Divers Paths to Justice - English - Forest Peoples Programme

More documents

Recommendations

Info

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaof the Romans who used indirect rule to annex conquered areas throughtreaties with cities, which included provisions for the operation ofcustomary law especially in the Greek East. 32 Later, the same policy wasapplied in western Europe when ‘ruling barbarians, through barbarians’ wasperceived as the best approach to extend power over unruly frontierprovinces. 33As Niccolo Machiavelli famously noted in The Prince:When states, newly acquired, have been accustomed to livingby their own laws, there are three ways to hold them securely:first, by devastating them; next, by going and living there inperson; thirdly by letting them keep their own laws, exactingtribute, and setting up an oligarchy which will keep the statefriendly to you... A city used to freedom can be more easilyruled through its own citizens... than in any other way. 34Another rationale whereby, in 19 th century colonial India, Africa andSoutheast Asia, plural legal systems were developed was that ‘customary’law, rather than the laws of the purportedly secular colonial State, were seenas a more appropriate way to deal with issues related to family and religion,which were considered sources of local cultural authenticity and best notinterfered with too much. 35However, exactly because recognition of customary law implies not just thereinforcement of the laws themselves but also of the power relations andinstitutions through which they are developed, transmitted, exercised andenforced, it is essential to examine plural legal systems from both politicaland legal perspectives. Recognition may imply not just the continued32 Harries 1999:32. In this the Romans actually took the lead from the Greeks whorecognised that each polis (city state) had its own laws, immunities and freedoms,which were not Pan-Hellenic but had to be recognised as specific to each place(Ober 2005:396).33 Heather 2010; Faulkner 200034 Machiavelli 1513:1635 Loos 2002:525
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaoperation of customary laws but also the cooptation and control of the veryfabric of indigenous society.Cooptation of indigenous elitesFor example in colonial Sarawak, the Brooke Raj recognised and reinforcedthe authority of the hierarchy of customary headmen and chiefs – penghulu,pemancha, temonggong, tuah kampong – which permitted the colonialpower to control and tax native people right down to the village level.Exactly because these leaders’ authority was reinforced by colonial Staterecognition, so the same leaders, over time, became increasinglyindependent of, unaccountable to, and detached from, the communitymembers over whom they had authority and whose interests they wereexpected to represent. In the post colonial era, the division betweentraditional leaders and village people has, in many communities, proven tobe a fatal weakness as they seek to resist the takeover of their lands bylogging, mining, hydropower projects and plantations. 36Likewise in 19 th century colonial Natal, the small white colonial forcesought to control the local African polities though simultaneous recognitionand subjugation. As Knight informs us:...under the ‘Shepstone system’, which dominated the colony’sadministrative approach for more than half a century, theamakhosi (Zulu leaders) were transformed from autonomousrulers into a layer of the colonial government. They appearedto govern their people according to traditional law and custom,but in fact had been through a subtle and profound shift inpower; their dictates were now subject to the approval of theNatal legislature and their authority remained unchallengedonly so long as it did not conflict with the broader policies andattitudes of the colonial regime. 3736 Colchester 1989; Colchester, Wee, Wong & Jalong 200737 Knight 201026
Page 2 and 3: Divers Paths to Justice: Legal plur
Page 20: Divers Paths to Justice: Legal plur
Page 25: Divers Paths to Justice: Legal plur
Page 77 and 78:
Divers Paths to Justice: Legal plur
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173 and 174:
Page 175 and 176:
Page 177 and 178:
Page 179 and 180:
show all

Divers Paths to Justice - English - Forest Peoples Programme

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?