Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaIn a positive development, and as a result of the growing resistance andassertiveness of indigenous peoples’ movements, recent years have seen amove towards a greater acceptance of legal pluralism as part of the searchfor social order and co-existence. This is true in the context of Asiancountries, particularly Malaysia, Indonesia, Philippines, India andBangladesh. In a number of countries—particularly those mentionedabove—custom is recognised as a source of rights in the nationalconstitutions. In Sabah and Sarawak, the Bornean States of Malaysia, thereare legal and administrative provisions for the exercise of customary lawsthrough native courts. In the Philippines, native title to lands is recognisedand it is required to obtain the Free, Prior and Informed Consent (FPIC) ofindigenous peoples by statutory law for the implementation of anydevelopment projects or programmes in their lands and territories. In theNortheastern part of India, the ownership of land, territories and resourcesare vested in the communities to varying extents, particularly in Nagaland.Furthermore, in the State of Nagaland, according to the law, criminal andcivil disputes can be settled through Naga customary laws even in Statecourts. This includes the use of community dispute settlement mechanismsand judicial systems instead of introduced statutory law.Despite the fact that custom is an active source of law in Asia, theeffectiveness of its implementation on the ground has remained poor. This isequally true whether there is strong or weak recognition and protection ofcustomary rights and laws in the national Constitution. The problem pointspartly to weak actualisation or enforcement and lack of respect forcustomary laws. As long as customary law is made subservient to positivelaw and is dependent on it for its enforcement, it is unlikely that aharmonious coexistence of both legal systems can be achieved. Thechallenge, therefore, is how can this hierarchical relationship be undone tosecure the equal enforcement of customary laws and positive laws? Andhow can meaningful self-determination, a fundamental right of all peoples,be attained by indigenous peoples?To raise these issues and questions is not to negate the move towards legalpluralism but rather to explore the full potentiality that legal pluralism as aconcept and practice can offer in the context of concrete experiences on the9
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaground. Legal pluralism informs us as to the ways in which the legalframeworks in which societies operate and develop have met and adapted tonew challenges and how these frameworks are being used by localcommunities and indigenous peoples to respond to changing spiritual,moral, cultural, social, economic and environmental conditions. Suchadaptability is required of all legal regimes in order to maintain legitimacyand effectiveness and the long term well-being of society. The study andexploration of legal pluralism is still in its infancy and there remains a largegap in our understanding of the modalities and mechanisms for buildingfunctional interfaces between legal regimes in pluri-cultural societies. Inorder to address the inherent tensions between customary and positive lawsystems, it will be necessary to develop greater awareness of the distinctionsbetween them, including their respective nature, objectives, principles andcharacteristics.There are several varying definitions of customary law but no universallyaccepted definition. Some anthropologists have referred to it as ‘primitivelaw’ and have studied it as a part of legal anthropology, in an effort tounderstand indigenous peoples’ institutions of social control. Furthermore,conceptually speaking, customary law has tended to be perceived by Statesas formless, astructural and thus unsuited to the needs of the modern nationState. 1Moreover, taking the case of the Nagas of Northeast India as an example,most definitions and descriptions of customary law have omitted twoimportant dimensions, namely:1. The constitutional law of the village2. Laws regarding inter-village and inter-tribal relationsConstitutional village law pertains in particular to the authority of theVillage General Assembly and the Council of Elders. It also concerns the1 Boast 199910
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