 1976 by Presidential Decree 1508 (PD 1508) and later enshrined in the 1991 Local Government Code. The BJS was created with very clear objectives, namely to:
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promote speedy administration of justice;
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perpetuate the time-honoured tradition of settling disputes amicably for the maintenance of peace and harmony;
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implement the constitutional mandate to preserve and develop Filipino culture; and
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relieve the courts of docket congestion and thereby enhance the quality of justice dispensed by them.
While some commentators felt the BJS was merely an attempt by then President Marcos to extend state control into the village, others assert that it was mostly a community empowerment initiative.
Presidential Decree 1508 established a mediation board in each village known as the Lupong Tagapayapa or Lupon. The village head, or barangay captain, chairs the Lupon which comprises 10–20 members depending on the size of the village. The captain appoints the members of the Lupon based on selection criteria established in the legislation.
Cases are brought initially to the barangay captain for conciliation. If a settlement is reached, it is written up and signed by both parties. The settlement then has the legal effect of the final judgment of a court. Legal representation is prohibited, case fees are low or non-existent and time limits for settlement are between 15-30 days.
Cases covered are minor civil disputes and criminal infractions.
While, like most ADR, the Barangay Justice System has not reduced case backlogs, the system has proven popular. During the first 10 years over 800,000 disputes were heard. Current caseloads are now in the order of 200,000 per year. This volume of cases represents a vote of confidence in the system.
Most assessments of the system have been positive in terms of quality of justice. Settlement rates are consistently high, ranging from 65 per cent to 89 per cent. The most authoritative nationwide survey, conducted by the Social Weather Stations, reports satisfaction rates of up to 69 per cent (Mangahas, 1999). Similarly, the evidence which exists on compliance rates suggests that BJS decisions are highly durable. Voluntary compliance with mediated agreements is reported to be as high as 91 per cent (Tadiar, 1988: 317).
In contrast to the costly Philippine judiciary, the barangay system delivers a highly affordable service. Infrastructure costs are negligible, as mediation usually takes place in the barangay captain’s house and Lupon members serve without payment. Case filing fees range between zero and 50 Pesos (around US $1).
Other regional initiatives: PNG and Bangladesh
While in theory a mediation system, in reality most cases submitted to the Barangay Justice System are arbitrated by the village head.
Similar hybrid institutions were established around the same time in other countries in the region. Both Papua New Guinea and Bangladesh, for instance, established Village Courts to adjudicate minor disputes and criminal offences.49 We turn now to a brief examination of experience with these institutions.
Papua New Guinea
Headed by village leaders appointed as “magistrates”, the PNG Village Courts cover most of the country, including rural and urban areas. Like the Barangay Justice System, the Courts are an accessible forum for dealing with petty disputes and criminal acts. Although far from perfect, the Village Courts are considered by many analysts to be the bright spot in a problematic justice sector, a successful synthesis between different traditions.
Bangladesh launched its own Village Courts in 1976 pursuant to the Village Court Ordinance. Established with the authority to resolve minor civil and criminal cases, the Courts are headed by a local official and include a panel of peers as judges. The Courts were intended to marginalize traditional dispute resolution processes known as shalish by introducing a more formalized process, primarily to mitigate what were considered unduly harsh punishments handed down by shalish tribunals, particularly with respect to women’s rights.
Experience suggests that where supported by local NGOs, particularly the renowned Madaripur Legal Aid Association (MLAA), the system is functioning well. However, legal aid organizations are estimated to cover around 1% of villages in the country.50
Where NGOs do not provide oversight, assistance for socialization, documentation and community education, the Courts are either yet to be established in any meaningful way; or are simply an extension of shalish processes. As Golub has observed, ‘often the reality of village courts does not differ substantially from that presented by the traditional process.’51
Implications and Challenges
So, what does the experience of these hybrid institutions in three quite different countries tell us? The picture is mixed. In PNG – a state with minimal presence outside urban areas – and the Philippines – a middle income country that nonetheless suffers from pockets of violent social conflict – hybrid institutions have operated with some success.
Perhaps counter-intuitively, central to their success seems to be the absence of substance or structure to the Village Court reforms. Avoiding prescriptive regulations on process and substance effectively created “delegalized” environments that seemingly helped the BJS and Village Courts to effectively adapt to the range of social, ethnic, religious and cultural contexts in the Philippines and PNG. Locally legitimate processes fill the space.
In the Philippines as well, a very strong civil society has been partly able to compensate for the state governance deficit by providing training and other assistance to barangay councils across the country.
By contrast, the Bangladesh Village Courts diverged from existing institutions and attempted to be more prescriptive in terms of the nature of the hybrid institution. This could explain the failure of the courts to take root.
Besides this observation, a number of other challenges emerge that can inform future thinking on the issue of hybridization. These are broken down by: (i) scale and resources; (ii) quality of justice; (iii) formalization of the informal and; (iv) minimal state capacity for oversight.
Scale and Resources
As discussed above, the State generally seeks to engage with informal justice to either “improve” the quality of informal systems and/or enhance the social relevance of the formal systems.
Institutional challenges in rolling out a new hybrid institution are significant in such contexts. In the Philippines, the Barangay Justice system does not exist in many remote, rural locations. In some heavily conflict-affected locations in the south it reportedly does not function at all.
The experience in Bangladesh also highlights the challenges of establishing a new institution. Similar efforts in Indonesia, for instance, to establish new village-based mediation mechanisms have failed, collapsing after external funding dried up.
Quality of Justice
Delivering high-quality justice is equally challenging. In the Philippines, the majority of Barangay Justice mediators have never been trained as the scale is simply too large. In Bangladesh and Papua New Guinea the Village Courts have enjoyed very little government support.
Quality of justice is also undermined by the absence of supervision or monitoring. Village Courts in PNG are often reported to overstep their jurisdictional limitations, deciding over serious criminal cases such as rape and murder.
Formalizing the informal
Another risk is the potential that state engagement with customary systems can formalize and delegitimize the informal, in the process undermining its very advantages, namely flexibility to match process, remedies and sanctions to local realities. This is particularly the case if non-state justice actors are paid by the government.
Codification of norms in particular is of course extremely controversial. While carrying the advantage of encouraging transparency and consistency, the process itself risks locking in one person’s or group’s interpretation of local norms, when these are almost inevitably contested.
On the other hand, formal recognition of village justice systems also risks legitimizing the illegitimate and entrenching “poor justice for the poor.” As Sally Engel Merry memorably once said of informal justice systems, they inevitably reflect ‘what the stronger is willing to concede and the weaker can successfully demand’ (Merry, 1982: 23).
Absence of supervision and oversight
Thus, while the harmony imperative of local justice systems might well be logical for rural communities, it is questionable whether the state should extend recognition to such systems where it lacks the capacity to provide supervision and oversight.
A live policy debate on this issue is currently underway in one of the world’s newest countries, Timor Leste. In Timor a Bill on Customary Law and Community Justice has been drafted, with the aim to ‘improve the access to justice of the population at community level through the establishment of a regime of recognition and limits of customary law.’ (Draft Law, Section 1).
Replete with admiral aims to enhance gender equity, prevent cruelty towards children and regulate forced marriages, one nevertheless has to question the merits of a law that the state itself clearly has little capacity to enforce.
While government policies can and should be aspirational, laws should not. Alternative reform measures such as sub-national regulations, court administrative circulars or locally-based empowerment activities might be more effective means to achieve the same end.
Non-incorporation
Hybrid institutions are not the only means of recognition of course. Equally or more common is the approach of non-incorporation whereby government legal frameworks provide recognition of non-state justice systems so long as processes and norms are not inconsistent with state law. This form of recognition has the advantage of not introducing new institutions, but building on what already exists. This has been the dominant form of engagement in Latin America over the last thirty years.
It is also the approach of the Justice for the Poor program in Indonesia, and I will finish this presentation by providing a little detail on our “Strengthening Local Justice Systems” program. This is not to sell the idea, but merely to present an example with which I am familiar.
Quickly by way of background, the Indonesian Constitution and multiple laws recognize the existence of customary law and the role of village leaders and councils in dispute resolution. Courts are also required to take into account the outcomes of customary law tribunals in deliberations. In reality, however, for most of the history of post-independence Indonesia, the government systematically sacrificed the rights of customary communities in the name of development.
Since 2001 the implementation of wide-scale regional autonomy has opened up the prospect of enhanced recognition of local customary forms of governance, including for dispute resolution. Where this reform space has been exploited, it has exclusively been to reinvigorate what Glenn calls “the old ways”; customary systems of dispute resolution building on the power of indigenous ethnic male elites.
Indonesia’s non-incorporation mode of recognition suffers from a number of problems. The authority and jurisdiction of village heads and tribunals to resolve disputes is not defined. Judges who are required to take into account local customs and habits often do not understand them.
The discretion of formal justice actors to prosecute, mediate or refer cases back to village institutions is wide. In our research, many serious cases, including sexual assault and domestic violence, were referred back to village institutions by the police, only then to be neglected. On the other hand, a number of cases, again mostly sexual offences against women, were mediated at the local level, often with outcomes unsatisfactory to the victims.
A Typology of Interaction
So, we return to the dilemma posed by Glenn at the beginning of this paper. In countries where the state is weak, but traditional justice systems have been undermined by social mobility and modernization, what is left? Glenn suggests an inevitable slide into violence. Experience in many conflict-affected countries, including post-Suharto Indonesia, tends to bear that out.
However, he hints at – and the Justice for the Poor program in Indonesia has explicitly sought to forge – a “middle ground” between formal and informal justice. One that marries the authority, relative neutrality and accountability of the state with the social accessibility and legitimacy of customary authorities.
The main aim of this “middle ground” approach is explicitly to improve the performance of both systems – by bringing in a stronger recognition of local customs and practices into the formal system; and introducing state oversight and Constitutional principles that protect human rights and the interest of marginalized groups into non-state justice systems.
In practice, what does this look like? The first point to make is that it doesn’t look the same everywhere. The program in Indonesia operates in two provinces that have very different traditional justice systems. West Sumatra has very well-established traditional customary tribunals, with a standard structure and widely understood legal norms in the context of a dominant indigenous ethnic culture.
In West Nusa Tenggara, the other program location, the situation is more fluid. Ethnically the island is more heterogeneous and a broad range of actors, encompassing village heads, traditional customary leaders and Islamic leaders, are active in dispute resolution.
In both locations, following eighteen months of field research, Justice for the Poor has facilitated the establishment of multi-sector working groups comprising relevant local government agencies, the formal justice sector institutions, academics, NGOs and local community leaders to strengthen both the recognition of and, hopefully, the performance of, non-state justice systems.
What the middle ground looks like in both locations is determined by these local stakeholders. By definition, therefore, we are not aiming at an ideal justice system, but a definition of interaction between the formal and informal that seeks gradual and incremental change based on local realities.
Hence, in West Sumatra, given the limited space for institutional change, activities focus on grassroots empowerment for women and policy advocacy to include an expanded role for women on local dispute tribunals.
In West Nusa Tenggara, the program exploits the greater space for change and is more far-reaching. It seeks to support existing efforts to define mechanisms, structures, processes and even norms in a number of villages. The main purpose being to empower communities to both understand and better utilize local justice systems. Training is also provided to local mediators, with a strong focus on involving women and minority groups.
Framework for Engagement
While the nature of activities on the ground varies, our framework for engagement – to forge the middle ground – entails a mix of policy, regulatory and grassroots change. Action is at four levels.
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Firstly, at the grassroots level to support downward accountability and empower weak and marginalized groups to demand better quality service from informal justice. This is the most important priority as it tackles the main weaknesses head on.
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The second priority is to work at the mezzo level to develop the capacity and technical skills of non-state justice institutions and actors.
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The third priority is to look beyond the village to enhance access to the formal justice system in order to open up options and enlarge the shadow of the law.
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To underpin the grassroots work, the final priority is national and regional government policy change to support upward accountability through the establishment of (i) national guidelines that strengthen the interface with the formal sector; and (ii) regional guidelines to institutionalize a core set of principles for equitable and inclusive non-state justice that it is consistent with constitutional standards.
These priorities are laid out in tabular form below.
Level
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Priority Action
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Grassroots/Community
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Empower women and minorities through rights awareness
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Open up access to the formal system through legal literacy and circuit court programs
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Support social mobilization and organization to address trans-communal disputes
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Village Institutions and Non-State Justice Actors
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Build the skills and capacity of non-state justice actors to resolve disputes professionally
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Support clarification of structures and norms
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Support representation for women and minorities in village institutions
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District Level
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Establish a regional regulatory framework that enshrines constitutional standards ensuring right of appeal, humane sanctions and representation for women and minorities
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Build upward accountability by supporting civil society and government monitoring and oversight of non-state justice
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National Level
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Issue court regulations clarifying the jurisdiction of non-state justice vis a vis the courts
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Establish a Community Justice Liaison Unit in the Ministry of Law and Human Rights to encourage compatibility and consistency between non-state and state justice (along the lines of the Papua New Guinea model)
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It is worth pointing out that we deemed this range of operational options as feasible in only two of the five research locations. In other provinces, such as Central Kalimantan, ethnic conflict between indigenous Dayaks and migrant Madurese had sparked a strong reassertion of Dayak identity, to the exclusion of other ethnic groups. Little room appeared politically for change to support more inclusive local dispute resolution practices. In Maluku province, another post-conflict location, government capacity and willingness to oversee and supervise informal justice systems was highly limited. Supporting strengthened recognition, therefore, appeared to be too high a risk for the Bank.
Conclusion
In the rush to acknowledge the reality of legal pluralism, care and caution is called for. Successful reforms to integrate the virtues of state and non-state justice are those that take a light touch, build incrementally on existing systems and are defined by local stakeholders. These are generic development principle and thus should come as no surprise.
However, if not based on a deep understanding of local context and appreciation for capacity of the state, regulatory recognition of customary justice systems can be counter-productive or simply unproductive.
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