Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiathrough formal codification, which is different from simple ‘recognition’,may be a relevant, and important, distinction, to be borne in mind. 45Legal and ‘judicial’/‘juridical’ pluralismThe extent to which customary land rights are implemented may beenhanced in systems that not only practice legal pluralism, but also inwhich there is also ‘judicial’ (‘juridical’) pluralism, involving indigenouspeoples in dispute resolution. Membership of indigenous peoples’representatives in justice administration bodies (e.g. “tribal” courts in theCHT and in Northeast India, the Land Commission in the CHT) can make abig difference. 46 Where such bodies are absent or impracticable to bringabout, alternative ‘access to justice’ mechanisms may be lobbied for, with aview to reducing dependence upon State bureaucratic or mainstream justicemechanisms, in which indigenous peoples are disadvantaged on account oftheir marginality.Substantive fairness in justice systems versus procedural fairness:moving away from adversarial modelsThe mainstream models of justice administration, particularly, in “commonlaw” countries tend to be ‘adversarial’ in nature with the judge supposedlyplaying a neutral umpire’s role. Where asymmetrical relationships arepresent, this leads to unfair results against the interest of the weaker party.Thus, reforms to such justice systems, such as through “public interestlitigation”, trying to undo the rules of “interest”, “standing” etc. may helpput marginalised justice seekers on a stronger footing.Registration and survey: State versus indigenous modelsSometimes customary land rights are recognised but are regulated within45 For an argument against formal codification of customary law, see Roy 2004a,Roy 2005.46 For an overview of strong indigenous and ‘hybrid’ State-indigenous justicesystems involved in administering customary law, see Roy 2005.124