Justice For All? - UNDP

INTRODUCTION
007
PART 1
lawyers – whether or not they handle a case
in accordance with established procedures
or in a more ‘informal’ manner. In contrast,
‘informal justice system’ is used to refer
to all forms of dispute resolution operating
outside of the formal justice system, including
(but not limited to) the application of customary
law (adat) and mediation or arbitration
by village heads, religious leaders and other
community figures. Limits are however
placed on what may constitute the ‘informal
justice system’ – direct resolution between
disputants without the assistance of a third
party is excluded from the definition, as are
situations where friends of one party may
attempt to intercede with another party on
the first party’s behalf. A further category of
‘auxiliary justice institutions’ is used to
refer to formal state institutions (such as
local government offices) that do not comprise
part of the formal justice system yet
nevertheless exercise administrative authority
over matters that feature prominently as
sources of injustice for local communities
(for example, land or fisheries).
It is recognised that the formal / informal
dichotomy employed here is somewhat
problematic in a number of respects. For
example, these terms do not always
adequately capture the extent to which
the State is involved in a particular justice
process, and nor is the dividing line between
formal and informal as clear in practice as
their definitions would tend to suggest. 8
Further, describing a traditional justice
system as ‘informal’ may imply that it is
somehow simplistic or inferior when this
is not the case – on the contrary, some
‘informal’ justice systems may apply a highly
developed system of rules and be quite
formal in procedure. The terms ‘formal’ and
‘informal’ justice system are therefore
better regarded as useful shorthand rather
than precise technical definitions.
The report also adopts the language of
a human rights-based approach, which
speaks of claim holders (those who are
entitled to the enjoyment and protection of
rights) and duty bearers (those institutions
or persons, formal or informal, with a duty
to protect or facilitate the enjoyment of those
rights). The terms ‘poor and disadvantaged’
and ‘marginalised’ are used more or less
interchangeably, and refer to those who are
least able to enjoy their right to a standard
of living adequate for their basic health and
well-being, including sufficient food, housing,
healthcare and education, or those who
suffer discrimination because of their gender,
ethnicity or religion.
When dealing with government administrative
units, the report uses the term ‘district’
to describe kabupaten and ‘municipality’ to
describe kota, although ‘district’ may sometimes
be used to refer implicitly to
both, because they occupy the same strata
in the hierarchy of government. Kecamatan
is referred to as ‘sub-district’, while the
rural desa and urban kelurahan are both
translated as ‘village’. The sub-village
administrative unit of dusun in rural areas
and rukun warga (RW) and rukun tetangga
(RT) in urban areas are translated respectively
as ‘hamlet’ and ‘ward/neighbourhood
association’.
8 While the formal justice system will always be state-based, it does not follow that the informal justice system will always operate
completely independent of the State. In some cases, actors in the informal justice system may be members of the state apparatus
(such as local government officials), while in other cases informal justice processes may receive some degree of state recognition.
Similarly, where police officers resolve a matter informally rather than through official channels, have they strayed so far from their
official mandate that they are more appropriately regarded as acting completely outside the formal justice system, or have they
continued to act on behalf of the formal justice system albeit inan informal manner? The question is of course one of degree whose
answer will depend heavily on the circumstances of each individual case.
Justice For All? - An Assessment of Access to Justice in Five Provinces of Indonesia