Justice For All? - UNDP

EXECUTIVE SUMMARY
The key point to emerge from the assessment
is that the majority of issues that villagers
cite as ongoing sources of injustice
are those that are not amenable to resolution
via the informal justice system. As effective
as informal mechanisms may be in small
cases of a local nature, issues involving
parties outside the village structure – such
as government agencies, corporations or
even citizens from neighbouring villages –
will generally be beyond their effective jurisdiction.
The crux of the problem for many
communities therefore lies in the fundamental
mismatch between citizens’ relative prefxiii
cases the village head. The division is not
always so clear cut in practice, as resolution
according to adat law often involves
elements of mediation and ‘soft’ arbitration
and in places such as Maluku, the adat
leader may simultaneously hold the position
of village head. Meanwhile, in ethnically
heterogeneous communities, the two
processes may exist side by side with the
choice of forum depending on the ethnicity
of the parties to the dispute.
The jurisdiction of an informal justice mechanism
is generally limited to the village in
which it is based, as parties from outside
that village will not necessarily acknowledge
the moral authority of the relevant informal
justice actor. This naturally restricts the
types of cases that may be effectively resolved
by informal means to predominantly
small scale matters involving parties resident
in a village. Apart from the advantages of
accessibility, speed and low cost mentioned
above, the informal justice system also
diverts these less serious cases from the
formal justice system, thereby alleviating
pressure on resource-deficient formal justice
institutions. Where punishments are in the
form of fines, the informal justice system
promotes the redistribution of scarce resources
within a village, rather than their
expenditure on fees or bribes for the police
or other formal justice actors. This assumes
that informal settlements and decisions are
actually complied with, which is not always
the case due to an absence of effective
enforcement mechanisms apart from the
imposition of social pressure or sanctions.
These may or may not be successful depending
on the circumstances of a case
and the relative power of the parties involved.
The assessment identified arbitrariness in
decision-making and discrimination against
women and minority groups as two key
factors that sometimes undermine the ability
of the informal justice system to produce
outcomes that take adequate regard of the
rights of all parties. Also of note is that
women are almost completely unrepresented
on village decision-making bodies and
as informal decision-makers. For these reasons,
and despite the informal justice system
being widely viewed by villagers as the most
likely way of achieving an outcome that
‘satisfies the community’s sense of justice’,
there remain a number of situations in which
it falls well short of realising this ideal.
Conclusions and Recommendations
Justice For All? - An Assessment of Access to Justice in Five Provinces of Indonesia