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 Asiacustomary laws with a renewed vision of legal pluralism will require strongpolitical will and commitment, particularly at the State level. Theeffectiveness of its operational mechanisms and enforcement will depend onthe level of recognition and autonomy given to traditional authorities. Thekey issue will be the extent to which institutional arrangements and theapplication of customary laws will conform to the underlying principles ofindigenous legal regimes and their cultural, spiritual and moral beliefs.Often, even in cases where there is strong recognition of customary lawsand autonomy is given to traditional authorities, the tendency for Statestructures (based on the principles of positive law) to undermine andsupersede traditional governance structures (based on the principles ofcustomary law) remains a serious problem. Frequently, bureaucrats andState agencies, who are ill-equipped to handle customary procedures, arethe final arbiters or authority in matters concerning communities. They arealso responsible for developing and implementing operational mechanismsfor the implementation of the provisions of the Constitution or State law.The tendency to automatically assume that bureaucrats and State agencieshave the knowledge to develop appropriate institutional modalities andmechanisms as well as the capacity to handle customary procedures, defeatsthe very purpose of such constitutional provisions. The result is thebureaucratisation of procedures and the deformation of customarygovernance structures.A genuine legal pluralism framework will require appropriate institutionalsupport mechanisms that facilitate the restructuring of the fragmented legalorder and governance structures, and nurture its growth in accordance withthe underlying principles of customary laws and the cultural, spiritual andmoral beliefs of indigenous communities.This publication is the outcome of a regional consultation with the aim ofgaining better insights into some of the fundamental issues and questionsdescribed above. By shedding light on divers Asian countries’ legalexperiences, it is hoped that this publication will help us better understand,and shape, the future of legal pluralism in this region.15
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaOn behalf of the Asian Indigenous Peoples Pact (AIPP), I would like to joinForest Peoples Programme (FPP) in thanking our partners, the Rights andResources Initiative (RRI) and the Centre for People and Forests(RECOFTC) for their support and input to the Legal Pluralism workshopheld in 2011. I also extend my thanks to the indigenous authors of thechapters of this publication for their valuable contributions and insights intothe multi-faceted nature of legal pluralism in Southeast Asia.16
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Divers Paths to Justice - English - Forest Peoples Programme

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