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 political and social affairs, customs and customary laws ensure thatdecisions are made by following the principle of consensus in decisionmaking.The basic principle at play is the respect of diversity. Therefore, asthe executive head, the Council takes up issues in the role of facilitator inorder to achieve consensus, and not as the enforcer of authority and power.Although indigenous peoples are very varied, a considerable degree ofsocial egalitarianism in customary law is evidenced by many traditions ofindigenous communities, including those of the Naga, whereby, the rights ofa free member of their tribe are as respected as the rights of the chiefhimself or herself.In natural resource management among indigenous communities, customarylaws serve as the primary basis for the regulation of rights, and theapplication and management of their collective knowledge over their landsand resources. Commonly, such management is governed by the principlesof ‘use and care’ (reciprocity), the ‘first owner’ 4 , guaranteed usufruct rights 5of community members and the collective responsibility of the communityfor the protection of individual and common property.In terms of scope, indigenous peoples’ ancestral territory determines theextent of jurisdiction and of the application of customary laws, but spatialfactors may not limit the relevance of these customary laws in a strictmanner. For example, usufruct rights on the use of natural resources oncommunity lands may be guaranteed to neighbouring communities, andhunting grounds may be shared by many indigenous communities withneighbouring social groups. Referring back to the example of the Nagas,Naga communities have a very elaborate water-sharing scheme for theiragricultural systems that cross-cuts villages and tribes. According to thiswater-sharing system, water must be shared equally and it must be ensuredthat downstream communities are not deprived of it. Additionally,communities living in upstream areas must not inundate the paddy fields of4 An individual who has acquired superior rights to or responsibilities for collectiveproperty.5 The legal right to use and enjoy the advantages or profits of another person'sproperty.13
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiathe downstream villages through irresponsible management of check-dams.The chain of connections between villages in this sense literally goes rightup to the source.Similarly, among the Nagas, wars were fought not for the purposes ofconquest or subjugation. Most were fought in order to safeguard family andcommunity honour. It was a customary practice within some indigenouscommunities to have a friendly village that was bigger or stronger as theprotector of a weaker or small village. Wars were fought under theobservation of strict customary rules, monitored by a neutral party. Highnumbers of casualties were never allowed. There were also rituals for thewell-being of the family or community that were preferably performed byanother village or tribe on their behalf.Various types of conventions exist between villages and tribes, such as thosepertaining to security and war, dispute resolution, sharing and managementof resources, hospitality and rituals. Hence, the notion that customary lawsare strictly local is based on the wrong premise. Today, there are tribes thathave established customary courts from the village level, up to the subregionallevel, and beyond, to the highest level court of the tribe.Customary law in itself is plural, but in the course of interaction betweencommunities, common elements have developed and have establishedfunctional interfaces across communities. However, the greatest challenge isto develop modalities and mechanisms in order to move towardsestablishing legal pluralism with positive laws in its truest sense. To beginwith, the fundamental distinguishing principles between the two have to bewell understood. This is not to overlook the importance of the historicalrelationship between customary law, positive law and natural law. Thesethree inter-related legal concepts continue to play an important role in thelegal order and regulation of many countries, whether formally orinformally.Customary law regimes have been and continue to be flexible systems oflocal governance capable of adapting to the changing needs and realities ofthe societies they govern. However, achieving a genuine recognition of14
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Divers Paths to Justice - English - Forest Peoples Programme

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