Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaof natural resources which tend to place restrictions on customary systemsof land use and management just as they are recognised. The trend of‘bureaucratising biodiversity’, as I refer to it, actually has the effect oftaking control out of the hands of communities and empowering Stateagents authorised to oversee ‘community forests’ and ‘co-managed’protected areas.As Favali and Pateman note, aspects of law which had often been left tocustom – such as religious practice, land, marriage and personal ethics – arenow increasingly regulated through statutory law, by the administration andthrough the operations of the courts. Yet, as they note,Further dilemmasparadoxically it is traditional law which is more flexible in theface of change. While statutory law requires legal revisionthrough executive and legislative acts, customary lawconstantly realigns through the interpretative acts of society.Even common law legal traditions cannot match itsdynamism. 62There are several other major dilemmas with the assertion and recognitionof customary law which deserve mention. These include:• The challenge of freezing tradition even as indigenous peoplesthemselves take control of their systems of law and codify their owncustom.• The challenge of clarifying the jurisdiction of customary law systems:over which areas and persons do these systems apply; what happens ifdisputes are between indigenous and non-indigenous persons; what is toprevent plaintiffs and defendants ‘forum shopping’ to find the court mostfavourable to them; is that a problem; how do you avoid double jeopardy ordouble punishment from multiple courts; what crimes or torts should be62Favali & Pateman 2003:21533