Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaForewordLegal pluralism in Southeast Asia: insights from NagalandGam A. ShimrayIndigenous peoples are among the most historically ancient living culturesof the world and have over time developed their own distinct bodies of lawsand institutions of social organisation, regulation and control. These lawsand institutions are expressed and practised in ways unique to their socioculturalcontexts as self-determining peoples since time immemorial. Today,they are commonly referred to as customary laws (and practices).Customary laws govern community affairs, and regulate and maintainindigenous peoples’ social and cultural practices, economic, environmentaland spiritual well-being. However, customary laws and practices andgoverning institutions have come under frequent and repeated attack,leading to their severe distortion and erosion since the period of conquestand colonisation. This situation has continued with the formation of newStates following decolonisation in more recent times. Prejudices againstindigenous peoples and projects of nation-building have led to these peoplesbeing marginalised and the practice of their customary laws, culturalpractices, beliefs and institutions has become a criminal offence in manyparts of the world, including Asia.Nonetheless, indigenous peoples throughout the world, to varying degrees,still continue to regulate their social and cultural practices throughcustomary laws even though they live within State systems. They continueto administer their own affairs in accordance with their own systems of law.This is made possible by the recognition of customary laws in some nationalconstitutions, even though this recognition is still minimal. It is also madepossible by some circumstantial factors, whereby weak States are unable toenforce national laws. In some cases, traditional authorities hold greater defacto control of local affairs and are able to override the application ofrestrictive State laws.8