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The Asian side of the world - II

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Jean-François Sabouret

Part Two. National challenges and strategies

Justice for the poor or poor justice?

Leïla Choukroune

Texte intégral

1May 2013

2The Lok Adalat (“people’s court”) is regularly celebrated in the Indian media as one of the most successful alternative dispute resolution mechanisms and is a relatively recent addition to the “justice for the poor” debate. Conceived in response to the flaws of postcolonial or transitional judicial systems, the aim of this international movement, supported by the World Bank and many other international organizations and donors, from the United Nations Development Fund to local nongovernmental orgnaizations, is to bring “access to justice” to the most vulnerable by restoring an “indigenous” legal system that is better suited to the poor. This bottom-up approach caters to the needs of the voiceless and is centred around communities to raise awareness of rights and bring justice to the needy. The Lok Adalat, and its Indonesian counterpart the Adat Council, are nonadversarial, informal, neo-anthropological approaches to law that attempt to reconcile the different features of a “hybrid institution” by mitigating the weaknesses of the formal system while using the strengths of former normative traditions.

3This return to an idealized past, praised for its many intrinsic virtues, has not always been welcomed by the people themselves. The revial of Lok Adalat or Adat is not exactly a natural phenomenon. They owe as much to political decisions, with concrete social objectives, as they borrow from past legal traditions. While they avoid the torments of the formal institutional process, which they denounce as inefficient, they do not serve as stimulus for reform of the system, nor do they provide victims with the quality of justice expected.

4The Asian “access to justice scene” is a superb laboratory, as fascinating examples of tensions, evolutions and hopes for improvement have been seen in recent years. This short opinion pieve rapidly presents some of the main discussions that have stimulated the “justice for the poor” debate in India, China and Indonesia and reflects on the flaws and successes of the formal and informal justice systems in post-colonial and transitional, fast-growing economies.

Bottom-up

5As early as the 1950s, a few years after India’s independence, some members of the Indian National Congress ruling majority expressed their disagreement with the legal reform proposed by the modernists, as they considered that it borrowed too much from the legacy of the British colonizer. To bring harmony and conciliation, to the disdain of reformers such as Dr B. R. Ambedkar (the father of India’s Constitution), they proposed that the traditional panchayats be restored, and nyaya panchayats, or judicial panchayats, were established as part of the 1950s panchayats revival. However, this modern version of the Indian tradition was quite different from its predecessor in many respects: nyaya panchayats were to apply statutory law rather than traditional norms and were not composed of cast leaders but of elected representatives. Not exactly informal but not yet as formal as official justice, the naya panchayats did not appear to meet the expectations of the rural population, and they rapidly died. Some socially inclined lawyers argued that this failure was due to the unsuitable level of formalism, which did not meet the objectives set forth by the proponents of informality: an inexpensive, expeditious, conciliatory system based on customary norms. However, the idea of an indigenous justice better suited to the needy was still very much in vogue in intellectual and judicial circles, and this, as we will see, progressively led to adoption of the Lok Adalat model.

6Indonesia offers another example of a planned revival of customary norms. In post-colonial Indonesia, a plurality of traditional, colonial and Islamic norms coexisted. Village or traditional customary law (Adat) had been officially suppressed from 1874 to 1935 and was then re-established for a short period until the new republic was formed. Recognition of Adat law was viewed as a contradiction to the construction of a modern nation state and was therefore a default legal source. A politically useful reactivation of the legal tradition was therefore not seen until the early 1990s.

Top-down

7More formal means to deliver justice to the poor appeared progressively at this time throughout Asia, and in India in particular. In the early years after the emergency period, Indian reformers were eager to actualize the promise of constitutional rights, resulting in an Indian version of “public interest litigation” (PIL). PIL originated as a rights advocacy strategy in the US civil rights movement of the 1960s, and the term has been used worldwide to describe the many ways in which general grievances have been judged by the courts and the compensation awarded to victims of the State. It is probably in Asia, and precisely in India, however, that PIL has found its most sophisticated, although sometimes ambiguous variation. This “judicial democracy” revolutionized Indian politics, and the extraordinary solutions the Indian population sought differed from the general meaning of PIL. Initiated and led by judges, Indian PIL questioned the traditional separation of powers and the distinctions between adjudication and legislation. Full of popular rhetoric, the Indian PIL was nevertheless a legal and political revolution that led to many social improvements. But it has also progressively shifted from the poor to the middle class and thus moved closer to the US PIL; it is hence at the centre of a controversy on “judicial excess”.

8Interestingly, the Indian PIL has been the trigger of many other forms of public interest litigation in Asia. For example, a PIL is appearing in China. The nascent Chinese approach, however, differs widely from its Indian predecessor, as it also covers general grievances related to the complicated implementation of social and economic rights. In this authoritarian one-party state, the absence of a truly independent, professional Chinese judiciary may partly explain this key difference, but other Chinese specificities come into play so that the current situation appears to be unique.

Bottom-up again

9Nevertheless, the more formal approach did not give all the expected results for the many poor who were awaiting their day in court. With enormous populations and relatively few legal means, India, Indonesia and China, are, in different contexts and with different tools, resorting again to more informal or traditional bottom-up techniques to quench the thirst of aggrieved citizens for justice.

10In India, the first Lok Adalat was held in 1982. The purpose of this semi-institutional justice is to solve petty disputes before they reach already extremely congested courts. Serving as a sort of arena for mediation, the Lok Adalat “court” consists of educated social workers, university law teachers and retired judicial officers who give the poor proper guidance, hence bringing reconciliation and harmony to the community. This “banyan tree justice” has been progressively institutionalized, so that a “Lok Adalat High Court” was established in 2000. However, the applicable law remains rather vague, so that parties must be represented by counsel. From traffic accidents to pensions and divorces, the Lok Adalat hear thousands of cases throughout India. But are they delivering justice?

11In Indonesia, the 1999 post-Suharto regime instituted a broad process of decentralization, in which the reconfiguration of village structures was based on reactivation of the Adat Council, giving authority to village heads to resolve disputes. But here again, despite the noble aspiration to bring justice to the village, lack of clarity on applicable norms and their hierarchy, the immense variety of traditions across Indonesia and the deconnection of the Adat system from the formal judicial system in the absence of a real possibility to appeal a decision do not give credit to this reactivation of the past.

The sirèns of tradition

12These alternative dispute resolution mechanisms borrowed from a recreated past are generally regarded as a success by international donors and local authorities but too often turn out to be the expression of second-rate justice. While these “access to justice” solutions can bring some social cohesion at the local level, they do not necessarily participate in broader democratic objectives, as they tend to reproduce the old systems of domination and exclusion of the weakest. This “bread for the poor”, with the aim of providing the needy with speedy, costless justice and thus responding to the flaws in the formal system, are also the paternalistic expression of a reluctance to share the benefits of growth, as if the poor in the emerging giants will have to wait for another phase of development in order finally to obtain justice.

Bibliographie

Bibliographical indications

Choukroune, Leïla, “Corporate Liability for Human Rights Violations: The Exxon Mobile Case in Indonesia» in Michael Faure and Andri Wibisana (eds), Regulating Disaster, Climate Change and Environmental Harm, Lessons from the Indonesian Experience, Edward Elgar, July 2013.

Choukroune, Leïla, “Labour Dispute Settlement in China”, in Paolo Farah (ed), China’s Influence on Non-Trade Concerns in International Economic Law, Ashgate Publishing, 2013.

Choukroune, Leïla, “Labour Rights Litigation in China and India”, in Surya Deva, Socio-Economic Rights Realization in China and India, Routledge, 2013.

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