Empowered lives. Resilient nations. Sharing Experience in Access to Justice Engaging with Non-State Justice Systems & Conducting Assessments Access to Justice Week Summary of Presentations and Discussions October 2010 UNDP Asia Pacific Regional Centre Sharing Experience in Access to Justice: Engaging with Non-State Justice Systems and Conducting Access to Justice Assessments The views expressed in this publication are those of the author(s) and do not necessarily represent those of the United Nations, including UNDP, or the UN Member States. UNDP partners with people at all levels of society to help build nations that can withstand crisis, and drive and sustain the kind of growth that improves the quality of life for everyone. On the ground in 177 countries and territories, we offer global perspective and local insight to help empower lives and build resilient nations. Published by the Asia-Pacific Regional Centre United Nations Development Programme Bangkok Thailand Design: Inis Communication © UNDP, January 2012 Sharing Experience in Access to Justice: Engaging with Non-State Justice Systems & Conducting Assessments Introduction This report summarises the presentations and discussions International Council of Jurists as well as UNDP country from the Access to Justice Week in October 2010 in offices and universities. Bangkok, Thailand, hosted by UNDP Asia-Pacific Regional Centre. This report provides a snapshot of the presentations made by the participants and key points of discussions during By ‘access to justice’, UNDP means “the ability of people, the Access to Justice Week. This report is divided into two particularly from poor and disadvantaged groups, to seek sections according to the following two thematic events. and obtain a remedy through formal and informal justice systems, in accordance with human rights principles and standards.” Access to justice supports the consolidation Non-State Justice Systems: Principles of peace by creating the conditions necessary to and Practices Symposium allow people to resolve legitimate grievances, which might otherwise lead to social conflict. Furthermore, it UNDP has been seeking entry points for working with empowers people to defend themselves and improve non-state justice institutions, having regard not only to their lives and livelihoods. Therefore, accelerating access their accessibility, and the recourse taken by people to to justice is consistent with UNDP’s strong commitment those institutions for resolving a multitude of disputes, to the achievement of human development, where but also to serious concerns from the normative stand- peace, justice and poverty reduction are simultaneously point of international human rights law about inherent attained. biases in non-state systems, especially about gender- related justice outcomes. As such, critical reflections and UNDP as an institution also has a particular commitment to knowledge-sharing are important to improve the way follow and to facilitate the human rights-based approach we think about and design programmes for non-state (HRBA) to programming in development work, in order justice systems, as part of efforts to strengthening access to address the structural issues underlying poverty and to justice for the poor and the marginalized. injustices and to assist the most vulnerable and the disadvantaged in the society. In the Asia region, UNDP In this context, practitioners, academics, civil society and has already published a programming guide and training government representatives were invited to the Access to manuals on access to justice for practitioners. These tools Justice Week to discuss existing policy, analytical literature, have been much appreciated by those engaged in A2J and field experience with non-state justice systems. From initiatives, both within and outside UNDP, and within and this, participants were encouraged to consider common outside Asia. themes, which could then lead to the formulation of some key ‘principles of engagement’ to maximize the potentials In this context, the Access to Justice Week in 2010 focused and benefits of engaging with the non-state justice systems. on sharing experience and facilitating critical discussions During the A2J Justice Week, the discussions on non-state among practitioners, academics, and policy makers on justice systems highlighted difficulties in formulating two important subjects in this field, namely engagement general principles of engagement of state justice systems with non-state justice systems and access to justice with non-state systems in the context of widely prevalent assessments. The Week consisted of two separate yet legal pluralism. They underlined the inevitability of related events: 1) Non-State Justice Systems: Principles adopting an ‘anthropological’ approach to the existence of and Practices Symposium (4–6 October 2010); and 2) the both state and non-state systems, which means addressing Regional Consultation on Access to Justice Assessments particular questions that arise from particular contexts and (7–8 October 2010). The Week had participants from real life experiences. Nevertheless, key recommendations institutions and organisations such as National Legal for programming purposes were made in the course Services Authority in India, the Supreme Court and Civil of discussions – for instance, no programming in this Court of the Maldives, the Economic Social and Cultural area should be taken up without adequate research and Rights- Asia, TIFA Foundation Indonesia, the Alternative full involvement of the constituencies that give non- Law Groups, Asia Foundation, Open Society Justice state justice actors their legitimacy and influence over Initiative, World Bank Justice for the Poor Indonesia, community norms and behaviour. iii INTRODUCTION Regional Consultation on Access to learning on the challenges and opportunities encountered Justice Assessments in designing and conducting the assessment, as well as disseminating and utilising findings for policies and Access to Justice Assessments (A2J Assessments) programming. Similarities and differences among various are integral to efforts to integrate a strong pro-poor assessments were highlighted, and an open discussion perspective in justice reform. They offer a methodology was held on what worked and what would be done framework which specifically seeks the perspectives differently by practitioners. of disadvantaged groups about justice services they currently receive from both state and non-state providers, This report complements a companion publication, and how they should be improved. This is critical in terms Access to Justice Assessments in the Region: A Review of of understanding who has access, and importantly, Experiences and Tools from the Region (UNDP 2011), as well who does not, and why. Previous assessments have as a forthcoming global study report on non-state justice. highlighted a broad understanding of justice as equality, Taken together, these publications should provide critical fairness, accountability for abuse of authority and access pointers to programme staff about how to engage with to remedies for grievances among communities surveyed. non-state/traditional/customary/informal justice systems, Assessments are useful not just for academic research as they are variously described, and should motivate purposes but also in terms of policy and planning for practitioners to adhere more closely to UN System’s government and civil society. Assessments can also be commitment to adopt the HRBA, especially in the context a powerful means of bringing about social and political of justice and human rights related projects. As a follow change by raising awareness of laws and rights and by up to the Access to Justice Week, APRC in 2012 will make building capacities of communities to articulate their ongoing efforts to strengthen access to justice and human claims. The process of undertaking an assessment can rights in the region, including: assistance to UNDP country convene various stakeholders and stimulate dialogue on offices in conducting access to justice assessments (notably initiating reform processes to address access to justice in Sri Lanka); study of the impact and lessons learned from issues and enhance the lives of disadvantaged groups. conducting capacity needs assessment of national human rights institutions; facilitation of activities and dialogues to Within the Asia-Pacific region, UNDP A2J Assessments create a sub-regional human rights mechanism in South have been started or completed in several countries. Asia; and support to the ASEAN human rights bodies. APRC supports UNDP Country Offices in conducting assessments by providing technical support in the design, Without exception, we benefitted tremendously from particularly the development of tools and questionnaires; the insights and expertise of all the resource persons and with sourcing international expertise when needed; and, participants in the Access to Justice Week workshops, with delivering workshops to familiarize the counterparts and we are grateful to everyone for actively sharing their and assessment teams on the HRBA and access to justice. experiences and knowledge. Special thanks go to the organizing team of both events: R. Sudarshan, Emilia The Access to Justice Assessments Regional Consultation Mugnai, Aparna Basnyat, and Johanna Cunningham. Mila was an opportunity for UNDP Country Offices and Sopova was the Rapporteur for the workshop, and Ahjung practitioners to share their own experiences and lessons Lee also contributed in editing this report. Lastly, we learned. Participation from a broad range of countries acknowledge the financial support from the UNDP Global (such as Indonesia, Sri Lanka, the Maldives, Viet Nam, Access to Justice and the Asia Regional Governance Mongolia, Cambodia, Timor-Leste, the Philippines, India, Programmes, without which the events and this report and Pakistan) provided a rich basis for discussion and would not have been possible. Pauline Tamesis Democratic Governance Practice Leader UNDP Asia-Pacific Regional Centre iv INTRODUCTION Table of Contents Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Engaging with Non-State Justice Systems (NSJS) to Enhance Access to Justice for the Poor . . . . . . . . . . . . . . 1 Some Key Points on engaging with NSJS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Regional Consultation on Access to Justice Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Key Points on Conducting A2J Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 PART I: Engaging with Non-State Justice Systems (NSJS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 “Doing Harm” – Risk Awareness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gender Issues in Engaging with Non-State Justice Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Indigenous Peoples and Non-State Justice Systems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Non-State Justice Systems in Contexts of Socialist Legalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Using Information Technology for Non-State Justice Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Designing Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Traditional Actors in New Councils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Practices in the Interface of State and Non-State Justice Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Multiple State and Local Justice Hybrids in ‘Special Areas’ of Pakistan . . . . . . . . . . . . . . . . . . . . . . . . . . .22 The Role of Non-state Justice Systems in Afghanistan: Challenges and Opportunities . . . . . . . . . . . . . . . . . .23 Engaging with Non-State Justice Systems – Principles and Recommendations . . . . . . . . . . . . . . . . . . . . .26 Concluding Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 PART II: Conducting Access to Justice Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Introduction – UNDP and Access to Justice Assessments in the Asia Pacific Region . . . . . . . . . . . . . . . . . . .29 Where do we start: Designing the Research Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 How to make it Happen: Conducting the Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Identifying Recommendations and Guidelines on Developing Access to Justice Assessments . . . . . . . . . . . . .42 Developing Partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Strategic Options and Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 What does it all Mean: Analysis of Data and Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 How can it make a difference: Advocacy and Impact on Policy and Programming . . . . . . . . . . . . . . . . . . . .53 Closing of Access to Justice Week . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 v TABLE OF CONTENTS Annex 1: Access to Justice Week Part I – Non-State Justice Systems: Principles and Practices Symposium – Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Annex 2: Access to Justice Week Part I – Non-State Justice Systems: Principles and Practices Symposium – Participants List – 4–6 October, 2010 . . . . . . . . . . . . . . . . . . . . . 63 Annex 3: Access to Justice Week Part II – Regional Consultation on Access to Justice Assessments – Agenda – 7–8 October, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Annex 4: Access to Justice Week Part II – Regional Consultation on Access to Justice Assessments – Participants List – 7–8 October, 2010 . . . . . . . . . . . . . . . . . . . . . . 69 vi TABLE OF CONTENTS  Executive Summary In October 2010, UNDP Asia Pacific Regional Centre (APRC) authorities. These systems, their processes and procedures, in Bangkok hosted a weeklong knowledge sharing event embody and reflect community values and identity.  As on two key access to justice issues in the region: engaging such, they are dynamic and evolving structures, capable with non-state justice systems and conducting access to of both shaping and responding to socio-economic justice assessments in the region.1 Since there has been dynamics within a community. significant interest in both of these areas demonstrated by UNDP country offices in the Asia Pacific region, UNDP APRC For development organisations and justice practitioners, sought to bring together academics and practitioners to non-state justice systems demand particular scrutiny. On discuss key challenges and opportunities in engaging one hand, as highly accessible, culturally legitimate sources with non-state justice systems and in conducting access of authority they are valuable in settling community to justice assessments, so as to share best practices and disputes, enabling people to collaborate and cooperate. lessons learned for better programming and to ensure On the other hand, they can perpetuate cultural biases that interventions in the region are grounded firmly in and be discriminatory, creating more barriers to equality human rights standards. The following report captures and empowerment. some of these discussions. Increasingly, development agencies are working with non-state justice systems to improve access to justice for Engaging with Non-State Justice marginalised and poor communities.  UNDP, for instance, Systems (NSJS) to Enhance Access to has been working with non-state justice systems in Afghanistan, Indonesia, Lao PDR, Nepal, Pakistan, Timor- Justice for the Poor Leste, and Viet Nam.  These development partners Non-state justice systems are complex and varied and their national counterparts are grappling with the structures.  They exemplify the relationships between practical implications of working with such pluralistic authoritative (often poly-centric) powers within legal systems. communities and their constituents who legitimise those Critical questions include: How can external development partners support processes of positive change within 1 UNDP Asia-Pacific Regional Centre is grateful to all participants in the Access to Justice Week workshops. Academics, practitioners, non-state justice systems without undermining their government and civil society representatives engaged in lively legitimacy, inhibiting their dynamism and responsiveness, discussion which was provoked by insightful presentations. We or disempowering community actors? In the case of non- acknowledge that this report cannot do full justice to the richness of the dialogue. The points associated with participants named in this report state justice systems, which are contextually specific and are drawn from notes, which may not completely convey the import vastly diverse, could there be best practice or guiding of the concerned participant’s intended meaning. Available papers principles for agencies working on improving access to are posted to the A2J Portal: www.a2jportal.org. The Access to Justice Week was organized by the justice and human rights team of UNDP justice? APRC Democratic Governance Unit including R. Sudarshan, Justice and Legal Reform Policy Advisor, Emilia Mugnai, Justice and Human Rights Participants at this symposium were invited to discuss Policy Specialist, Aparna Basnyat, Human Rights Specialist and Johanna Cunningham, Legal Empowerment of the Poor Consultant. Mila Sopova existing policy, analytical literature, and field experience was the Rapporteur for the workshop. with non-state justice systems.  From this, participants 1 EXECUTIVE SUMMARY were encouraged to consider common themes, Programming tools – What kind of which could then lead to the formulation of some key programmatic initiatives can support more ‘principles of engagement’.  After two and a half days of holistic approaches to expand access to deliberations however, it was evident that the complexity justice? and contextual-nature of non-state justice systems defy encapsulation in a definite set of principles of Providing Platform for Dialogue on Injustices engagement. and Just Solutions However, clear recommendations for programming Where international development partners are perceived purposes were often made in the course of discussions. to be neutral, they can provide a platform for dialogue. Among them is the recommendation that no programming They can support state authorities, non-state justice in this area should be taken up without adequate research actors and community representatives to discuss issues and full involvement of the constituencies that give non- of injustice and ‘just solutions’. Further, they can catalyse state justice actors their legitimacy and influence over community-based discussions on these issues which community norms and behaviour. could lead to constructive proposals for change and reforms in the understanding of justice. Some Key Points on engaging with NSJS ‘Supporting the good struggle’ Research – Are we asking the right questions? How is the problem identified? Research is needed to locate ‘critical insiders’ – those who are questioning prevalent norms and who are committed Who identifies the problem is important.  Concerns with to transformative change. These are the people that can non-state justice systems identified by the state may bring about changes from within the community itself. not reflect concerns of the actual users.  Likewise, values External partners can help ensure that the communities espoused by international development partners may not themselves resolve normative conflicts by confronting resonate with existing community norms. If there are no normative dilemmas. local champions to espouse an alternative set of norms and values, there remains the risk that desirable changes in current community norms may not come about. Paralegals Moreover, activism on the part of international actors in this arena carries the risk of defining the issues as a conflict Training laypersons with sufficient legal knowledge can between two sets of norms that are incommensurable or be a cost-effective means of making legal services more irreconcilable. accessible to people. Paralegals who have familiarity with both the formal and non-state systems can bridge The notion of ‘injustice’ was identified as a starting point the two, to benefit seekers of justice.  Often, as members better suited to identifying more holistic solutions. In of the community, they will be known and trusted this context, the entry point for engagement becomes and can counter ill will and negative feelings towards ‘people’s grievances’, or discriminatory actions against professional lawyers and the formal system.  However, particular groups, i.e. horizontal inequalities2. Such a paralegals who are perceived to push justice seekers programmatic focus directs attention to the purpose and towards mediation or towards particular outcomes will function of justice systems, rather than only the forms of compromise the neutrality and trust which their position justice systems. requires. Therefore, there must be clarity in the purpose of paralegals including a clear mandate and appropriate While identifying problems, we must also ‘identify training. ourselves’: How do we manage our own self-awareness? What can be achieved by expanding community- awareness raising? What is the role of international actors Codes of Conduct & Demarcation of in systems of governance and organisation established Jurisdiction through custom? Are interventions having the desired affect? Rather than measuring awareness levels raised, It is essential to provide platforms for deliberation on agencies should seek to measure impact – what are the the demarcation on jurisdictions between non-state tangible results of the programme and has the user’s and state systems so there is consensus on which crimes experience improved.   should be handled by the state and what redress is best provided through non-state systems. There is the risk of ‘vigilantism’ should the state fail to meet the community’s 2 Francis Stewart, ‘horizontal inequalities’, forthcoming. needs for justice and security. Retributive justice meted 2 EXECUTIVE SUMMARY by self-appointed agents will often be violent, lack due is important. Non-state justice systems normally do process and result in irreversible consequences. Non- not need large amounts of external resources, and any state justice actors can be encouraged and supported to additional resources must be invested in ways that do develop codes of conduct for themselves to ensure due not upset the existing social structures and distribution of process and reduce arbitrariness in their modes of making power and influence within the community. decisions as well as to ensure increased fairness, clarity, and standard procedures in dispute resolutions.  Since making positive changes in non-state justice systems is a long term project, there is always the risk that short-term project horizons of external partners can cause ‘Substitution’ – eliminating harm whilst more harm than good. Therefore, such interventions maintaining harmony should be designed only after adequate research leading to a proper understanding of such poly-centric power In the course of resolving disputes, traditional communities equations within the community. often tolerate what could be seen as violations of human rights in the interest of ‘balance’ or ‘social harmony’ between disputing parties and also in the community as Regional Consultation on Access to a whole. In such cases, creating space for discussions on Justice Assessments what is ‘injustice’ with a broader perspective could help the communities to find alternative ways of dealing with such The second component of the Access to Justice Week issues, so that more fair and transparent justice outcomes – the Regional Consultation on Access to Justice for the victims can be made without criminalising a party Assessments was an opportunity for UNDP Country or naming certain practices as human rights violation. Offices and practitioners who have conducted access to justice assessments to come together and share their experience and lessons learned in designing and Training Manuals conducting access to justice assessments as well as in utilising the assessment findings to influence policies and It can be strategic and effective to develop training manuals programmes. for non-state justice actors that reflect their local values (e.g. religious norms) while identifying legal and human The experience from a broad range of countries such as rights standards.  Such trainings can help develop their Indonesia, Sri Lanka, the Maldives, Vietnam, Mongolia, legal knowledge in culturally sensitive ways and reduce Cambodia, Timor Leste, the Philippines, India, and Pakistan discrimination and arbitrary decision-making as a result.  provided a rich basis for discussion and learning on the For instance, discussing human rights issues through the challenges and opportunities encountered in designing application of verses of the Qur’an, other religious texts, and conducting the assessment as well as analyzing and local folklore, or particular traditions can lead to greater disseminating findings and building partnerships. The understanding and acceptance of human rights standards similarities and differences between the assessments and legal norms among non-state justice actors. were highlighted and a open discussion was held on what worked and what would be done differently by practitioners to achieve better results. Roles of government – Duty to Engage with the NSJS? The consultation also benefited from the participation of various institutions and programmes such as National Under the human rights-based approach, the state has Legal Services Authority in India, the Supreme Court the duty to protect human rights and provide access and Civil Court of the Maldives, the Economic Social to justice for the claim-holders. The need and potential and Cultural Rights – Asia, TIFA Foundation Indonesia, scope for governments (both local and central) to engage the Alternative Law Groups, the Asia Foundation, Open with non-state justice will be circumscribed by specific Society Justice Initiative, World Bank Justice for the contexts. ‘Problematising’ the interface between the state Poor Programme Indonesia, International Council of and non-state justice systems then requires adequate Jurists, as well as several UNDP country offices in the research into the capacity and willingness of the state to region. Participants also provided valuable and concrete work towards the realisation of rights. recommendations which will contribute to a review and mapping of access to justice aasessments in the region supported by UNDP APRC. Roles of external partners – Do No Harm An understanding of the risks of a sudden or large infusion of donor funding into community-based justice systems 3 EXECUTIVE SUMMARY Key Points on Conducting A2J assessment process should find ways of partnering with the media, such as inviting journalists to take part in Assessments the assessment, holding press conferences, developing • Participatory action research is a way to empower documentaries, hosting photo exhibitions, etc. people in the process of conducting an assessment – the assessment itself can be a political process to initiate • If it is not possible to conduct an access to justice assessment, it may be useful to incorporate access change. to justice elements into other ongoing assessments/ • The assessment can strengthen ownership of national surveys. partners – government and civil society -in the data collection process and contribute to national data • In data analysis, be aware of and avoid analysis deadlock and ‘paralysis out of too much analysis’. collection effort. National ownership and strong political will to carry forward the assessments and • Monitor the impact of access to justice assessments uphold the findings are critical, if we want the findings – what happens after the assessment and how it to influence national policy. At the same time, it is influences policies and programming. In particular, important to ensure that other local stakeholders – document whether and how the assessment translates including customary authorities – also participate in the into a process of strengthening access to justice for the assessment to ensure buy-in. beneficiaries (i.e. obtaining remedies for grievances). •A significant investment of time and resources is • Assessments are expensive and time consuming and necessary to apply a human rights-based approach in it would be beneficial to ensure donor coordination the assessment and to properly conduct participatory in conducting assessments to avoid duplication and consultations. This is particularly relevant when ‘assessment fatigue’. assessments seek to build local capacities and skills as part of the assessment process. • Be sure to document processes in conducting the assessment including partnership building and • Note that translation can provide many challenges ensuring government buy-in, so as to generate useful especially in translating such complex concepts such lessons learned for other countries. as “justice” and precautions and extra efforts need to be made to ensure appropriate translation. • Ensure that best practices and lessons learned are shared of what works and also of what does not work in • Explore alternative means of collecting information such conducting access to justice assessments. as the use of paralegals to strengthen participation in projects and promote dialogue within the community Some recommendations that emerged from the members. consultation include: • Choose carefully an appropriate time to initiate for • Set realistic objectives that are commensurate with an A2J assessment. In times of conflict or transitional available resources. periods, access to justice assessment can touch on very sensitive issues, and may not be condusive to • Establish and revise objectives based on people’s priorities as identified by the civil society, government peace building. Furthermore, there are additional risks or public survey, feasibility upon the given time-frame involved in terms of safety of the teams and suspicions and resources. It is useful to think in terms why the regarding the motives behind the assessments. assessment is being conducted and for whom. • Discern and assess expected benefits as well as potential • Maximize government partnership to minimize risks risks of using local data collectors to deal with sensitive and negative consequences; government endorsement information (especially in conflict or post-conflict is critical to ensuring the utilisation of the assessment situations) . results. It is useful to identify and collaborate with a • Sometimes the best results of the assessment can be ‘champion’ within the government who can oversee unanticipated ones. and support the implementation and utilisation of the assessment. • Explorecreative and innovative tools to enrich the assessment process, from the data collection stage (e.g. • Local participation and capacity building should the use of PDAs and storytelling format for questionnaires) key and guiding principle in any A2J assessment. to the dissemination of findings (e.g. through Assessments should help to build local capacities documentaries and street theatre performances). through their processes. • Media can be a powerful tool to publicize results of • Select a good translator for a successful involvement of the assessment and to encourage positive action the community in the assessment process. on recommendations from the assessment. The 4 EXECUTIVE SUMMARY • Team composition should consider how the findings of the assessment can be disseminated. For instance, journalists and documentary filmmakers can be invited in addition to social scientists and legal experts. • Focus more on the quality rather than the quantity of the research sample. Lastly, recommendations included suggestions to move away from developing a toolkit or specific guidelines (since it would be difficult to develop universal approaches given diverse local contexts), and instead develop a review and analysis report that highlights the implications of different choices employed in different assessments. Such publication could include short case studies written by those practitioners who conducted different assessments. The case studies could provide a rich and contextual discussion of key issues such as how to define objectives, ensure ownership, develop appropriate targets, tailor to the local context, analyse pros and cons of particular approaches, and engage in partnership building. 5 EXECUTIVE SUMMARY  PART I: Engaging with Non-State Justice Systems (NSJS) Introduction prey, we find ‘informal’ systems and formal systems often use or reject each other’s characteristics to serve specific purposes. The following discussions were informed by presentations by: In spite of claims made by promoters and defenders, Marc Galanter, Professor of Law Emeritus, none of the terms – formal, informal, state and non-state University of Wisconsin – can be referred to as a homogenous ‘good thing’. There is no formulaic loyalty that can be drawn to any of these Vijay Nagaraj, Research Director, International terms. We should be sceptical of generic claims of moral Council on Human Rights Policy superiority and judge each scheme meticulously based Erica Harper, Senior Rule of Law Officer, on its particulars. International Development Law Organisation Issues of ‘injustice’ will be more effectively addressed by moving from a frame focused on the dispute, to look at the dynamics of the situation in a wider frame. For There is a notion that law is made by the state, legislators instance, when the Supreme Court of India undertook the and judges and that this rule of law permeates society and case to free bonded labourers twenty years ago, the court regulates social behaviour. Therefore, it is assumed, society successfully declared the cessation of such practices. But reflects the great pyramid of legal order. Yet, as we go 20 years later, practices have not changed significantly, through life we discover it is not exactly that way. because the Court did not understand the complex dynamics and underlying causes of bonded labour and ‘Pluralism’, ‘Non-State’, ‘Informalism’: each of these terms the court’s ruling provided no real incentive to change. represents a departure from regulated, pyramid-like legal Most workers today still have no claim and no means to order, and suggests a counter-utopia, characterised by a claim their rights. In other words, on the books, the law lateral exchange rather than hierarchical authority. was inspiring; but on the ground, it had little effect. “ However, the term ‘informalism’ is a very elusive concept: When a tribunal labels something ‘informal’ what exactly does it mean? It can mean that decisions made are non- binding, or that procedures depart from those of a state If conversations about human rights in plural established court system. If the formal meets at a specified legalities are restricted to binaries, (‘culture’ place, during a specified hour, by people who wear versus human rights, ‘traditional versus distinct clothing, and render decisions based on specified modern’) then real ways of protecting rights on ” rules, is the absence of any one of these informality? the ground becomes obscured by terminologies and apparent competing interests. Legal pluralism often presents a confused landscape where we must remember that not everything is as it is labelled. Like animals disguised to fool predators and 6 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) Modifying social norms and behaviours involves more Development agencies generally seek to apply general than simply a change in legislation or policy. We should principles and standard frameworks to their responses. be alert to identify the underlying conditions and provide However, when working in the absence of such standards, strategic and holistic assistance that can address injustice we are required to go beyond wholesale approaches and on the ground. to take on more ‘messy’ approaches which require political commitment and a wholly different vision. “ Human Rights and Non-State Justice Systems: ‘Recognising the particular, based on the universal’ There is no formulaic loyalty that can be drawn to any of these terms. We should be sceptical of ” When examining non-state justice systems and their role, generic claims of moral superiority and judge terminology is not just a question of semantics. The terms each scheme meticulously on its particulars. are highly political, speaking to the users and the power players. Where human rights principles and values are threatened, it becomes important to reflect on how legal reform can Engagement with Non-State Justice safeguard principles, while at the same time making sure Systems: ‘Enhancing legal empowerment that it does not advance certain narrow versions of what through engagement with non-state is ‘legal’. There is a strong tendency to institutionalise justice systems’ the asymmetries of custom and law. If conversations about human rights in plural legalities are restricted to For those seeking to engage with non-state justice binaries (e.g. ‘culture’ versus human rights, ‘traditional systems, there is a common expectation to enhance the versus modern’), then real ways of protecting rights on strengths and mitigate the weaknesses of non-state justice the ground becomes obscured by terminologies and systems. This has led to a ‘fix it’ approach where solutions apparent competing interests. are applied to specific weaknesses within non-state justice systems. These may include more representative dispute To overcome such black-and-white approaches, it is resolution, codification of customary rules, establishment necessary to recognise the debate as a political issue of jurisdictional limitations, specific practices proscribed – despite it often being posed as an issue of contested by legislation, among others. ‘cultures’. The power of law lies in making the weak powerful and thus shaping social realities. For example, However, ‘fix it’ solutions often simply challenge vested indigenous peoples’ claims are often considered interests, provide few returns and present no better acceptable, so long as they are framed as a human rights alternatives. Limiting the jurisdiction of non-state justice issue. They often become less amenable when framed in systems in certain instances (e.g. violent crime, rape, terms of ‘self-determination’. murder, etc.) can create a vacuum of remedy in these instances if the formal system is unable, unwilling or International human rights law can be used to legitimise not welcomed to respond. Similarly, the act of codifying certain claims to civil, political, social, economic and customary practices to ensure predictability of results can cultural rights; however, when referencing international risk locking communities into narrow, static interpretations human rights law, it must be remembered that the of certain norms, while undermining the positive aspects results are a negotiated compromise between states. This of the non-state justice, namely flexibility and intuitive is not to say that human rights standards and laws are decision making. not relevant, but it becomes critically relevant to ensure that justice programming takes its direction from the There is a movement towards approaches that seek to struggles and principles of human rights, rather than the expand choice and place power in the hands of disputants results of negotiations between states. Justice should be themselves, as changes to customary norms driven by remembered as an enduring political negotiation, one in bottom-up or competitive forces are more likely to be which supporters use and evoke rights not just as legality, sustainable. Justice programmers should consider instead but as political legitimacy. empowering non-state justice system users to make choices and expand their freedoms in accessing and When we look at legal empowerment of the poor, we participating in justice services. By providing more options must ask, who are we talking about? Are the poor easily as to where individuals can resolve their disputes, often identified? How do we ‘unpack’ poverty itself? Are we trying incentivized through better protections, non-state justice to save those who are already victims of the law, through systems are capable of reforming themselves to maintain ‘more law’? What is the rationale behind our intervention? legitimacy based on the expectations of the community. 7 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) Encouraging competitive forces can include enhancing exclusively controlled by political parties which used the access to the formal justice system through court reform nominations as a means of seeking political legitimacy. procedures, and expanding access through mobile courts and legal aid. Alternative sources of justice can include After 7 years of civil war, the 2000 peace accord in Burundi NGO-led mediation and community-based paralegals. provided new opportunities for the “rehabilitation” of the “ Bashingantahe, and UNDP financed a nation-wide programme to identify the “real” Bashingantahe. However, the process became increasingly politicised, and due to There is a movement towards approaches inadequate participation and consultation with local that seek to expand choice and place power actors in the programme, the initiative ended up in the hands of disputants themselves… reinforcing the dominance of urban elites within the Justice programmers should consider instead Bashingantahe. empowering non-state justice system users to ” make choices and expand their freedoms in After democratic elections held in 2005, the newly elected accessing and participating in justice services. Hutu government decided to exclude the Bashingantahe from the formal judicial system again, and created democratically elected hill councils to work specifically on mediation, arbitration and conciliation in the local entity. Most significantly, change makers can be the users Unlike the Bashingantahe, the hill councils had women themselves. They can push for changes in their leaders elected to their boards and spoke a distinctly ‘alternative and among themselves. This should be recognised and dispute resolution (ADR)-oriented’ language, which was incorporated into any justice programming. perceived to be a very ‘Western concept’ by the locals. “ “Doing Harm” – Risk Awareness Research has shown that the interference in local dynamics was so disconnected from The following discussions were informed by cultural perspectives and on-the-ground ” presentations by: realities that it has almost completely Dominik Kollhagen, Institute of Development discredited traditional authorities. Policy and Management, University of Antwerp, Belgium. The National Institutionalization of a Local Justice System: A failed experience from Burundi. Recent research has shown that the interference in local Meneka Guruswamy, Attorney, Supreme Court of dynamics was so disconnected from cultural perspectives India. Accessing Injustice: Gram Nyayalayas/Village and on-the-ground realities that it has almost completely Courts in India. discredited traditional authorities. Further, frequent changes to the formal legal system have discredited state systems, as there is confusion as to which legal system is The Bashingantahe, Burundi – recognised and where access to remedy is guaranteed. Delegitimising Local Actors There has been no improvement to citizen’s ability to access justice in Burundi, and there is even an indication In Burundi, the Bashingantahe, a ‘council of wise men’, that access has decreased as a result of heightened once held a central role as independent councils capable interference. of resolving minor disputes and claims in the community. Major crimes were deliberated by village Chiefs and/or the Proper participation and consultation with the users of Mwami (king). Under the colonial period, the Napoleonic/ the Bashingantahe councils, and more detailed research Belgian/Congolese legal system legalised apartheid. into the nature of inter-ethnic relations could have Many statutory laws were only available in French and provided justice programmes with better insight as to customary systems, such as the Bashingantahe, were not appropriate responses to the divisions between the non- recognized. However most people continued to use the state and state justice systems. Gradual reforms based customary councils. on consultation would have been more sustainable; and the involvement of justice ‘users’ could have prevented In 1987 the Bashingantahe were integrated into the official elite capture and deligitimisation of justice suppliers and legal system. The nomination procedures were almost avoided bringing justice actors discredit. 8 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) Gram Nyayalayas, India – Poor Justice for Poor People? “ The creation of a fast-track system that takes shortcuts with procedural rights in cases where the poor are litigants, whilst regular ” The Gram Nyayalayas Act of 2008 provides for establish- courts maintain procedural rights for those ment of nearly 5067 village courts across India. The Act who can afford it, creates unequal justice. purports to provide access to justice to the citizens and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities. A key purpose of the Act is to reduce court backlogs. Discussion The Act declares that Gram Nyayalayas will be the lowest • In seeking to improve access to justice, it must be court of subordinate judiciary in a State, and shall exist asked what is behind the decision to ‘unburden’ the in addition to the regular civil and criminal courts. At the courts in this matter? In favour of whom? Even judges same time, in order to speed up the case disposal, the Act at Gram Nyayalayas are generally less well trained. We has removed some basic procedural rights in the judicial need to look at social disempowerment from a wider system, such as the right to appeal3, the right against self- perspective. Would fettering the right of the State to incrimination, and rights to legal aid and legal counsel. appeal actually have more impact on reducing the burden on courts? The jurisdiction of the Gram Nyayalayas covers certain • We need to consider our motives – why are we bringing crimes (such as theft, concealment, disposal and receiving about change? There is a tendency to urbanise the way of stolen property, and insult with intent to provoke a we express concerns and the remedies we promote. breach of the peace) and includes other offenses which Results achieved for urban populations cannot give less, are not punishable by death or imprisonment for a term to a lesser quality, while reinforcing hierarchical control. exceeding two years. It should not become UNDP policy to blindly promote the ‘urban’– and yet, often international agencies It is also tasked with adjudicating disputes relating to work with urbanised NGOs and hardly ever with social social welfare legislation under the Payment of Wages movements. Act, 1936, the Minimum Wages Act, 1948, the Protection • Politicisation of the Gram Nyayalayas is significant. of Civil Rights Act, 1955, the Bonded Labour System They are better imagined as little parliaments, rather (Abolition) Act, 1976, the Equal Remuneration Act, 1976 than little courts. They are thoroughly political. If we and the Protection of Women from Domestic Violence pretend they are sources of justice like courts, we are Act, 2005. disillusioning ourselves. Most social welfare entitlements and claims based on them affect people living in poverty. The creation of such a Gender Issues in Engaging with Non- fast-track system has resulted in unequal access to justice State Justice Systems by doing away with procedural rights in cases where poor people are the litigants, whilst those with resources can continue to access regular courts with all the procedural The following discussion was informed by rights. presentations by: In effect, the Gram Nyayalayas has combined the Hamid Afridi, National Project Manager, GJTMA negatives of the formal system with inherent weaknesses Project. Increasing Gender Justice through non- of the non-state justice system: results are binding, state means in Pakistan: The Gender Justice through adversarial, and non-restorative, while there is no appeal, Musalihat Anjuman Project. legal representation and support for the poor. The result is ‘rough justice’, considered to be ‘good enough’ for poor Tamara Relis, Assistant Professor, Touro Law people: poor justice for the poor. School in New York and Research Fellow, London School of Economics CEDAW Permeation in Mahila Panchayats and Nari Adalats. Discussant: Usha Ramanathan, Independent Law Researcher. 3 Gram Nyayalayas Act, 2008, S. 19. States: “No appeal shall lie where an accused person has pleaded guilty and has been convicted.” 9 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) Gender Justice in Pakistan courts’, the nari adalat and mahila panchayats, lower formal courts, and court-linked mediations known as lok The Gender Justice through Musalihat Anjuman Project in adalats, involved four hundred semi-structured in-depth Pakistan has made a number of successes in increasing interviews and questionnaires to gather information access to justice for women by establishing community- from victims, accused, family members, lawyers, judges, based Alternative Dispute Resolution (ADR) mechanisms. arbitrators and mediators in 200 cases. Some of the critical challenges faced in accessing justice The in-depth study of the actors and users of the in Pakistan includes: high levels of poverty and low panchayats and nari adalats, which focus on serving poor levels of literacy, outdated colonial legal frameworks, and marginalised populations in slum-like resettlement growing populations and meagre resources leading to colonies, found a high level of understanding and an over-burdened formal justice system, and very weak implementation of international human rights principles enforcement of decisions. For women, additional social, and norms, particularly those defined by CEDAW, among economic and cultural barriers may further prevent them decision makers when dealing with cases of serious from accessing justice. violence against women. In comparison, such principles, particularly those of equality and autonomy, rarely The Musalihat Anjuman (conciliatory bodies) at the featured in the decision making processes at formal, lower grass roots level (Ward/Union Council level) provide for courts or lok adalats. the amicable resolution of disputes through mediation, arbitration, or conciliation. The courts frequently refer Generally, lawyer advocates and lower court judges cases for resolution to the Musalihat Anjuman. processing cases involving violence against women in lok adalat proceedings did not feel that international human Typically, cases at the Musalihat Anjuman include issues of rights principles, including those enshrined in CEDAW, inheritance, domestic violence, forced marriage and other were pertinent to their cases. Thus neither the language illegal cultural practices, human trafficking, child abuse, nor the principles of international human rights such as and property disputes. equality or autonomy were utilised in case processing. Decision makers referred instead to mainly local customs Critical success factors: and traditions as reason for verdict. • The Musalihat Anjuman mediates disputes based on standards that draw from various sources such as the The study proposed three contributing factors for Quran and other Islamic scriptures, the Constitution discrepancy in the application of human rights norms in of the Islamic Republic of Pakistan, existing cultural the two settings: practices, as well as local government legislation. • As there is no mandatory legal education for those • The Musalihat Anjuman recognizes strong achievements who completed their legal training before CEDAW was for its service providers and provides incentives and ratified, those justice professionals may not be aware of rewards to them for cases resolved according to best such new international legal standards. international practice. • Civil society organisations, especially those who have • Through a cost sharing arrangement with federal received regular training in international human rights and provincial governments, Musalihat Anjuman are laws and principles by various international agencies established in 1,063 Union Councils, with 992 (93%) and external partners are more knowledgeable and women members. Members are persons of integrity apply that knowledge to their decisions. and good judgment who are respected in their • These female, non-lawyers, who are the adjudicators communities. in the nari adalat and mahila panchayat are better able to appreciate multiple modes of disempowerment and empathise with the victims of injustice. This disposes Training on the UN Convention on the them to greater sensitivity to a rights-based approach Elimination of All Forms of Discrimination to decision making. against Women (CEDAW) influences decisions among Mahila Panchayats and Nari Adalats ‘Holistic Approach’ Detailed studies of non-state justice systems, their actors The Mahila Panchayats and Nari Adalats were also found and users, alongside comparable studies on formal or to provide ‘holistic case processing’ not available through state systems, reveal insights and information as to how formalised courts also dealing with cases of violence certain interventions can affect those seeking justice. against women. Members of the women’s courts provide numerous follow up visits to former sites of abuse to A study conducted across non-state, NGO-based ‘women’s ensure that their judgments and signed agreements 10 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) “ The data supports evidence that grassroots compliance with legal, international and other norms requires additional factors beyond the norms per se. These include local systems of legitimacy and sanctions • be done in 50 years, we should not try to do it in a quick five years and risk deligitimising or making ‘foreign’ the genuine argument for women’s rights. Human right standards are important, but they can mean something different locally. For example, ‘untouchables’ ” in India have for generations been told that they are not which can have more influence on to be touched. A fundamental principle of human rights compliance than state sanctioned decrees. is the notion of ‘bodily integrity’ that no one, not even the state, may violate. Suddenly, untouchability is a key to human rights! are being followed. These visits to victims, accused, and • The Gender Justice through Musalihat Anjuman Project family members are considered by the community to be scores advances in women’s rights through a gradual critical to the successes of the system in stopping violence process, in which they allow for the local customs and against women. As community members themselves, the local traditions to take root in the new system and be panchayat members were able to additionally use social accepted, while encouraging and endorsing positive pressure and public shaming to motivate perpetrators of outcomes for women. violence against women to acquiesce to their judgments. The non-state justice systems were often enlisted by Indigenous Peoples and Non-State poorer victims of violence as a means of obtaining Justice Systems compromise agreements with their abusers in order to peacefully return to, or remain in, their places of abuse. As poor, disempowered women, most likely to be living with The following discussion was informed by her spouse’s family, an adversarial court driven process presentations by: against one individual may jeopardise her security at home. Cognisant of this, women’s courts often first seek Naomi Johnstone, the Research Council of the to educate, apply peer pressure, or establish support Chief Judge’s Chambers at the Waitangi Tribunal. networks, rather than seeking criminal convictions. Melding Indigenous Methods and Mediation In Melanesia: Lessons from a customary justice intervention in Bougainville. Drawing Evidence-Based Conclusions Sopheap Yin, Programme Advisor for Cambodian The data supports evidence that grassroots compliance Indigenous Youth Associations. Customary Practices with legal, international and other norms requires of Indigenous Peoples in Northeast Cambodia: additional factors beyond the norms per se. These include Working with Peace Tables and documenting local systems of legitimacy and sanctions which can have customary practices. more influence on compliance than state sanctioned decrees. Discussant: Chandra Roy, Regional Indigenous Peoples’ Programme at UNDP Asia-Pacific Regional Centre. Discussion • We need to examine what actors in formal legal There is a need for creative approaches when considering systems imagine are the advantages of non-state legal pluralism, customary law and indigenous peoples. justice systems. This may include more flexibility and Multiple, layered identities and a traditional, yet dynamic less formality, however attempts by formal justice culture make generalisations difficult when talking about systems to ‘informalise’, without acquiring at the same indigenous peoples and legal pluralism. time the cultural understanding of non-state justice actors, can result in informality informed by continued Indigenous peoples are not statically bound in their bias or prejudice. For example, informally dealing with traditional roles and nor does change limit their cases on women’s rights in the formal system, without ‘indigenousness’. Instead, it is an affirmation of their ability the required empathy for victims may not improve the to adapt and accommodate as they alone deem fit. situation of women. • Human rights laws and standards are used by women’s There is a tension between the right to self-determination groups to advocate for rights. But to try and change and the duty to conform to international human rights customs and practices through a top-down system norms, if self-determination is understood to mean would be dangerous. We must remember, if it cannot autonomy and exemption from compliance with 11 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) international norms. It is important to overcome this Nevertheless, there is some potential for an external tension not by denying self-determination, but by intervention to reform non-state justice systems. The focusing on what changes are needed in traditional findings of the research point to the development of normative systems and values in order to bring about an internal dialogue within the community, facilitated consistency with universal human rights norms. by engaging marginalized groups (such as women) in decision-making and thus challenging the dominant group’s monopoly over the interpretations and Gender Justice in Bougainville applications of customary law. However, tackling power asymmetries and empowering the disempowered is a In post-conflict Bougainville, Papua New Guinea, the long term process that requires champions within the Peace Foundation Melanesia, a mainland-based NGO, community who can give voice to it and define its struggle. worked to increase dispute resolution skills among customary leaders, women and youth in a participatory way. Customary Law in Cambodia A study conducted on Peace Foundation Melanesia’s The UNDP Access to Justice initiative in Cambodia training and methodology focused on topics including recognised the particular challenges facing the indigenous gender roles, mediation, and restorative justice techniques. people and sought to address them by strengthening the The objective of the research was to understand the capacity of the traditional authorities, raising awareness impact of this training for justice seekers, with a particular of government and political stakeholders to the situation focus on the experience of women and cases involving of the indigenous peoples, providing legal representation gender-based violence. and translation as required, and through experimentation with ‘peace tables’ – discussions involving customary Peace Foundation Melanesia’s training had increased the leaders and local and national government officials. skills of many of the chiefs and mediators engaged in dispute resolution, particularly by providing more These ‘peace table’ discussions shed light on challenges opportunities for participation during the dispute faced by indigenous peoples in Cambodia in accessing resolution process. As a result, the satisfaction levels of justice, namely: a lack of legal information in rural users in relation to process and outcome were higher communities; exclusion from benefits of development when the chief or mediator had received training. initiatives; exclusion from formal power structures; lack of access to public services; land and natural resource The Peace Foundation Melanesia training had largely insecurity; lack of official recognition of traditional focused on procedural issues, and dealt minimally with authorities and customary law; and lack of legal strengthening human rights. However, by directing representation and translation. They also acted as a mediation skill development training towards women conflict resolution mechanism, providing a platform and youth, research showed that women could be for concerns to be voiced and solutions to be reached empowered to offer alternative interpretations and through discussion. solutions to serious issues facing women and youth, such as domestic violence and rape. Cambodia’s Land Law (August 2001) defines indigenous communities as ‘a group of people that resides in the Female mediators were also found to deal with territory of the Kingdom of Cambodia whose members gender-based violence in different ways: changing manifest ethnic, social, cultural and economic unity and the interpretation and application of legal norms and who practice a traditional lifestyle, and who cultivate the processes, while not deligitimising the non-state justice lands in their possession according to customary rules of system with what is seen as ‘radical’ or ‘incompatible’ values collective use’. Further, the law stipulates exactly who may at the expense of values of harmony in the community. be described as ‘indigenous’. Female mediators were more likely to consider ‘alternate pathways’ to justice, and were, in some cases, able to The drafting of the national Land Law presented an link victims to NGOs that provide specialised services to opportunity to discuss and advocate for recognition of women in abusive situations. the rights of indigenous people to own land collectively. However, tying the definition of indigenous peoples External training however was unable to effect change so closely to land and land ownership raised concerns on power asymmetries reinforced through decisions of inequality between indigenous people and lowland made by many chiefs. Despite mediation training, some individuals. Indigenous peoples are less able to sell land disputants felt they were under significant pressure to parcels, whereas non-indigenous, lowland people can agree to outcomes that reflected notions of fairness readily enforce purchase contracts with a title from the within the community. cadastre office. 12 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) “ Certain ‘solutions’ can and will be contested within communities – there is human agency. To assume that human rights is an • Certain ‘solutions’ can and will be contested within communities – there is human agency. To assume that human rights is an abstraction, that it is not based on ” abstraction, that it is not based on the struggle the struggle of individuals and agency, is a mistake. of individuals and agency, is a mistake. Indigenous Peoples: • The definition of ‘indigenous people’ as recognised by the state will have a bearing on the kind of system the Given the spectrum of ministries and agencies with a individual can access. role to play in the empowerment of indigenous peoples, • Fundamentally, choice is at stake here too. Does ‘free the UNDP project partnered with the Ministry of Justice, and prior informed consent’ apply to the choice of Ministry of Interior, and local NGOs. indigenous peoples between state and non-state systems? Should indigenous peoples be able to The project noted the need for awareness raising choose whether they participate in communal land among the government, other stakeholders, as well as management, or can they sell individual parcels? the indigenous communities. In doing so, the project supported the documentation of customary procedures and practices. Rather than codifying the laws, the research Non-State Justice Systems in Contexts of highlighted the values and rationale that drive some of Socialist Legalities the decision-making on the ground. The research and the subsequent publications also highlighted the strengths of storytelling methods as well as fair, full and equal The following discussion was informed by participation as means of mediating conflicts. It also noted presentations by: the shifts in customary norms and rulings – for example, the cessation of the use of the death penalty. This reflects Tong Dam Tuan, Social Policy Ecology Research the acceptance of state abolition of the death penalty by Institute Programme in Viet Nam traditional leaders. Laurent Pouget, Legal Program Specialist, UNDP Lao PDR Discussion Gender: •When we talk about ‘restorative justice’ we must ask: ‘Rethinking the Role of Customary ’Restorative’ to whom? To the individual pressured into Law in Dispute Resolution at Highland remedy that serves community harmony? Communities in Viet Nam: Case studies of •Further to this, we must ask what constitutes a ‘better the H’Mong and Ede minorities’ outcome’ for women seeking justice as victims of violence. In majority patriarchal systems, women Much of the research conducted in Viet Nam on non- occupy positions of social and economic dependence state, or customary systems of ‘ethnic minorities’4, is on husbands or their patrilineal family. Breaking that anthropological. UNDP is supporting the Social Policy connection may leave her without the recognition of Ecology Research Institute Programme in Viet Nam to the community and the protection of an income. Yet study justice systems of ethnic minorities and examine exonerating perpetrators of crime in the name of ‘social the potential role of customary justice in the development harmony’ is an untenable solution. of ethnic communities. In particular, the research sought •We must be wary of ‘choicelessness’ masquerading as possibilities of linking customary law with social and ‘choice’. Women who ‘choose’ to forego their individual political transformation in three key areas: livelihood human rights to restore balance to the community security, land tenure and natural resource management, may in fact do so because they have no other choice. and community governance. Choosing between devastating economic and social exclusion or staying in a relationship with an abusive Swift changes in the Vietnamese society over last 20 years partner is not much of a choice. may have had a positive influence towards rethinking the •Looking at customary practices through a binary prism role of customary practices and laws in local governance of human rights and culture is unhelpful. We should not and promoting access to justice for ethnic minorities. presume that human rights principles do not fit into an internal critique. This is demonstrated in narratives of 4 In Viet Nam the term ‘ethnic minorities’ is used to refer to people who would be classified as ‘indigenous’ in other countries. In total there are struggles against gender based violence. considered to be 54 ethnic groups, of which the Kinh or Viet represent more than 80% of the total population. 13 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) A brief overview of this historical shift is as follows: • • Before 1945: French scholars studied minority groups from anthropological perspectives 1954–1975: War of independence and the American “ Community based natural resource management through clan systems is still strong in practice, but without formal recognition of their potential role in ensuring ” war. sustainable development, there is a risk that • 1975–1990: Viet Nam launched the ethnic minority ethnic minorities will be forced off their land. development policy (which was limited by a lack of knowledge base). • 1990s: Ethnic customary studies – studies of customary practices and procedures, yet no positive impact on resource management is challenged by forest areas being ethnic minority policy in general. re-classified as ‘watershed-forest’ by the watershed forest • Early 2000: Demonstrations and riots in the Central management board. Much forest area is being used for Highland Hill Tribes protesting land encroachment national development interests and private companies for coffee plantations by lowland Vietnamese. The Hill seeking to extract resources or develop plantations. Tribes also protested the government’s restriction of their religious practices. Community-based natural resource management through • At present, customary laws and legal systems are clan systems is still strong in practice, but without formal acknowledged by local officials but regulatory obstacles recognition of their potential role in ensuring sustainable remain. development, there is a risk that ethnic minorities will be forced off their land. The Vietnamese Constitution recognises the equality among the country’s ethnic groups. At official levels, Initial recommendations from the study (forthcoming) are: the equality of ethnic minorities is protected by the • Uphold Constitutional rights and principles (recognition department of Minorities within the National Assembly. towards customary law) The Ministry of Mountains and Ethnicity is headed by a • Continue to raise the awareness of policy makers to role member of the Hmong community. However, this does of customary systems in contributing to community not ensure that the laws are actually put into practice. and national development • Promote traditional education and bilingual education The role of traditional elders and clan leaders in ethnic for ethnic minorities community governance remains significant. There • Extend research efforts to other ethnic minority groups are clearly stipulated guidelines as to who has the • Advocate for ethnic empowerment and legal responsibility for dispute resolution in which instances and empowerment at which levels. For example, among the Hmong people: • ‘Level 1 disputes’ refer to the more frequent, simple cases such as animals destroying crops and family borders, is ‘Mapping Customary Practices: UNDP usually self-regulated among families, with only a minor experience in Lao PDR’ role of elders and clan leaders. • ‘Level 2 disputes’ are complex cases pertaining to land Customary practices remain a crucial source of law border, land/asset division, land inheritance, etc. These for many people in Lao PDR, where social structure, issues are resolved at the clan, or inter-clan level and language and culture, including customary practices of are adjudicated by more influential clan leaders or ethnic groups5 are still flourishing. This is largely due to elders. ‘Level 3 disputes’ are taken to the new to hoa giai a very weak formal sector, a fact recognised by national (conciliation unit) or alternative dispute resolution authorities. However, there are currently no policies mechanism to resolve the irresolvable cases within and addressing the role and place of customary law in Lao PDR. between clans. The structure of the new ADR is diverse, depending on each village; however, it is proven that The UNDP Customary Law Project in Lao PDR forms part most effective when clan leaders and elders are of the programme for the implementation of the Legal involved. ‘Level 4 disputes’ are those beyond the Sector Master Plan and serves as complement to Access Hmong boundaries and those where the matter is one to Justice Survey led at the same time. of state law. Initial goals of the project were to enhance the knowledge Despite this clarity of practice, and the recognition of central authorities on customary practices, facilitate the that customary laws in principle may be recognised in practice of customary law where it serves the needs and civil dispute settlements, judges and judicial officials interviewed for the study revealed they are reluctant to take customary rules into consideration. Further, official 5 Lao PDR officially recognises 49 ‘ethnic groups’ like Viet Nam, of which recognition of ethnic minority autonomy in natural the majority, Lao Loum, represent between 60–65% of the population. 14 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) interests of people, and ensure compliance with general by the project, and the data initially provided by the Lao standards of Human Rights and gender equality principles. Front led to the selection of a few inappropriate districts in a few cases. The main areas of investigation covered by the survey were: reviewing and cataloguing of customary norms and The project relied heavily on the capacity of the ethnic practices with a focus on most relevant topics; people’s researchers to gather data and develop reports, through perception of customary law (including targeted / a Participatory Action Research methodology. Their actual disaggregated groups); and potential impact resulting capacity to do this to a level which would support analysis from a change in the context and environment of the was limited. community. Further, the project recognised that codification of The survey sought to cover five key areas: customary laws will negatively affect the flexibility of the 1. Cultural configurations – social organizations, religious systems. The intention of the Lao government vis a vis the beliefs and practices, leadership and decision making, findings of the study is not clear. There is a risk that the basic concepts related to customary law documented laws and customs will be defined as either 2. Civil issues – Family obligations and rights; marriage; ‘positive’ or ‘negative’ and certain practices and customs inheritance; community level rights and obligations; banned or used to further discriminatory stereotypes of land ownership and access to resources; contracts indigenous peoples. Lastly, the Lao Customary Justice 3. Criminal issues – Concept and definitions; proof- Project found that it was ‘too ambitious’ to define a national evidences; conflict resolution and adjudication; strategy on how to incorporate such a demanding and arbitrage; infraction against individuals; infraction complex process. against assets and reputation 4. Changes in customary law – Induced by market economy, policies, urbanization and transition toward Discussion formal justice system. 5. Perceptions of the customary law – By villagers, • It should be recognised that state dominance in the women, youth, poor, and users. conduct of customary justice studies may not be in the best interests of indigenous peoples. Indigenous Consultations were conducted successfully and all 49 peoples often have a strained relationship with the state ethnic groups were included in study results. However, owing to unresolved differences over their rights to a number of challenges plagued the survey, from self-determination. methodology to results, such as the following: • While there can be benefits to cataloging and • The protocol for lessons learned was not used by the formalising customary rules, there may be also project, subsequently, no reports have been presented inherent risks as to who actually benefits from such to the consultant concerning the lessons learned codification. Thus, cautions need to be exercised. As • Often also the planning has not been respected while in the Cambodian experience, the documentation of conducting the workshops customary practices can help raise awareness of the • Not enough feedback was provided on the process and potential contributions from the non-state systems methodology used for each workshop for community development without locking the • Low capacity of the ethnic researchers to develop communities into ‘the genius of the now’. “ reports prohibited a clear analysis of results Using Information Technology for It should be recognised that state dominance in the conduct of customary Non-State Justice Systems justice studies may not be in the best interests of indigenous peoples. Indigenous The following discussion was informed by a peoples have a strained relationship with presentation by: ” the state owing to unresolved differences over their rights to self-determination. Cindy Jeffers, Oral Wiki. Oral Wiki: A Phone Archive for recording case decisions in Informal Justice Systems In hindsight, the involvement of the Lao Front for National Construction members may have discouraged the participation of certain ethnic groups due to a history of mutual distrust between them and the state. A number The OralWiki uses mobile phone technology to support of ethnic groups did not attend the workshops arranged new ways of facilitating dispute resolution and sharing 15 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) information in rural communities, conflict-prone regions, do we engage?’, we need to ask ‘how do we improve the or among tribal groups distanced by geography. The experiences of justice users?’ OralWiki is a reporting tool that creates an audio archive of decisions made by tribal elders or other non-state By narrowing our focus to ‘engagement with non-state justice actors. justice systems’, we risk misunderstanding and indeed, missing too much of the problem. If we take ‘people’s The case study shown addressed the abunzi non-state disputes’ as the starting point, we are better able to focus justice system in Rwanda. Reconciliatory in its aim, the on function rather than form and bridge the academic/ abunzi justice system uses mediation and arbitration to practitioner divide. From here we move from legalistic resolve disputes. In the abunzi system, mediated decisions forms of justice – the laws, institutions, and structural are not documented. Interviews among the abunzi relationships – to focus on the qualitative function of revealed that they have to walk long distances in order to justice – fairness, effectiveness, legitimacy. “ discuss practices and procedures with their peers. The OralWiki enables the abunzi to call a recording service and describe the context of the case, the evidence By narrowing our focus to ‘engagement available, the parties’ positions, and the reasoning behind with non-state justice systems’ we risk the decision made. Other abunzi can call the service misunderstanding and indeed, missing too and listen to cases classified by category. By sharing much of the problem. If we take ‘people’s information, the abunzi decision makers can ensure disputes’ as the starting point, we are better ” consistency in mediated outcomes, and thus develop a able to focus on function rather than form ‘jurisprudence’. and bridge the academic/practitioner divide. Day 2 – October 5 2010 We have to recognise also that research should consider Designing Strategies inevitable variations from one location or social structure, to another. Differences in local specificity will include religion and ethnicity; urban and rural; the degree of The following discussion was informed by a heterogeneity; impact of conflict; extent of government presentation by: presence; and other historical, political and social factors. Deborah Isser, Senior Rule of Law Advisor, United The research process should also bridge the academic/ States Institute of Peace. Designing Engagement practitioner divide and involve both legal experts and Strategies: Lessons from Seven Countries. social scientists as a deeper, contextualised understanding of the issues and challenges will go beyond the procedural legal framework. As much as possible the communities themselves should be supported to develop the capacity Designing Engagement Strategies: Lessons to examine their own systems and use the evidence from Seven Countries base to advocate for change among district actors and national policy makers. Empirical data can de-politicise Lessons, findings and principles illustrated in this the discussion about customary law and prevent it from presentation were adapted from studies on how justice being co-opted and misused for power or political gain. reform efforts can engage customary justice systems in order promote justice and sustainable peace in • Research should focus on the actual experience of those Afghanistan, East Timor, Guatemala, Iraq, Liberia, seeking justice Mozambique and Southern Sudan. • Research should aim to understand justice and dispute resolution on a deeply contextual basis • Research should take into account the inevitable Research – Develop an Evidence Base for variations from one location to another Policy and Programming • Research should be a joint effort of policy makers/ practitioners and social scientists The value of empirical evidence in understanding non- • Research should not be seen as a one-time event, but state justice systems and designing relevant and useful a process for both informing policy and measuring strategies to engage with them is imperative. But often impact we begin with the wrong question. Instead of asking ‘how • Research can be used as a policy tool in a variety of ways 16 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) Adopt a Practical Problem Solving Approach We must be clear on what it is that we are trying to achieve. Have we properly identified the pertinent problem? Some see the existence of multiple systems as counter- productive to state building and incompatible with “ Justice reform strategies should be focused on promoting a constructive process of change, rather than imposing an end state. Engagement with non-state justice systems must address the social context. Many of the rights abrogating decisions and practices within customary systems serve ” human rights. The apparent solution to this dilemma an alternative social purpose. Practices such as bad in is often ‘replace or integrate’ customary systems within Afghanistan, a process whereby a family’s daughter is the formal justice system. This approach was applied to married to another family in order to repay a debt, or the the United Nations Transitional Administration in East identification of ‘witches’ through trials by ordeal in Liberia, Timor attempt to replace the customary systems with serve a social purpose. Abhorrent as these practices may a formalised system; ascertainment and harmonisation be, communities are economically and socially dependent efforts in Southern Sudan; international interventions to on one another, and alternative terms of exchange must train leaders to comply with human rights; and policies be found to protect and facilitate social order. in Liberia, Afghanistan, Guatemala and elsewhere aimed at limiting the jurisdiction of customary systems to minor matters. Promote an Inclusive Vision of Legal Pluralism In Liberia, the dual legal system was seen by the Local solutions are more likely to have sustained and international community as perpetuating discrimination, transformational effect. The international community and which prompted the UN to promote one system for all. NGOs should help to facilitate constructive spaces for Whereas the perception among Liberians who used concerned communities to come up with solutions and the non-state system was that it is this move that is to advocate those solutions to national policy makers. discriminatory, against their system and them. The right questions to ask in this context could be: ‘how can the An illustration of altering terms of exchange can be justice demand of the population be met so as to fill found in Liberia. Previously, swearing an oath had to be the current justice vacuum?’ and ‘how can the Liberian done by drinking poison to affirm the primacy of promise justice system be more inclusive of the values of all of the over person. Nowadays, the demonstration of the Liberian people?’ The answers to these questions would commitment to upholding the seriousness of the oath is open up consideration of a wider range of policy options done by swallowing a bit of dirt from the earth, which also and improvement in the delivery of justice. symbolically demonstrates a commitment to the land. Earlier described efforts of the Gram Nyayalayas For such changes in the terms of exchange we should established to address backlog of cases in India is another allow sufficient time for experimentation and pilot example of a poor effort to ‘problematise’ justice gaps. This activities undertaken with the concerned communities. leads to the fundamental question we must ask ourselves regularly, who gets to decide what the problem is? Support the good struggle Take an incremental approach calibrated to Practitioners seeking to engage with non-state justice current realities systems should look to critical insiders who contest given norms. An example of such critical insiders would Shifting the point of departure to ‘what is’, rather than be women mediators in Bougainville who challenge the ‘what should be’ grounds reform strategies in current and received wisdom that women seeking to escape abusive realistic contexts. Studies show that laws and policies relationships must necessarily be bound by the decisions banning certain practices or limiting the jurisdiction of of village chiefs. “ non-state justice systems do not consider the realities of people’s disputes. Support to demarcation of jurisdiction has often backfired if there is no viable alternative in place As much as possible the communities to provide remedy to legitimate grievance, reducing faith themselves should be supported to in the state and state institutions due to their limited develop the capacity to examine their capacities. This can lead to mob violence and vigilantism. own systems and use the evidence base ” to advocate for change among district actors and national policy makers. 17 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) Discussion Strengthening Informal Justice System through Guideline Development and • Adopting an incremental approach need not always Training: Case of UNDP collaboration with imply that a great deal of time is needed to bring Aceh Adat Council in Indonesia about changes. It may be possible to make use of media and technology to change people’s attitudes The case study from Aceh, Indonesia, examined linkages and perceptions relatively quickly. Young persons in a between customary (adat) actors and state institutions at community can often be counted upon to inculcate lower levels of governance. new norms and change traditional practices. • We need to consider the national – how do we connect The people of Aceh had suffered 30-year-long conflict the national and the district level activities? At the state and the 2004 tsunami, which together killed more than level there is a tendency to act on principles. States will 200,000 people and devastated the lives of another not, as a matter of principle, allow non-state justice million. In this context, UNDP Indonesia with the systems to deal with serious crimes. But at the local Indonesian National Development Planning Agency level there may well be opportunities for dealing with (BAPPENAS) conducted a comprehensive Access to such crimes without devaluing their seriousness. This Justice Assessment in Aceh in 2006–7, and found a means that state policy should not be dogmatic, and range of challenges that constrain the ability of formal in fact, should be informed by empirical evidence and and informal justice providers to handle grievances complemented by recognition of organic processes effectively. According to the assessment, a majority of of choice and change that overcome the apparent Acehnese preferred the adat (customary/informal) justice determinism of customary practices. mechanisms available in their communities for resolving • When should we problematise the state? The variations their disputes over the formal justice system. At the same of quality of service and reach of the state affect time, the adat justice system had various challenges, their degree of involvement with non-state justice such as: lack of knowledge and capacity of customary systems. The state is not the same at every level. Local (adat) justice leaders, absence of guidelines and common governments and local authorities may be better at standards, discrimination against women and other navigating non-state justice jurisdictions based on vulnerable groups, ambiguity of jurisdiction divisions community realities and needs than could a distant with the formal system, and insufficient accountability state located in a national capital. safeguards. Therefore, the assessment recommended • A research process dealing with the interface between engaging with the adat justice system in Aceh, so as to state and non-state justice systems is itself a part of the improve the quality of justice delivered to people in the dynamics of change because it necessarily opens up communities. spaces for dialogue and discussions about what to do about ‘injustice’. The contents of Indonesia’s national Out of these findings, UNDP Indonesia implemented access to justice strategy would have been different but “Adat (customary or informal) Justice Enhancement for the fact that it grew out of a large-scale assessment Component” as part of the Aceh Justice Project (2007–11) of people’s perceptions about injustice. in partnership with the Aceh Customary Council (MAA). The project developed and distributed the Informal Justice Guidelines, and trained thousands of informal justice Traditional Actors in New Councils practitioners on these guidelines and case management. MAA first produced a description of current adat practices and the normative framework governing adat6. Following The following discussion was informed by a extensive consultations with relevant stakeholders, the presentation by: MAA developed information which sets out agreed demarcation of jurisdiction, standards and procedures for Ah-Jung Lee, Acting Programme Manager, Human adat justice. The guidelines focus on substantive rather Rights, Legal and Justice Sector Reform Cluster, than procedural functions of the MAA. Democratic Governance Unit, UNDP Indonesia. Strengthening Informal Justice System through The general guidelines on adat justice cover the following Guideline Development and Training: Case of UNDP issues: collaboration with Aceh Adat Council in Indonesia. • Principles of Adat Justice • Legal Basis of Adat Justice • The Aceh Adat Justice Executive Institution • Types of Dispute and Resolution Procedures 6 The project did not work with sharia law specifically due to donor requests. 18 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) • Negotiating Techniques in Adat Justice, ethnic groups in this vastly plural nation plays a critical • Execution of Adat Justice Decisions role in strengthening access to justice, particularly of the • Referral Mechanisms from Adat to Formal Justice poor and marginalised, using mechanisms that they are • Women’s Participation in Adat Justice Reconciliation most familiar with. Processes These guidelines were disseminated through a training Lessons from the Aceh Justice Project: programme, which included sessions on gender and human rights through UNDP advocacy. A critical 1. Begin with a needs assessment of high quality. component of the programme’s success was the 2. Work with those who have a standing in legal involvement of the community police in the trainings. In institutions and the reputation and legitimacy to the post-conflict setting, MAA adat justice project thus promote non-state justice. helped to build partnerships and restore trust between 3. Creating an enabling environment through the local police and communities. appropriate legislation on powers of the police and non-state justice system actors is important. In the Given the socio-cultural and religious context of Aceh, case of Aceh, the MAA’s legitimacy and effectiveness adopting the human rights norms of gender equality was significantly enhanced by provincial legislation among adat leaders was first a challenge. However, addressing these issues. Partners must have, or be through UNDP engagement over the course of few willing to establish, a legal basis for their work. years, MAA staff came to recognize the important role 4. External partners cannot be the main drivers. In the of women in providing better justice for women in the case of Aceh, it was the MAA that led the process. adat system and thus increased their work on this issue, 5. Working in coordination with other projects and utilizing their networks and respected authorities within agencies to synchronize similar or mutually supportive Aceh. Empirical evidence gathered by the project showed programs is essential to ensuring the effective that women often thought themselves unsuitable for implementation of non-state justice programs. adat related work. As such, rather than simply demanding 6. In order to promote cooperation between state and women’s participation or setting quotas, confidence and non-state justice actors, it may be desirable to extend capacity building activities for women were adopted, and support to both sets of institutions, instead of only MAA implemented a dedicated programme to build the focusing on non-state justice systems. capacity of female elders in its latest stage. The MAA experience resulted in: Practices in the Interface of State and • Improved understanding of the appropriate division of Non-State Justice Systems jurisdiction between adat justice and the police. • Increased communication and coordination between adat leaders and community police in resolving Discussions were informed by presentations by the or closing cases that may have been reported and following: investigated simultaneously through both channels. • Improved means of resolving jurisdictional conflicts Devasish Roy, Chakma Raja and chief of the between village adat justice providers and community Chakma Circle and Advocate at the Supreme police through reporting. Courte of Bangladesh. State Recognition of • Overall improvement in case management, including Traditional Justice Systems. standardized documentation and filing practices that facilitate the correct implementation of jurisdictional Tiernan Mennon, then Senior Project Manager, divisions and coordinating procedures. Legal Empowerment of the Poor, Open Society • Recognition and acceptance by MAA and adat leaders Institute. The Role of Paralegals in Developing the of the importance of gender and human rights in Interface Between State and Non-State Justice. strengthening the adat justice system to make it fairer and more equitable. Raquel Yrigoyen Fajardo, International Institute • In relation to the local regulations, strengthening of the of Law and Justice. Participatory Consultations adat’s role in supporting and driving the empowerment for Constitutional Recognition of Non-State Justice of adat leaders in providing community-level justice. Systems in Timor Leste: Involving non-state actors in drafting procedures. For UNDP Indonesia, working to improve the informal justice systems is not to diminish the importance of the formal justice systems. Rather, it is based on the recognition that adat system, derived from local wisdom of the various 19 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) ‘Asserting Customary Law & Procedure in State, Quasi-State & Hybrid Justice Systems: “ Codification of customary laws surrenders self-determination. It risks freezing customs to ” The Case of the Chittagong Hill Tracts, the ‘genius of one generation’ and constrains Bangladesh’ the ability of customary law to evolve. The state recognition of the customary justice systems of indigenous people raises an important issue. Should the state assimilate customary laws and deprive them of their Conflict of Laws and Systems – Areas of distinctive identity or should the state acknowledge and challenge uphold the distinctiveness and validity of customary law? Moreover, this issue is important because under existing Land Surveys are contentious. The state’s proclivity to frameworks of legal pluralism, there can be asymmetry conduct cadastral surveys gives rise to distrust among in the standing accorded to different legal systems. the people in the Chittagong Hill Tracts who have an Politics often decides which system will prevail over understanding of common property resources that is at another. Furthermore, legal pluralism can lead to some odds with granting titles to individual owners. Perpetual questionable forms of forum shopping where the more requests for land surveys by the state are met with powerful parties to a dispute can pick a forum that will distrust, as land surveys are seen as alien concepts. There favour them. is a fundamental tension between the state approach to land and land ownership and customary commons. In the case of the Chittagong Hill Tracts in Bangladesh, there are three justice administration bodies, under the The state-preference for documentation of laws can Bangladesh Supreme Court. They are the District and be at odds with a typically oral history. Codification of Sessions Courts, which oversee major criminal offenses, customary laws surrenders self-determination. It risks commercial and civil disputes; the Courts of Chiefs freezing customs to the ‘genius of one generation’ and and Headmen, which adjudicate family law disputes, constrains the ability of customary law to evolve. customary resource disputes and minor criminal offenses; and the Chittagong Hill Tracts Land Disputes Resolution Areas of challenge for customary law, procedure and Commission, which oversees land disputes. justice administration include: • Gender and human rights sensitisation of Customary Chittagong Hill Tracts Key Characteristics: Law Practitioners; •State Courts and Courts of Chiefs and Headmen • Capacity-development of state justice policy-makers •State Courts barred from ‘tribal’ jurisdiction as courts of and practitioners; first instance • Documentation of customary laws; sans codification •Civil Administration retains ‘revisional’ and limited • Synergising administration of customary justice (and ‘appellate’ jurisdiction over ‘tribal’ courts resisting ‘harmonisation’ tendencies) •Civil Procedure Code inapplicable • Promoting non-adversarial modes of justice; •Lawyers have restricted access to Chittagong Hill Tracts • Dealing with ‘non-state’ and ‘non-traditional’ actors; and state and “tribal” courts • Adjusting asymmetries in legal pluralism (dealing with the state). According to the Chittagong Hill Tracts Land Disputes Resolution Commission Act, 2001, the Commission’s mandate/authority includes the following: Discussion • Provide decisions on land-related disputes brought before it in accordance with ‘laws, customs and systems • Positing the state as the ‘other’ and pitching it against prevailing in the CHT’; customary systems is undesirable in most cases, but • It has the authority to declare land grants illegal and to in contexts involving the self-autonomy of indigenous restore possession. peoples under ILO Conventions, is it necessary to • It is inclusive (headed by retired judge and including recognize that the state is in fact, the other? Indigenous Institutional Heads) • Should external development partners avoid the state • It considers and applies customary law. and approach the communities directly more often? • Procedures are simplified, and avoid complicated court Once there, they should maintain a level of openness – procedures (and legal practitioners). to not preach and provide, but engage and learn. • Will decide disputes expeditiously • We must be mindful that norms of customary law as • Its decisions have the status of a court of law and hence interpreted elite groups within the community will be will be supported by executive action by state biased and not necessarily accurate or authoritative. • Procedure-dependent (“due process”) system vs. custom- dependent dispute resolution 20 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) “ By working across the plural justice spectrum, paralegals begin from the perspective of ‘people’s disputes’ and can navigate both state and non- state systems to reach an appropriate remedy. Discussion • The issue of sustainability is key – programmes should consider ways to support paralegal structures ” independently of donor funds. Sharing lessons among Interventions can be more context-specific the expansive global network of paralegals would be and non-law solutions are often found. useful. • The idea of sovereignty of state has increasingly taken hold. Consequently it is the state that often creates paralegals and determines what their objectives ‘The Role of Paralegals in Developing the should be. Paralegals who are organically connected to Interface between State and Non-State their communities and who serve the needs of those Justice’ communities are more likely to be effective in delivering justice than those conforming to a state-centric notion Paralegals exist worldwide. They can have professional of what paralegals should be. State-created paralegals profiles, or be layperson volunteers. Community-based create yet another problem. They can be part of the paralegals require a variety of skills, including mediation, process by which the state can renege on its primary education, and organizing. They frequently work with obligation to have well-functioning justice institutions lawyers, but the degree to which paralegals are regulated and use the paralegals in processes that have been or even recognised by the formal system varies greatly. characterised as ‘band-aid’ or ‘bypass’ modes of justice dispensation. This can result in a form of ‘gruff justice’. The Open Society Institute’s work with community- • Paralegals may be more trusted among community based paralegals has identified a number of qualities and members than are lawyers. This can help bridge a state/ advantages that paralegals can bring to communities. For non-state divide. instance, paralegals can: • It is important not to ‘essentialise’ paralegals. They can be • Empower people to access and use the law to their people sent to ‘squelch’ legitimate claims, or they can be advantage; helpful, creative mobilisers of accountability and justice. • Work with people to help solve problems; The effective use of paralegals in conjunction with efforts • Provide practical solutions; to reform courts is imperative. • Be mobile and can support a more deep and broad • Where possible, the term ‘paralegal’ should be clearly reach among a community; defined with the concurrence of professional legal • Know their communities well; associations to avoid challenges over their legitimacy. • Demystify the law; • Above all we must remember that access to justice is • Be cost-effective; and a long-term goal to be pursued in a variety of ways – • Straddle plural justice systems. paralegals can be one amongst them. By working across the plural justice spectrum, paralegals begin from the perspective of ‘people’s disputes’ and can Participatory Consultations for navigate both state and non-state systems to reach an Constitutional Recognition of Non-State appropriate remedy. Interventions can be more context- Justice Systems in Timor-Leste: Involving specific and non-law solutions are often found. non-state actors in drafting procedures’ Paralegals who are capable of transferring cases between Why a process of consultation? systems can stimulate community interest and demands of justice system. On the other hand, they can also Processes of consultation in drafting laws on customary encourage reform based on empirical evidence gathered justice systems is necessary in order to ensure that the at the community level and advocate for incremental legislation responds to the reality of the country, the changes to improve the functioning of both systems. The needs and demands of the population. Participation is a advantages of this coming from paralegals is that they constitutional right in many countries, including Timor- generally have a detailed understanding of the socio- Leste. Further, consultation processes provide space economic and political contexts ‘on the ground’ and can for dialogue and consensus among justice actors, i.e. recommend appropriate action based on the realities of traditional authorities, women, justice operators, human people’s justice needs. rights organizations, NGOs, and others. A research and consultation process is also necessary for the following purposes: 21 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) • Clarify and understand the social demand for justice vis- The members would be lay judges elected by the à-vis the supply communities with competences for resolving minor • Clarify the history of the system – does it represent a civil cases and promote arrangements in semi-public colonial power? crimes, with judicial revision and control by the district • Empower the poor, women, indigenous peoples by courts. providing a space for their voices to be heard. • Create a platform for negotiation and identification of common values. Multiple State and Local Justice Hybrids in ‘Special Areas’ of Pakistan In Timor-Leste, UNDP supported a Consultation Process prior to the drafting of legislation. This process involved: • Field trips and interviews (October 2008); Discussions in this session were informed by a • Decentralised and sector consultation workshops; presentation by: • Sector consultation (women, justice actors, human rights organisations); and Osama Siddique, Department of Law and Policy, • National consultation. Lahore University of Management Sciences. Multiple State Systems and the Case for Non-State The consultations resulted in four main proposals related Justice Solutions in Pakistan. to local justice: 1. Recognition of customary mechanisms for conflict resolution as non-jurisdictional mechanisms. This includes the customary authorities’ capacity to There are two broad categories of approach prevailing negotiate mediate or decide on remedies to which in these discussions: the prescriptive (i.e. those based both parties voluntarily commit. These negotiations will on best practice, success stories and lessons) and the have legal effect before the courts, after agreements deconstructionists (i.e. context determines everything or decisions are reviewed to determine correlation to and every context is unique). We must develop bridges human rights standards. If the agreements are related between the two. There is no convenient binary. Every to semi-public crimes, the case will be dismissed, if context has similarities and differences. the case is related to public crimes, the reparation or reconciliation may help reduce the penalty imposed Similarly, there is no convenient duality between state by the court. and non-state; instead there are overlaps and ambiguities. 2. Recognition of customary law with limitations to The challenge is how to use them to increase access to accommodate human rights, based on consultation. justice among those typically excluded. The Timorese people proposed limits to customary practices related to gender issues (forced marriages, domestic violence, inheritance issues), elimination of The Reality of Multiple State/Local Justice the cast system, and systems of prohibitions and fines. Hybrids in ‘Special Areas’ of Pakistan 3. Establishment of a commission for victims support at community level. As most of the victims of domestic Pakistan’s ‘Special Areas’include the Federally Administered violence are women and children, and women are Tribal Areas (FATA), Provincially Administered Tribal Areas isolated, participants have proposed the establishment (PATA), Frontier Regions, Special Areas in Baluchistan and of a Commission for victims support at the suco the special cases of ‘Swat’ and Malakand Division. These level. The Commission will accompany the victims tribal areas did not come under a central authority and to every authority and institution, and refer cases to have been subjected to colonial governance policies correspondent authority and advise customary and followed by a period of ‘post-colonial experimentation’ community judicial authorities in relation to women’s resulting in differential access to rights. and children’s rights. These commissions would consist of the women representative of conselho de suco and other local organizations. Mechanisms for gender External Development Partner Engagement justice should apply simplified proceedings, local Strategies customs and should be delivered in local languages. 4. Establishment of community judicial tribunal. The The Post-Conflict Needs Assessment for FATA, PATA and Constitution only recognises jurisdictional powers Khyber-Pakhtunkhwa was conducted by the European of judges and not those of customary authorities. Union, the World Bank, the United Nations, and the (lia nain, chefe de suco, aldeia, etc.) Participants at Asian Development Bank. The Needs Assessment was the consultations proposed that the law may create limited in its effectiveness because of the plurality of the community-level tribunals with jurisdictional powers. systems it was supposed to examine, and the linearity of 22 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) the assessment design. Further, the rushed timeframe • Accessible local processes with state constitutional (consultants had 15 days to develop the strategy) and oversight unclear conceptions led to prescriptions without data and without deliberation. The Role of Non-state Justice Systems in Lack of adequate engagement with non-state justice Afghanistan: Challenges and systems in the rest of Pakistan is on account of the predominant court-centric approach. The courts are Opportunities confronted with mounting litigation, delays and backlogs. The challenge of case management has resulted in general neglect of substantive and procedural reforms in Discussions in this session were informed by law. Complex dualities of supply and demand, state and presentations by the following: citizen, state and non-state justice have been overlooked. Abdul MajidGhanizada, Head of Civil Law Unit, In some cases traditional non-state justice systems have Ministry of Justice of Afghanistan. been co-opted, i.e. Panchayat, Faislo & Jirga has also been revealed. In this context there is a growing tendency on LailaLangari, Programme Officer, Education the part of people to avoid courts and increasingly rely and Training Centre for Poor Women and Girls upon non-state or private dispute resolution. of Afghanistan (EWC). The Role of Non-state Justice Systems in Afghanistan: Challenges and Opportunities in Context. Institutional, Theoretical and Cultural Obstacles • ‘Judicial Independence’ or ‘Insularity’? The policy of non- Afghanistan is a country with long tradition of customary engagement by the judicial leadership justice represented through Shura and Jirga councils. • From ‘Efficiency Plus’ to ‘Micro-Efficiency’- the shrinking Nowadays, the justice system in Afghanistan uses both menu of international rule of law projects in Pakistan formal and traditional justice to settle disputes. • The reform discourse and the hegemony of the ‘technocrats’ In 2009 the Ministry of Justice approved a policy for the • ‘The siege of the legal academy’ – confused regulation, regulation of jirga affairs. In 2010 a draft law was prepared shrinking budgets and low research output which, among other things, specified a demarcation in • The reign of the lawyers in the aftermath of the Pakistani jurisdiction for customary justice systems. The proposed ‘Lawyers’ Movement’ bill seeks to regulate the membership of the jirga, • Recent failures – the ADB-funded Access to Justice requiring that members must: Pakistan initiative in the areas of alternative dispute • Be elected to the position resolution • Not be younger than 25 • Be of good reputation in the community • Be knowledgeable of laws, Suggested Approaches • Be a local resident • Include a percentage of women. In special areas: • Deeper and more transparent political engagement on The Bill requires that community based jirga may no change longer deprive disputants or defendants of their freedom, • Gradual mainstreaming of existing frameworks and nor may they improve monetary fines. It further states devolution of non-state modules for certain kinds of that decisions must be in accordance with human rights disputes standards, particularly for women and children. Under the • Consensus on overarching constitution based normative proposed law, if the jirga cannot resolve a case it will be framework referred to a formal court, once the case is reviewed, the • Concomitant administrative, social, cultural and “ development reforms In rest of Pakistan: There is no convenient duality between • Mapping and empirical understanding of non-state state and non-state; instead there are justice systems • Broadening the dialogue beyond the judiciary overlaps and ambiguities. The challenge ” • Consensus building for decentralization and enabling is how to use them to increase access to legislation justice among those typically excluded. 23 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) formal system will not allow for appeal to review the case • Conduct advocacy campaigns to call for support on again. Cases at the jirga must be registered. human rights. Some challenges within the non-state justice systems of Afghanistan include: Recommendations • Exclusion of women from participation in decision- making; • The donors and NGOs should support and implement • Discrimination against the poor and powerless; programmes that directly or indirectly support and • Violations of human rights principles, for example: bad, assist the formal justice systems. or forced under-age marriages; • The programmes related to non-state justice systems • Procedures and rulings that are contradictory to national conducted by NGOs, should highlight positive aspects laws; of those institutions and Afghanistan traditions that give • Enforcement of decisions is not guaranteed; them legitimacy. • Lack of proper record keeping; • There must be strong coordination among the • Traditional perceptions and tribal codes/values are government, councils and NGOs (CSOs and Donors). considered instead of ‘real justice’; • A proper and standard database should be established • Deep roots of enmity among the tribes can result in for recording the cases decided by state institutions and discriminatory decision-making; non-state institutions. • Low level of knowledge about human rights (Islam and • The international community should provide the formal international constitution); justice system with technical assistants and advisors to • Weak coordination between the NGOs and Government assist them in the implementation of law. and donors; and • Low rate of literacy. The Role of Non-state Justice Systems in Afghanistan: Challenges and Civil Society Organisations in Afghanistan Opportunities – Continued Civil society groups in Afghanistan have been conducting awareness training for judicial officials, government employees (men and women), religious leaders, Mullahs, Discussions in this session were informed by Maliks, village leaders, police, school teachers and presentations by the following: students, youths, housewives, and NGO employees. The Jennifer Brick Murtazashvili, Assistant Professor, topics covered have included Constitution of Afghanistan, Graduate School of Public and International Affairs, Islamic Human Rights, and other adopted laws. CSOs University of Wisconsin. Understanding the Political have also supported advocacy projects. They have sought Economy of Customary Organisation to Better Inform to empower women through literacy programmes. They Interventions for Local Self-Provision. have also addressed means of engaging with parliament, provincial level shura, and to participate in Community Taguhi Dallakyan, Consultant and Analyst; former Development Councils (CDC). Guidance has also been Project Manager, Access to Justice at the District given on small business development. Level, UNDP Afghanistan. Raising Awareness of Community and Religious Leaders in Human Rights: One civil society organization, the Education and Training Experiences from Afghanistan. Centre for Poor Women and Girls of Afghanistan (EWC), has worked with non-state justice systems in Afghanistan to: Jasteena Dhillon, Visiting Scholar, Harvard Law • Train more than 2000 influential people, such as School, andAdjunct Professor, University of Windsor religious leaders, as potential trainers to work as Human Law School. Legal Pragmatism and Rights Protection Rights Awareness trainers; in Customary Legal Mechanisms in Afghanistan. • Establish Youth Volunteer Committees at village and city level to advocate for human rights; • Develop and publish materials on human rights awareness, including conflict resolution and mediation Understanding the Political Economy of training manuals with the help of the community elders Customary Organisation to Better Inform and leaders; Interventions for Local Self-Provision • Establish a Legal Aid Clinic in Kunduz province focusing on women’s rights support and have encouraged the It is difficult to differentiate “justice” and non-state legal community to report on incidents calling for legal systems from informal governance structures. These attention; and organizations derive their authority and legitimacy not 24 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) from the state but from traditional and religious bases. Similarly, it is also difficult to separate religion from custom (Pashtunwali,‘urf, adat, sharia). “ Access to customary organisations is highly compatible with democratic values. And, government leaders are more legitimate in the eyes of community members ” Three key observations that external development when they take cognizance of customary partners should do: law instead of only the state law. • Understand what customary organisations do and what they do not do. • Abandon the assumption of the zero-sum relationship between state and customary bodies. • Recognise that ALL assistance is political. Customary governance actors maintain and use revenue from reliable local sources and are not dependent on aid, The survey on ways in which customary institutions in local government budgets or bribes. As such, customary Afghanistan are organized centred on: decision makers are accountable to the community. 1) Empirical Objective – WHAT • Gauged the state of village governance in an increasingly Key findings from the survey include the following: crowded institutional landscape • There is no evidence that the presence of customary • Yielded data from the largest, independent qualitative organisations undermines state support. In fact, better study of village governance in “post-Taliban” Afghanistan quality of customary organisations is associated with increased level of support for the state. Faith in their 2) Theoretical Objectives – WHY shura and jirgas with increased accessibility to decision- • Understand institutional mechanisms that facilitate making and participation also reflects a faith in the state local provision of public goods and confidence in democracy. Access to customary • Analysis of rules that govern communities organisations is highly compatible with democratic • Are communities effective in providing public goods? values. And, government leaders are more legitimate • What goods can they provide? Why? in the eyes of community members when they take • What are the limits to village self-governance? cognizance of customary law instead of only the state law. 3) Relationship between communities • When the scale of conflict increases, the ability to resolve • Under what conditions can communities cooperate to issues locally decreases. The scale of conflict is affected provide public goods? by the influx of larger numbers of power holders and claimants. Following the influx of finance from CDC 4) Relationship between communities and the (district) projects (these can be community ‘mobilisation’ grants government of up to $60,000) the number and complexity of claims • When does the government respect communities? have increased. When do communities respect the authority of the • Strong customary actors have the ability to check the government? authority of the state, because customary structures are governance structures. They are much more than courts or arbiters. Why are customary systems of organisation • Aid can only have a limited positive impact, and is not a effective? substitute for the state. • There is regular interaction between customary actors The separation of local authority as well as checks and and the state at the local level. balances between actors maintains the legitimacy, authority and perceived fairness of the systems. The Malik, the shura and the Mullahs are largely independent entities For practitioners and development partners, whose legitimacy is derived from different sources. The the fundamental question becomes:“Engage study found that village governance is most effective for What?” when no single actor dominates the others. We have to remember that external engagement alters Customary governance actors maintain long time incentives. Non-state actors can be perceived as, or horizons. They are familiar with the history of the indeed, become agents of the state or agents of NGOs. community and they are recognised as enduring entities. This is an advantage not enjoyed by the international Engagement raises other critical questions – do we community, nor the state. strengthen one body over others? What are the incentives and disincentives we are creating and how will that affect the balance (or imbalance) of power? 25 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) How can we overcome limitations of projects with short durations? Lack of long term planning horizons is often a cause for failure in development programming. “ If we are creating new bodies, altering incentives, and flushing certain systems with attention and money – what happens ” when the attention and money is gone If we are creating new bodies, altering incentives, and and the systems are abandoned? flushing certain systems with attention and money – what happens when the attention and money is gone and the systems are abandoned? ‘Legal Pragmatism and Rights Protection The research demonstrates that intervention by the state in Customary Legal Mechanisms in is in high demand, particularly for larger scale public Afghanistan’ goods and services, such as intra-communal goods and infrastructure. Yet, donor proclivities are towards Some key points regarding the process of understanding ‘community development’. There is tremendous demand how to engage with non-state actors include the for impartial state structures, even among those who are following: strongly supportive of customary structures. The • Ownership by Afghan stakeholders is critical. international community should continue to build the • We must engage a multi-disciplinary approach to state, but should not distort/support customary structures understanding this system – history, anthropology as at the risk of undermining their legitimacy and the security well as current approaches of law and political science of village governance. and to some extent economics. The current approach to intervention in Afghanistan’s justice system is policy driven and implemented by legal scholars, however, this ‘Raising Awareness of Community and is too narrow. A recent example of this is the law that has Religious Leaders in Human Rights: been passed by Parliament to regulate the operation Experiences from Afghanistan’ of shura. The Ministry of Justice is not in a position of regulating such a mechanism for justice. The regulation The UNDP supported Access to Justice at the District Level of these mechanisms should be done by the traditional (AJDL) project worked in 9 provinces, and more than 60 authorities and respected persons, including both men districts of Afghanistan. A major component of the project and women. was raising human rights awareness. • The international community’s interventions in Afghanistan have been hampered by an over reliance Rights-based training sessions were conducted for on international human rights norms and complex legal representatives of the traditional justice system and a formulations, and a relative neglect of existing power training manual developed for religious leaders (Ulama). structures within the community. A separate training manual was developed for officials • The injection of international funding has created within the formal justice system. ‘dependency’ in both the state and non-state actors in the justice systems of Afghanistan. The training materials combined statutory laws, Sharia • International actors need to employ a ‘more humble and those international conventions which had a positive approach’. The use of regional examples of justice resonance among the beneficiaries. The human rights delivery institutions drawn from neighbouring countries messages in these manuals were supported by direct (e.g. India or Pakistan) might be more useful than citation of Quranic verses and the hadith. Other sources borrowing from ‘Western’ models and practices. of law, including interpretations by non-authoritative institutions or personalities could not have the same kind of credibility among the trainees. Engaging with Non-State Justice Systems – Principles and The training gave the ulama opportunities through the facilitated and interactive discussions to reach ‘human Recommendations rights compatible’ interpretations. After each chapter the manual set out examples of conflicts and disputes that The symposium participants broke into four groups to could be resolved on the basis of authorities cited in order address the following concerns: to guide other users of the manual. 1. Problematisation: defining objectives and the research agenda for engaging with non-state justice systems 2. The relevance of local legal principles and practices 3. Consideration of feasible, alternative mechanisms for justice delivery 26 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) 4. Possible principles governing the state/non-state • Non-intrusive intervention: ‘catalytic but not cosmetic’: interaction This relates to the principles of ‘responsibilisation’, and the need to respect the requirements and preferences of community level actors. It rules out grandiose projects Problematisation: defining objectives and of social-engineering. doing the research At the very outset the issue of whether to engage or not with Consideration of feasible, alternative state or non-state systems should be proceeded with an mechanisms for justice delivery understanding of ‘what is known’ and ‘what is not known’. The discussion in this group identified some entry points • The dichotomy ‘non-state/state system’ is problematic. and the pros and cons of alternative modes of justice Both sets of justice systems operate with different forms delivery that need not be grouped into state or non-state. of formality. The assumption that non-state systems The role of paralegals in justice delivery can often straddle are less formal compared to state systems may not be both state and non-state institutions. Some examples correct. from country contexts were provided: • It is important to recognize that justice systems, both state and non-state are part of the political landscape Cambodia: Access to formal institutions affected by and cannot be treated as insulated entities. Therefore, logistical and resource constraints. Where justice is it may be better to approach the problem as part of delivered at the community level by ‘elders’ or community governance involving a plurality of governance modes leaders, there is the problem of enforceability. This raises and mechanisms. the need for state recognition, in addition to community • The idea of justice should be broadened from a narrow acceptance of these mechanisms. sense of ‘seeking remedies to resolve conflicts’, to encompassing questions of distribution, social justice, China: Sending paralegals to remote areas has proved and violations of human rights. to be a viable option in China. Paralegals have been • Which comes first – identifying the problem or doing successful where they have been properly trained and the research? Action research provides a ‘way out’ they have been able to win the trust and confidence of because it enables problems to be identified through communities. Peoples’ Mediation Boards have also proved participatory research, informed by interactions to be useful in resolving disputes and avoiding recourse amongst stakeholders. This method is capable of to state courts. When a mediated agreement has the yielding solutions that make sense to the community. consent of disputants, this serves as a contract between them which they are obliged to respect. If necessary, it can be also enforced by a formal state authority. The relevance of local legal principles and practices India: Non-state ‘justice’ systems range from mechanisms established by communities of scavengers and sweepers, • Identifying local needs: identify real needs and local col- to grain traders in towns to which farmers bring their laborators through comprehensive needs assessments produce, to diamond dealers. All of these are grounded that engage scholars from various backgrounds, e.g. in their respective communities and are motivated to law, anthropology, sociology, gender advocates, etc. avoiding excessive costs and maintaining harmony and • Identifying and enabling duty bearers (‘Responsibilisation’): fair play in their transactions. This entails capacity development of duty bearers so they can understand their responsibilities towards the Pakistan: The Musalihat Anjuman enjoys legitimacy people they are meant to serve, their duties as part of a as their processes are grounded in local culture, and hierarchical structure, and their accountability. they are a component of the national judicial policy. All • Sustainability: ensure the durability of the benefits stakeholders are willing to use the system, and the police of development interventions by putting in place are mandated to respect their outcomes. mechanisms for institutional memory and capacity to change and adapt over time in response to evolving needs of the community. Possible principles governing the state/ • Culturally sensitivity: care must be taken to ensure that non-state interaction terms, categories and concepts that are derived from international discourse are translated into forms that are The group discussing this topic did not think it desirable familiar to the communities whose justice systems are to draw up ‘principles of engagement’. Instead, it directed sought to be reformed. attention to the following points: 27 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS) • Nature of engagement: The reasons for and the nature points to be made: of engagement with state and non-state actors must be •Do what works best. There can be a conflict between clearly understood. ‘what works’ and ‘at whose cost is it working’. This relates • Nature of state: It is important to understand the type of to varying conceptions of injustice. Perceptions over the authority that a state might want to assert when it seeks ‘ideal’ will vary. to determine the jurisdiction of non-state institutions. A •It is important to recognize agency. People are not dogmatic adherence to the state as having a Napoleonic mere clients. They are capable of fashioning solutions ideal of the state as having monopoly over delivery of to injustice. justice should be avoided. •Justice should be understood broadly. Justice needs to • Actors: who are the relevant actors – what is their duty be done not only to prevent violence and conflict, but and what role can they play in improving access to also to ensure that people have access to everything justice? Where is the agency of the community? How that is needed for life with dignity and humanity. can this be developed with regards to relationships with the state? Anyone who seeks to work in the area of justice must be • Nature of context: it is important to consider the prepared to shoulder the burden of a high standard of demand of communities that are engaged and their accountability which extends not only to the people that context, as this is helpful for the designing of an are sought to be served, but also to patterns of funding intervention. Participation from all bodies is a key for a and committment to durability and the ‘long haul’. good programme design. • Above all, ‘Do No Harm’: Interventions should not spur Deborah Isser: The focus of development partners should new conflict. be function, not form. This is why they must evaluate our impact. A couple of points to in elaboration: • While selecting the right entry points is important, Concluding Reflections assessment of impact is more important. What do programmes supported by external actors actually do Marc Galanter: It is important to acknowledge the is the point, not what inputs they provided, such as how moving frontier of justice and that it is inherently dynamic. many people they may have trained. Bringing about Injustice is a valuable starting point when engaging with desirable changes in inequitable distribution of power state and non-state justice systems. People can have would be an important impact. The challenge is how to different senses of what injustice is. Different senses of make that happen. injustice can give rise to different expectations. The sense • Raising legal consciousness: What does this actually of injustice is triggered not only in instances of unfairness mean? Awareness and sensitization are not useful amongst individuals but could also emanate from a more terms. The question is instead, how do we help create general appraisal of the performance of governance real opportunities? institutions, especially police and executive officials. • Engaging in order to reinforce justice for the poor. Making a difference in the lives of people who are Erica Harper: Several points are important for any struggling against exploitation and injustice should be development programme, including the value of research the touchstone. and evidence based programming with a participatory • Social embeddedness: Socially embedded interventions and multidisciplinary approach; holistic programming; are more likely to have a systemic impact. the ‘do-no-harm’ principle; and the importance of finding entry points other than justice and thus avoid Masood Amer: We must be critically aware of the marginalising people’s priorities. Responses must be dynamism of non-state justice systems. They are capable multi-faceted; no issue can be addressed in isolation. of change, they are susceptible to incorporating new Impact evaluations are critical – is our work having the norms when they are supported or pressured by their desired effect? In short, nothing can substitute thoughtful, constituencies. It is important to avoid confusing, diluting considered and well thought-out programming. or deligitimising this inherent dynamism among non- state justice systems. External development partners Vijay Nagaraj: Contextualized programming stands out must be cognizent about this potential for change and as an overarching idea, but there are three additional coherent in their support for change. 28 PART I: ENGAGING WITH NON-STATE JUSTICE SYSTEMS (NSJS)  PART II: Conducting Access to Justice Assessments Introduction – UNDP and Access to It targets efforts pro-actively towards groups suffering Justice Assessments in the Asia Pacific discrimination and marginalisation and focuses on the processes used in programming for human development. Region The foundation of the HRBA lies in principles of non- discrimination, participation, and accountability. Discussions in this session were informed by HRBA is critical in terms of both the what and the how of presentations by the following: development processes. The substantive value (what) of adopting HRBA includes: Aparna Basnyat, UNDP APRC Human Rights Specialist. Moderator. • Focuses on most disadvantaged groups and their entitlements as human beings Emilia Mugnai, UNDP APRC Justice and Human • Strengthens Human Development and Capacity Rights Programme Specialist. UNDP’s work on Access Development perspectives to justice in the region. • Brings process of development to the forefront Ramani Jayasundre, UNDP APRC Access to The process value (how) of using HRBA includes: Justice Assessments Consultant. Mapping and • Improves assessment and analysis – holistic, systematic, review of access to justice assessments in the region. results-oriented • Actively seeks inclusion of most disadvantaged people • Improves accountability systems • Expands partnerships and strengthens communication The UNDP regional initiative on the human rights-based flows access to justice – the Asia Pacific Rights and Justice Initiative (AP-A2J) has been ongoing since 2002. The AP-A2J Initiative is focused on a bottom-up approach to “ ensure that people have better access to justice. The AP-A2J Initiative grounded UNDP’s justice related work firmly within the framework of the human rights-based approach (HRBA). By adopting the human rights-based With HRBA as the starting point for the approach to access to justice, practitioners found a analysis, practitioners involved in the framework for the process of human development that is AP-A2J Initiative adopted a definition of normatively based on, and operationally directed to, access to justice which focused people being developing capacities for the realization of human rights. able to obtain redress for grievances: HRBA seeks to address and correct existing power “The ability of people to seek and obtain imbalances in development processes. It recognizes a remedy through formal or informal ” human beings as rights-holders and establishes obliga- institutions of justice, and in conformity tions for duty-bearers (accountability/empowerment). with human rights standards.” 29 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS This definition focuses on the experience of the claim Mapping and Review of Access to Justice holders, not simply with services or institutions. It focuses Assessments in the Region – Draft Paper on capacities and distinguishes between the supply and demand side of justice (different capacities but both In 2010, UNDP APRC commissioned a paper to review the needed). It also explicitly notes the quality of justice that is different tools, processes and methodologies used as access required (respectful of human rights) and recognizes both to justice assessments in the region. The paper reviewed formal and traditional justice mechanisms. seventeen access to justice assessments conducted both by UNDP and other development agencies. The As a result of the AP-A2J Initiative, there have been many presentation underlined aspects of the design, the analysis UNDP access to justice programmes in the region that of the findings, the impact of the assessments, as well as have undertaken assessments. The assessments have mainstreaming of sensitivities within the assessment, and been used as the starting point for justice policy and identifying particular special situations that affect the programming as it provides necessary information as to assessment including conflict situations. who has access to justice remedies and who does not and why. Further, these assessments: Some preliminary findings from the review include the • Address a specific access to justice issue rather than an following points: institution; • Build knowledge of the problem to better address the • Use of different methods. Assessments have problems; developed and refined research designs, methods and • Analyse perceptions on the meaning of ‘justice’ and tools to suit specific contexts. Often, despite different ‘access to justice’; methods findings and conclusions will be similar in • Provide a space for dialogue among duty bearers and broad areas, however certain methods can reveal more rights holders that can influence policy making; and specific findings in target areas. • Serve as a vehicle for empowerment and accountability. • Defining Access to justice. A clear definition of access to justice can usefully guide assessments. However, UNDP have started or completed access to justice some leave the definition vague and open to probing assessments in several countries including Cambodia, by the target communities thus establishing a definition Indonesia, Lao PDR, the Maldives, Nepal, Sri Lanka, based on community understanding. Some definitions Timor-Leste, and Viet Nam. These assessments have have included overarching issues of rights protection, been designed and implemented independently of each as well as rights enhancement in positive enabling other and methodologies and scope have varied. Some environments. Some have defined access to justice countries chose to pursue a nationwide assessment while in legal empowerment terms; as a combination of others focused on certain groups or issues, such as access individual awareness, access, and confidence. Some to justice for women, indigenous peoples, and conflict- assessments focused on access to social justice or affected populations. Some assessments were conducted access to resources and others focused on both supply with a limited geographic scope, targeting specific and demand side understandings. districts or provinces. • Approaches to assessments. Some assessments start with a clear acceptance that the human rights based These assessments have also served various purposes. approach will be followed, while some assessments In Cambodia, the assessment provided the basis for merely imply it. designing UNDP programmes on access to justice. In • Rationales and Assumptions. Some assessments are Viet Nam, the assessment served as a baseline measure conducted with prior understanding of access to justice for impact from the access to justice. In Indonesia, the issues within a country or community group and follow assessment initiated and informed a national strategy on on from such. Others are conducted in order to develop access to justice. In Sri Lanka and Nepal, the assessments an understanding about potential issues, or more were intended to facilitate a dialogue with the government generally to provide baselines for assessing changes in on justice and human rights issues during the conflict, but access to justice for selected groups. they could not be completed due to political sensitivities. • Methodologies and tools. The majority of assessments Here, there are some important lessons about conducting follow time tested research methods to examine assessments in conflict or post-conflict environments, and understand phenomena and perceptions. A few which will be detailed later in this report. assessments go beyond exploration and understanding, and work action research into methodologies aimed at empowering the people who participate in the research process. • Assessment design. Explicit objectives influence the assessment design. Detailed terms of reference provide clear guidelines for those undertaking the 30 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS  assessment but also in ensuring a focused approach audiences at local and national forums is critical for to the assessment. There is no uniform method for results dissemination and awareness-raising. sample selection. Prior knowledge about groups of • Arriving at Findings, Conclusions and people who are likely to face difficulties in accessing Recommendations. Assessments can provide justice is noted. The selection criteria can also be based extensive and comprehensive findings. It is difficult to on qualitative data gathered through socio-economic arrive at a uniform system of data analysis and distilling mappings of sites. Assessments should attempt to conclusions from the vast amount of information ensure samples that are representative of populations gathered. Some use a collection of analysis tools- in terms of geographical distribution, ethnicity, age, conflict analysis, institutional analysis, service analysis, sex, professions, income levels, and education. The dispute resolution analysis, perceptions analysis, needs actual sample sizes vary in assessments. Clearly defined analysis to identify conclusive statements. timeframes and implementation plans are important as • Results of Assessments. How do these assessments assessments can range from three weeks to two years. impact on the lives of the people who they aim to Constraints and unforeseen problems have delayed serve? To date, many assessments do not include assessments; and yet assessment designs typically follow up for monitoring and evaluating projects and do not have strategic plans to mitigate such risks. programmes that are conceptualised and implemented Furthermore, there is no established methodology for as a result of these assessments. This is an area that rapid assessments. requires discussion. • Data collection methods. Assessments often use both • Mainstreaming Focus on Disadvantaged Groups. quantitative and qualitative data collected through How do you ensure mainstreaming of gender, ethnicity, both primary and secondary sources. Primary data, both class, caste and other sensitivities to access to justice qualitative and quantitative is collected through surveys, assessments? Does the human rights based approach focus group discussions (FGDs), in-depth interviews, ensure this? and information gathering and sharing workshops. • Special Situations. Assessing access to justice in spe- Secondary data is collected from case studies, literature cific situations need clear guidelines. Specific situations and desk reviews from various sources. could include conflict situations, post conflict situations, • Research design. Most assessments outline a series of and situations where access to justice for poor and mar- research questions that guide the assessment. Research ginalized populations is not a national priority, or where questions must be specifically formulated in culturally certain groups are oppressed by the government. familiar and acceptable ways in different assessments. Often direct questions need to be complemented with hypothetical problems posed for the participant Where do we start: Designing the to respond to more comfortably. Some are probing Research Framework questions which look at wide conceptual issues together with direct practical issues. • Innovative methods and tools. Some assessments Discussions in this session were informed by involve additional objectives and have included presentations by the following: capacity building efforts for people conducting or participating in assessments. Others have considered Emilia Mugnai, UNDP APRC Justice and Human strategic training of researchers, quality control systems, Rights Programme Specialist. Moderator. process-monitoring frameworks and development of a “Do no harm” note. Chris Morris, formerly with UNDP Indonesia. • Partnering for Research. Partnerships add strategic UNDP access to justice assessment in Indonesia. value to the assessments and many are jointly Sharmeela Rassoul, UNDP Sri Lanka. Challenges of conceptualized and implemented. Past partnerships conducting an access to justice assessment during the include those between governments, UN agencies, conflict in Sri Lanka. donors, non-government organisations, research institutions and academic institutions with diverse Aishath Rizna, Senior registrar at the Maldives levels of decision making placed on each partner. There Supreme Court. Access to justice assessment in the is value in ‘outsourcing’ research to national research Maldives. institutions too. • Teams and Experts. The team arrangements for Barkhas Losolsuren, UNDP Mongolia. Designing assessments vary. Some rely heavily on national partners an assessment for Mongolia. and include local and international experts from various Tiernan Mennen, Open Society Institute. thematic and methodological expertise to provide Conducting assessments using paralegals. technical assistance. Some also invite an external review of findings and conclusions. The involvement of wider 31 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS The session was dedicated to identifying challenges, opportunities and lessons from experiences in the region “ HRBA encourages a strong focus on participation at all levels, but greater ” in initiating access to justice assessments and designing participation can involve trade-offs including the research framework and methodology. a large investment of time and money Design and Implementation of the Access In terms of conducting the assessment, the assessment to Justice Assessment in Indonesia was managed by UNDP and BAPPENAS, the National Development Planning Agency of the Government of The UNDP Access to Justice Assessment in Indonesia Indonesia, and implemented by Peace and Security (2005–06) was implemented in partnership with Studies at the University of Gajah Mada (PSKP-UGM) the Indonesian Ministry of Development Planning with five research teams and five NGOs conducting (BAPPENAS). It focused on: the surveys. Secondary research was conducted for 1. Identifying the key justice-related issues facing the preliminary site selection. After selecting the sites, 200 poor and disadvantaged focus group discussions were conducted followed up 2. Identifying and assessing key factors obstructing with 700 in-depth interviews and a quantitative survey of or enabling access to justice for the poor and 4500 respondents. disadvantaged (as claim-holders) 3. Identifying and assessing key factors influencing Some key issues and lessons that emerged from the the capacity of formal and informal justice actors assessment highlight some of the challenges in applying (duty-bearers) to fulfill their obligation to ensure that HRBA in the research framework and implementation. claim-holders can enjoy their rights The focus on disadvantaged groups, for example, is easier said than done as identifying and obtaining access can The assessment was carried out in 5 provinces: West take time and finding ‘the most’ disadvantaged may not Kalimantan, Maluku, North Maluku, Central Sulawesi always be strictly necessary, as often in poorer areas, the and Southeast Sulawesi. In each province, two districts difference between ‘average’ and disadvantaged may be were targeted with two sub-districts within the districts marginal. Additionally, HRBA encourages a strong focus and two villages per sub-district, to a total of 40 villages. on participation at all levels, but greater participation These villages were selected due to specific characteristics can involve trade-offs including a large investment of including intensity of conflict, ethnic/religious composi- time and money. In many cases, additional investments tion, strength of traditional governance, distance from the much be made in the capacities of those taking part in capital and the level of poverty/development. order to ensure meaningful participation. Finally, a strict adherence to HRBA has the potential to undermine true The research framework examined the following issues: ‘partnerships’ where the approach is unfamiliar to the • Citizen’s trust in the justice system implementing partners. • Legal and normative protection of rights and remedies • Legal awareness For more details see Assessment publication, Justice for • Legal aid and counsel All, available at: http://www.undp.or.id/programme/ • Investigation governance/ • Detention • Prosecution • Judicial adjudication Equal Access to Justice Survey in Sri Lanka • Administrative dispute resolution • Informal and traditional dispute resolution The access to justice assessment was aimed at providing • Enforcement a baseline for the UNDP justice project as well as other • Civil society and parliamentary oversight national actors in the sector to enable better targeting and monitoring of the impact of their intervention. It was Adopting a human rights-based approach (HRBA) for the also an effort by the UNDP Equal Access to Justice Project research framework meant that there was an overt focus to identify areas of intervention for their programme on the perspectives of the poor and disadvantaged, and as they moved from the first phase (2004–2009) to the that the issues were framed in terms of duty bearers and second phase (2009–2012). However, due to the sensitive claim holders. These perspectives allowed ‘justice’ to be context in which it took place, the assessment was halted framed more widely than it might have been. However, upon request by the Ministry of Defence, citing security there were challenges posed by using HRBA since it was reasons. less helpful in aiding identification of priority issues. In any assessment, the context that the assessment takes place is very important. In Sri Lanka this was critical in 32 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS determining the outcome of the assessment. Planning the quantitative survey posed the question: “Q. In the for the assessment began in 2008 in a context where the event that your husband ill treats you, where would conflict was escalating. There was a lack of data on the you go first for advice? a) Mediation Board, b) Legal justice sector. In the north of the country, there was no Aid Provider, c) Religious Leader, d) GN or DS, e) Police, access to two districts and Jaffna was extremely costly to f ) School principal, g) Other”. The qualitative part of the get to. In the east, the provinces had just been brought survey would follow up to try to answer why the answers under government control. The assessment, in trying to were given. In this case, if 84% of people say religious determine the access to justice for the most vulnerable, leader or school principal, the FGD would try to identify sought to focus on the north and east conflict affected the reasons such as a lack of knowledge about the areas. importance of reporting to the police, lack of awareness that domestic violence is a crime, or there is no legal aid UNDP provided technical support to conceptualise the clinic in easy reach. assessment based on lessons learned from previous assessments in Cambodia and Nepal. After reviewing The access to justice survey would be a key tool in the comparative examples from other countries, a developing project interventions. Using the above dual approach to the assessment was identified where example possible interventions could include: information would be collected from both the service • Awareness raising and training for religious leaders providers and the beneficiaries of the justice system. The and school principals, so that they come to recognise assessment would focus on what the service providers that domestic violence is a crime and can provide understand as their strengths and challenges they face appropriate support to people in the community. in doing their work (including lawyers, judges, legal aid, • Legal awareness campaign in the assessment target police, mediation boards, local government officials, area and mobile legal aid services in remote villages. prisons, registrar general, etc.), and compare against beneficiaries’ knowledge about the justice system and Some responses from the districts included: their experiences when seeking remedy. • Puttalum – where competition over fishing grounds, thuggary and work-related disputes were identified as The questionnaires sought to specifically identify access the top disputes, potential responses were identified to justice issues for women, internally displaced people as: consultative forums between the different fishing and returnees and estate sector workers. It also included associations; training for mediation boards to handle sections on documentation and sexual violence. The work related disputes; or sharing results with the police questionnaires also attempted to draw out people’s and discuss best ways of addressing thuggary. perception of the justice system and how much they had • Ampara – where lack of legal documentation, land used the system. disputes and alcohol use were identified as key issues, interventions could include mobile documentation The assessment was developed in consultation with the clinics; training for legal aid providers to advice on land Ministry of Justice and Ministry of Constitutional Affairs. related cases; or highlighting dangers of alcohol abuse It was important to hold consultation and a regional with local schools, religious leaders and community inception workshop with government partners in several organisations who are better placed to assist. areas: Colombo, Kandy (to target the Estate Sector), the Vavuniya (to target the north), and Kalmunai (in the east). Some key lessons from the assessment include the following: The assessment fieldwork was conducted from August • The framework for the assessment needs to be clear 2008 until November 2009 where fourteen out of the and it is necessary that there is an agreement among twenty-two districts were surveyed by UNOPS. Of the eight the implementing partners on a common approach to remaining district, five are partially completed (Mannar, the assessment. Batticaloa, Trincomalee, Badulla, and Anuradhapura). • In this case, it was critical that the national stakeholders UNOPS led the quantitative part of the survey which (especially the government) have ownership of the data. included the household survey. Based on key issues raised • Context is critical in determining the success/outcomes from these surveys, FGDs were held on particular subjects of the survey and it is important to be sensitive to the and led by the local NGO Center for Policy Alternatives’ environment in which the survey is being conducted. Social Indicators. Social Indicators also conducted focus During times of insecurity, participants in the assessment group discussions with service providers. may be suspicious of how their contributions will be used. UNOPS’ quantitative results were analysed by the UNDP Access to Justice Project and Social Indicator to identify As a result of the survey being stopped, alternative means key trends. The FGDs were then held to try to understand of acquiring information was used to inform Phase II of the the reason behind the numbers and trends. For example, UNDP justice project including feedback from the project 33 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS field presence, responses from local government officials Involving all project partners is critical to the success of on priority areas of intervention, data from legal aid clinics, the survey. Through every stage there was consultation survey reports from other partners and consultation with with all the project partners which includes the Attorney provincial and national government stakeholders. General’s Office, the Prosecutor General’s Office, Home Affairs and the Judiciary (including the High Court and the subordinate courts). The inputs from all the institutions Access to Justice Survey in the Maldives which worked as a team helped to localize the survey. Also it was seen that feedback at every stage is essential It is always important to understand the context in which with regard to all aspects of the survey. the assessment is being conducted. The Maldives is undergoing democratic reform under their 2008 Prior to commencing the assessment, a human rights- constitution; a process which includes an overhaul of the based approach to access to justice workshop was held justice sector. Within the reform process, there are ongoing with support from the UNDP Asia Pacific Regional Centre efforts to increase individuals’ ability to know and claim which helped in bringing all the partners together in their rights and access remedy for their grievances as well understanding and agreeing on the aim and objectives as aiming to strengthen the institutional capacities of the of the survey. The inputs from this workshop were also justice sector to better address the needs of people, used to inform the survey and the Indonesia assessment notably the marginalized and disadvantaged. Through the experience was used as the framework which was Protecting Human Rights and Promoting Access to Justice modified to fit into the local context. Project signed in 2008, UNDP is supporting the Government to provide critical preparatory assistance and The survey was conducted using a mix of qualitative and support for the production of baseline data needed to quantitative methods which provided for an extensive create the foundation for applying the human rights in-depth analysis of access to justice and related issues. based approach to strengthening the justice sector. The Questionnaires were administered by enumerators survey will also identify interventions necessary to address (employed by a survey firm) to a randomly selected the gaps identified in the system. This includes obstacles sample of around 2000 citizens. The enumerators were for citizens to access to justice and the capacity of service also trained by an international consultant as to the providers to deliver justice. The findings of the survey will objective and purpose of the access to justice. provide policy recommendations to guide the justice sector and broader democratic reforms. Some key points in conducting the survey are as follows: • Although the sample was randomly selected, the “ importance of a gender balance in the sample was thought and those polled were selected to ensure that In the assessment processes, there was gender balance; • ” Maldives was divided into four strata according to the often the best results could distance from Male’ as distance was an important factor be the unanticipated ones influencing access to justice; • The court system is structured in a way that all the courts of first instance with full jurisdiction along with the tribunals are situated in Male’; and The study considers the following objectives: • Samples were taken from all the atolls and one island • Provide baseline information on public confidence in was randomly selected for the survey- this was done the justice system; to strengthen the legitimacy of the survey among the • Provide insights into citizen’s awareness of the justice population. system and to access to justice; • Identify types of grievances faced by people and the The questionnaires to ascertain information on public obstacles in seeking redress; perception consisted of: • Identify the knowledge base of duty bearers; • Small Questionnaire – designed to measure general • Identify the challenges and obstacles faced by duty perceptions on law and specific perceptions of the bearers; justice system (sample size of 2,000); and • Provide information related to legal and rights awareness • Large Questionnaire – designed to measure more to survey communities; and in-depth information about the respondents attitude • Provide avenues for policy discussions, sensitization and towards the justice system, their knowledge of law, as recommendations for informing policy, access to justice well as their experiences in relation to the justice system and justice sector reforms. (sample size of 150). 34 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Questionnaires were specially tailored for: For Mongolia, it is important to explore the linkages •Migrant workers; between the access to justice work with the legal •Prisoners; empowerment of the poor (LEP) work and the work on •Court users; and human rights and the Universal Periodic Review. Some •Professionals from within the judicial system, including questions raised during the discussions included the judges, court staff, police, state attorneys, state following: Is “Legal Empowerment of the Poor” part of prosecutors and private lawyers (questionnaires for “Access to Justice”, or is “Access to Justice” part of “Legal these groups were self-administered). Empowerment of the Poor”? Or are they just different approaches to the same problem and can sometimes Additionally, case studies were developed on criminal, overlap? civil and family cases from the courts. “ Some lessons from the assessment include the following: • It was useful in designing questionnaires to give careful Assessments can have a larger effect of consideration to ensure that language issues and wordings of all questionnaires were consistent and influencing policies or stimulating change ” accessible. and empowering communities by providing • Professional questionnaires – were self-administered a platform for people voice their opinions and the sample size was lower than anticipated because of limited capacity – there are currently no research institutes in the country. • The period during which the survey was administered coincided with the end of the transition period as Legal Empowerment Perspectives stipulated in the Constitution. As a result, it was a challenging context for conducting the A2J assessment, Assessments conducted at the ground level can yet also provided opportunities for transformative incorporate a legal empowerment component whereby results since the survey would provide a baseline for the participants in the assessment are encouraged to use the government to see the picture of the justice situation on opportunity to deliberate on justice and to use the results the ground. of the assessment to advocate for better service provision. The example of participatory action research conducted by the Open Society Institute in Sudan, where assessments Access to Justice Assessments: Designing are done also to stimulate action is one such example. the Research Framework – Mongolia Participatory action research can have the effect of being catalytic in terms of mobilizing communities by bringing The Access to Justice Needs Assessment conducted them together to present the findings of the data and in 2005 was based on a very broad terms of reference initiating a dialogue on the critical access to justice issues that examined the capacity needs of duty-bearers raised by the research. By engaging in dialogue with the and rights-holders. The assessment was conducted community it is possible to ensure that the final product by a local consultant and one of the key challenges of the research contains both the objectives of the project was in translating the terminology into the Mongolian but also the objectives of the community. Participatory language and context. The assessment contributed to the action research approaches have also been used with programming decision to focus on the establishment of paralegals in Sierra Leone. It should be remembered that Legal Aid Centres (LAC). often times in the assessment processes, the best results could be the unanticipated ones. The current access to justice project in Mongolia seeks to build on the Legal Aid Centres with the intention to In conclusion, assessments, while useful for UNDP expand the national legal aid system (including legal programmes, can also have a larger effect of influencing clinics, paralegals, etc.). Other interventions include: policies or stimulating change and empowering • Draft Gender Equality Law and activities on gender communities by providing a platform for people voice based violence including a one stop service centre, their opinions. In certain cases, there may be trade-offs men’s counselling and behaviour change sessions; involved between methodology and results. Finally, it is • Draft Victims and Witness Protection Law; critical to ensure ownership of the assessment by national • Promoting rights of people with disabilities; and stakeholders, particularly the government. • Support to the Universal Period Review. 35 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS How to make it Happen: Conducting the Assessment “ It is essential to remember that an assessment and consultation process can be a political process – a means of giving voice to people who may otherwise be ” Discussions in this session were informed by marginalized, a means of participating presentations by the following: in decisions that will affect their lives Laurent Pouget, UNDP Lao PDR. Moderator. Raquel Yrioyen Fajardo, Independent Consultant It is essential to remember that an assessment and from Peru. Research and consultation in the context consultation process can be a political process – a of legal pluralism: the case of Cambodia and means of giving voice to people who may otherwise be Timor-Leste. marginalized, a means of participating in decisions that will affect their lives. There has to be political ownership Krishna Vellupillai, UNOPS Sri Lanka. Challenges (political condition) where there is buy in from the of implementation in a conflict environment. national body in charge and social networks. Allies such as the UN and donors can support this political process and Nguyen Tien Lap, Senior partner at NHQuang and consultation. The assessment also provides an opportunity Associates Law Firm, Access to Justice Assessments for systemization through national awareness-raising on in Viet Nam the issue. It is expected that the final outcome will be that policy development and drafting of legislation regarding Ingvild Oia, UNDP Oslo Governance Centre. justice reforms will be done drawing on the results of the Governance Assessments. assessment. Swati Mehta, UNDP Project of Access to Justice for Marginalized People in India. Conducting an The key objectives of the consultations include: assessment in India. • To collect information from supply and demand sides and on specific human rights issues; • To inform people about the legal framework and their rights; Research and Consultation in the Context • To empower disadvantaged people in order to of Legal Pluralism: the Case of Cambodia participate; and and Timor-Leste • To create room for discussion around common values and alternative solutions. The assessments in Cambodia and in Timor-Leste was initiated to support ongoing policy reform on justice. In Societal demand for justice is comprised of social needs Cambodia, there was a requirement from the Council related to conflicts, human rights violations and abuses of for Legal and Judicial Reform for a ‘survey’ for policy power. It is important to capture the actual demand for development on alternative dispute resolutsion (ADR). justice (current problems and conflicts filed to authorities) In Timor-Leste, support was needed to draft legislation and the potential demand, i.e. problems that people have on ‘traditional justice’. Rationales guiding the assessment not filed to any authority due to lack of awareness or lack were based on prior knowledge of lack of legal awareness of institutional availability. and the weaknesses of the formal justice system in Timor Leste. This section examines some of the lessons from The methodology adopted in both the Timor-Leste and both the assessments. Cambodia assessments included: • Desk Study; Before conducting the assessment, it was critical to ensure • Secondary Data collection; that all partners understood and agreed on the processes • In depth interviews; and objectives of the assessment. This includes the type of • Surveys; expertise required from the assessment team, the • Focus group discussions; and methodology for the assessment, consensus around the • Workshops at the local as well as national level, including idea of a process of research-action/ consultation process, validation workshops with the participation of all the ensuring that there is political will and national ownership actors including women, justice operators, human over the process, ensuring adequate people’s participation rights organisations, minorities, indigenous peoples, etc. in order to define the problem as well as find and implement solutions, identify how to address and The steps in the assessment process include: overcome time constraints and organize necessary 1. Establishing a political agreement to undertake an material and human resources. assessment; 36 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS 2. 3. Designing the assessment; First phase of visits; “ A process of consultation is critical in order ensure that the legislation responds to ” 4. Workshops ; the reality of the country and the needs 5. Systematization/ validation; and demands of the population. 6. General Proposals and consensus-making; 7. Further development (policy development and legislation drafting); and 8. Consultation. the main social problems and conflicts (the demand of justice) and the main responses available (the supply). It In Timor-Leste, given the weak penetration of the formal also gathered perceptions on the responses by the justice justice system, the Government approached UNDP for system (customary authorities, police, Directorate of lands support in drafting legislation that would recognise non- and property, mediators, courts). The consultation also state justice systems. The UNDP Justice System Programme facilitated a discussion on customary law in relation to and the Traditional Justice Sub-working group of UNMIT human rights and encouraged participants to suggest proposed a process of consultation on access to justice, proposals for the recognition of customary law and the customary law and local justice in order to elaborate establishment of local justice. guidelines for policy development and draft legislation. The main proposals related to customary justice that A process of consultation is critical in order ensure that the emerged from the consultations included the following: legislation responds to the reality of the country and the 1. Formal recognition of customary mechanisms for needs and demands of the population. conflict resolution as non-jurisdictional mechanisms 2. Recognition of customary law with limitations to The consultation process included: accommodate human rights, based on consultation 1. Field trips and interviews (October 2008); 3. Based on consultation, Timorese people have pro- 2. Decentralised workshops; posed to establish some limits to customary practices 3. Focus/Group consultation (with women, justice actors, related to: Human rights organizations); and a) Women’s rights including inheritance, forced 4. National consultation. marriages, obligation to tolerate a second wife and domestic violence The consultations focused on providing people b) The nomination of customary authorities to information on their rights. It then sought to identify eliminate the caste system Key findings from the assessment in Timor-Leste: Main social problems Main conflicts People seek out the following authorities in case of conflict Lack of economic means for Domestic violence Families families, food, water Lack of education opportunities Land conflicts Customary authorities (lia nain, at aldeia level) Lack of health services Juvenile gangs, local conflict Community authorities (chefe de aldeia, suco, conselho) Lack of roads, infrastructure HR violations: unresolved from the Local authorities (sub-district, district level) past (displaced people, etc.) Issues related to abuse of power & Police (each district. informal ways to respond) corruption District Courts (4/13 districts) (in a building process) Directorate of land and property (for mediation) 37 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS  c) The system of prohibitions and fines (tara-bandu 1. Answerability – require someone to justify what they and multa) are doing 4. Establishment of a commission for victims support at 2. Enforceability – something must be present to enforce community level the relationship 5. Capacity support to customary systems such as: 3. Transparency – access to information a) Training to refer cases to corresponding authorities b) Provision of advice to customary and community It is important to consider how the assessment can judicial authorities in relation to women’s and strengthen this at the country level. In terms of access to children’s rights justice, governance assessments can be seen as a means c) Awareness-raising on rights at the local level of oversight. 6. Establishment of community judicial tribunals 7. Competency to decide and enforce agreements or Do you start at the political or technical issues? decisions •Technical issues can include: 8. Application of simplified proceedings and delivery in – How big should the sample size be? local languages – Should we use both de jure and de facto indicators? – Which normative principles should we select? •Political questions can include: Including the perspectives of the poor – Who are the change agents on the ground? and disadvantaged in Access to Justice – What are the formal and informal incentive structures Assessments – What can country-led for reform? governance assessments offer? – Which actors have self-interest in pushing this agenda? The Governance Assessment programme is a 5 year programme (2008–2012) which includes country, Some issues to keep in mind include: regional and global activities. There is a programme • Civil society may be overrepresented in urban areas, and budget of $9.75 million (60% of budget to fund country dominated by men level activities: LDCs are priority beneficiaries) and is • Parliaments may be weak executed by the UNDP Oslo Governance Centre and overseen by a UNDP programme management board and It may be necessary to adapt the research methodology an external advisory committee. to address these constraints. Country-led governance assessments are initiated, The indicators identified for governance assessments implemented and sustained by national actors. Key can be revealing about access to justice issues. The factors are: following are examples of indicators that have been used • National ownership in governance assessments that could usefully inform • National capacity development justice programming in a particular context. • Alignment to national policy Gender-sensitive indicators: In the Asia Pacific region, support has been provided to •Disaggregated by sex – Are men and women equally Bhutan via the Support the Gross National Happiness aware of their rights to seek redress through the justice Commission in applying the Gross National Happiness system? Index in the planning exercise; in Indonesia by assisting •Specific to or targeted toward female or male sex – local authorities to monitor progress in 33 provinces What legal aid is specifically made available to women? using the nationally developed Indonesian Democracy •“Implicitly gendered” – No reference to sex, however an Index; and in Mongolia through promoting democratic issue that is of particular relevance to females or males, governance and human rights by assisting parliament in i.e. the number of reported domestic violence cases gauging progress on Millennium Development Goal 9. prosecuted in courts The governance assessments seek to incorporate the Pro-poor Indicators: perspectives of the poor and disadvantaged through the • Disaggregated by poverty status – Ratio of use of legal process (who is included in conducting the assessment) aid among people of low income compared to people and the methodology (gender-sensitive and pro-poor of medium or high income governance indicators). • Specific to the poor – Number of cases brought to trial that are initiated by poor households One of the goals of the process is to strengthen • Implicitly pro-poor – Coverage of local courts in rural accountability. Prerequisites for accountability include: areas • Chosen by the poor – Availability of free legal aid 38 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS It can be revealing to combine disaggregate indicators to make it more pro-poor and gender-sensitive. For instance, indicators can be the percentage of domestic violence cases reported from poorer districts that are prosecuted, compared with the percentage of domestic violence cases reported from wealthier districts that are prosecuted. “ • Broad Governance assessments can be seen as a means of oversight ” coverage of the questionnaire helps provide comparative assessments of access to justice regarding: different legal institutions, different geographical areas, different social groups, and differences in people’s Access to Justice Assessment in Vietnam perception over the years. • Update surveys help determine a linkage between The 2003 baseline survey entitled ‘Access to Justice socio-economic changes and those in access to justice. in Vietnam from People’s Perspective’ included 98 • Interviewing “users” (but not “service providers”) questions related to, variously, awareness of legal rights helps identify differences between the Government’s and knowledge of where to claim them; access to legal assessment and people’s perception of operations of information and institutions to protect their rights; and individual legal institutions. confidence and trust in the legal system – that it will be • Survey results help identify issues and areas of concern fair and effective. for further exploration in other projects. One thousand direct interviews were carried out in six Although at this stage the results of the assessment have provinces (urban, rural and mountainous) with the survey not been used by the government, the media published results disaggregated by compulsory criteria (occupation, them and was able to generate the attention of the public gender and ethnicity) and non-compulsory criteria on key justice issues. The new public administration (income, education and age). index being developed in Vietnam also includes justice components. In 2010, the survey was conducted again in the same location with the same questionnaire and methodology except for 14 extra questions added relating to changes Access to Justice Assessment, Sri Lanka of interviewee’s perception in the last five years, and 2008, UNOPS additional considerations for vulnerable groups. The access to justice assessment in Sri Lanka was not able The methodology of the survey was primarily focused on to be successfully completed. The challenges of working the quantitative, gathering data on numbers of people in a conflict environment, particularly when asking with particular opinions. The survey was focused on seemingly sensitive questions about justice and human disadvantageous groups while still surveying ‘professional’, rights, are significant. urban perspectives. • 65% interviewees were from the “working class” (farmers, Primary objectives of the survey in Sri Lanka included: workers and those without permanent jobs); and • To understand which officials / agencies people • 35% interviewees are civil servants, businessmen and approach to find remedies for their legal problems; professionals. • Document alternative or more informal structures and systems that individuals invoke to redress their This methodology was used for several reasons: problems; • The same methodology needed to be used to monitor • To understand people’s perceptions and understanding the progress from the 2003 baseline. of the institutions of the formal legal system (i.e. legal • The survey was already lengthy at 98 questions and aid, courts and mediation boards); it was thought that this was sufficient to measure • To identify legal problems commonly faced by people potential changes the way people access justice and at the local level; their perceptions of the process. • To identify legal problems commonly faced by the more • Perception based assessments are rare in Viet Nam and vulnerable persons in society; and this method of conducting access to justice assessments • Identify particular problems and discriminatory was the first of its kind in the country. practices that individuals face as they attempt to obtain assistance from institutions within the formal justice Advantages of using this methodology include: system. •Direct interviews help secure the independence and privacy of the survey while still facilitating The assessment included both qualitative and quantitative open discussions between surveyors and individual components. The quantitative portion included a interviewees. structured questionnaire and the qualitative portion used open-ended interviews and FGDs. While quantitative data 39 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS has the advantage of making statistically significant and reliable generalizations, however, it is limited in so far as it is not able to capture individual voices and the context of the individual experience. “ Appropriate technologies can be very useful in conducting assessments: by directly downloading the data into laptops for processing, ” practitioners can reduce data entry UNDP requested a special focus of the assessment in the north, east and estate areas and on particular vulnerable errors and ensure timely data input groups, namely female headed households, internally displaced persons (IDPs), and minority groups such as Veddahs, Kuravars, Burghers) in order to ensure that data was collected among these particularly disadvantaged Proportional sampling by ethnicity in all 22 districts (9.5% groups. Strategic sampling was also conducted focusing Indian/Estate Tamils, 25% Sinhalese, 26% Muslim, 30% on families with members in remand, families with Sri Lankan Tamil, 9.5% ‘vulnerable’. As much as possible, members abducted, persons born in India. The assessment the sample was split 50% men/women. At least 33% of was also attentive to multiple identities, for example: all of the DS Divisions in every district targeted (based widow, IDP, Tamil, who has a son in remand. on secondary data on demographics, income levels and poverty, conflict and displacement history). In terms of the research design, a review was conducted of secondary literature produced by scholars and activists District Level sample sizes included 225 interviews in on legal problems faced by minority communities and each district in the North and East and estate sector, IDPs in Sri Lanka. Regional experiences were also examined 200 interviews in border districts (Anuradhapura and and interview protocols from the experiences in Nepal Polonnaruwa), and 100–150 in other districts. and Cambodia were also drawn on. Several consultations were held with UNDP staff and inter-agency meetings to The sample sizes were based primarily on the 2007 census discuss the draft questionnaire and to incorporate further data on ethnicity (proportional sampling by district) E.g. information requirements. The refined draft of the Ampara (70 Sinhala; 40 Tamils; 95 Muslim; 20 other); questionnaire was presented to Ministry of Constitutional Batticaloa (160 Tamils; 50 Muslims; 15 other); Vavuniya (16 Affairs and Ministry of Legal Affairs for review. The Sinhala, 193 Tamil; 16 Muslims) questionnaire was then presented and discussed at four regional inception workshops in order to get feedback Households were found through “purposive random” and comments from human rights activists, lawyers, sampling targeting low income to low-middle income government officials were incorporated. areas/households (proxy indicators). The overall sample was done in 22 of 25 Districts (excluding Over-sampling took place in the North, East and Estate Jaffna, Kilinochchi, Mullaitivu). 3,858 households island Sector as the access to justice project wanted a strategic wide (2470 completed) were sampled including 68% in focus on minority groups and on conflict-affected areas, the North and East and Estate Sector and 32% elsewhere. including areas recently-recaptured from the LTTE by Sri Lankan Armed Forces. Questionnaire sections In terms of implementing the survey, the first step was to translate the questionnaires and train the enumerators • General warm up questions that present (12 enumerators were chosen, both male and female infractions / scenarios (everyone answers) and from all the main ethnic groups). Pre-tests were • Section for women only conducted in three districts over the course of four days and included all the main ethnic groups as well as estate • Separate sections for IDPs & Returnees workers. The questionnaire was then modified based • Section for estate sector workers on pre-test findings and a second round of training for the enumerators was held on the final questionnaire. • Section for landowners Work plans were finalized for the field work and training • Sections on documentation, sexual violence and was done on how to select households for the field child rights (everyone answers) interviews. Data Collection was done on Personal Digital Assistants (PDAs), which are small hand-held • Sections on perceptions and use of legal aid, computers. Appropriate technologies can be very useful court system, mediation boards (general and in conducting assessments: by directly downloading the personal experience) data into laptops for processing practitioners can reduce • Demographics data entry errors and ensure timely data input. 40 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Access to Justice for Marginalized People in India “ There is need to focus in a much sharper way on the mechanisms and ” processes of exclusion operating at all India is the largest democracy with a federal structure. stages within the justice system India’s judicial and legal system has many strengths including its constitutional and legal safeguards, its well- established institutions, a relatively independent and activist judiciary, a vibrant NGO sector and an independent media, and progressive laws, including recognition of Through this project a mapping of the informal and historical injustices, recognition of group rights, positive criminal justice systems was conducted. discrimination for marginalized groups including women, and right to information. However, judicial backlog leading The mapping of the informal justice system was to delays and limited access to justice for people is a undertaken by the Kurukshetra University, National challenge and it is necessary to strengthen Legal Services Centre for Advocacy Studies along with Institute for Para- Authorities and work closely with government and civil Legal Studies, and National Law University, Bhopal. The society partners. Judicial reform is a national priority. mapping of the criminal justice system was conducted by Multiple Action Research Group, Public Concern for Access to Justice by Poor and Disadvantaged People was Governance Trust, and Mahila Chetna Manch. an assessment supported by a partnership between National Judicial Academy (NJA), Department of Justice Some key findings include: and UNDP. The objective, among other things, was to get • Severe lack of legal knowledge; reliable data on disadvantaged people’s access to justice • Limited access to legal services available; through formal courts, to be used in policy development • Physical access to justice sector institutions, especially and corrective action. The assessment was focused on formal justice systems (police, prisons, prosecution and women, children, elderly, disabled persons and tribal courts) is limited due to distance and costs; and people. Research Methods and questions to be addressed • Vulnerable groups are reluctant to access the formal were developed through workshops conducted by NJA. system (particularly women) as the procedures to access them are too complex and are not comprehensible for The UNDP Pilot Project – Strengthened Access to Justice those who are illiterate. in India (SAJI) was established to carry out a justice sector diagnosis, identify entry points and support innovative The assessment focussed on both the supply and demand small pilots to identify good initiatives for replication. side and worked at the local level. It sought to build on and strengthen partnerships with state actors and civil society for improved access to justice. The assessments reviewed The Access to Justice Practitioner’s Guide can the mandate of the justice institutions/stakeholders vis- be useful in setting some of the parameters for à-vis the marginalized people and tried to bring out the developing an access to justice assessment. In gaps and needs so that the project can better target particular: capacity development interventions. • People’s trust in the justice System In terms of scope, the assessment reviewed: • Legal Protection of rights and remedies • State Legal Services Authorities; • State Judicial Academies; • Legal awareness • Marginalized People; • Legal aid • Civil Society Organisations and other Intermediaries; • Existing legal awareness and empowerment material; • Investigation and • Detention • Laws, policies and institutional structures informed through action research and studies. • Prosecution • Judicial Adjudication In terms of methodology, secondary literature survey, surveys, interviews, FGDs (formal and semi-formal), • Administrative Dispute Resolution case studies, review meetings and experience sharing • Informal and traditional dispute resolution workshops were used. The survey was meant to be a baseline survey targeting people belonging to the • Enforcement marginalized sections of the society, CSOs and other • Civil Society and Parliamentary Oversight intermediaries, Duty bearers. National and state level consultations to assess priorities of the stakeholders were 41 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS also held as part of the assessment. Some aspects of the processes of exclusion operating at all stages within the methodology included: justice system from filing of complaints and recording of • Needs assessment of State and District Legal Services statements to investigation, court proceedings, delivery Authorities – FGDs, interviews, secondary sources; of judgements and implementation of court orders. • Research Study on law school based legal aid clinics – Documenting these processes can be a first step to survey, FGDs, interviews, secondary sources; advocacy for understanding and sensitisation of personnel • Support Action Research – survey, FGDs, interviews, at all levels of the justice system. It is very important to secondary sources; and learn from the experiences of the Global South and to • Support to Innovative Projects to see what works and document and share information on processes so that we what does not – baseline and endline surveys by project can learn from each other (e.g. process of engagement partners. with national institutions of justice that are not open to review). The assessment can have an impact on many levels. By involving the justice institutions in the assessment and trying to capture their perspective, there is an Identifying Recommendations and increased ownership over the results of the assessment. Guidelines on Developing Access to Interventions such as capacity development strategies suggested to the Legal Services Authorities or training Justice Assessments for judges through State Judicial Academies on laws and issues relating to marginalized people are more likely to be adopted. The assessment also helps identify innovative Discussions were held in three working groups and replicable projects on legal aid, empowerment which sought to identify some general guidelines and awareness. It also helps to bring to the notice of and recommendations on designing and the government, lacunae within legislations and legal conducting access to justice assessments. provisions which are adversely affecting the rights and entitlements of the vulnerable sections. Bringing together different stakeholders – judiciary, Some Considerations for future assessments government departments and civil society – on the complex issues of access to justice is a challenging 1. Guidelines and scope of assessment task. Also, not many CSOs work in the area of access to justice, especially at local levels. It is necessary to build • Start with realistic objectives that are commensurate mechanisms for replication of successful interventions with resources; especially in order to upscale and increase state ownership. • Think through and remind oneself of the reasons and the target beneficiary (i.e. why and for whom the A key lesson from the assessment includes the need to assessment is being done); focus in a much sharper way on the mechanisms and • Be sensitive to the internal political context Scope of assessments Who conducts assessments Conducting assessments What do we explore? External Consultants Constraints and gaps in capturing What does the HRBA offer to conduct Local and external teams together realities assessments? Involving the community-community Qualitative and quantitative methods Whose access to justice? Selecting researchers, paralegals (issues of Different tools groups to serve neutrality, limitations on probing, Taking findings back to sites for Aims of assessments – programs, investment of time and money) validations projects, policy formulation and Time needed for assessment Selecting categories of people to reform, to ensure State accountability ensure inclusion Different types of designs for different Participatory approach aims and objectives Layers of partnerships Government Involvement – too little? Too much 42 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS • Choose and clarify objectives based on people’s • Media can be strong partners in sharing the results of priorities as identified by NGOs, government or public the assessment. In some cases partnership with the survey and feasibility upon given time-frame; and media may be frowned upon by the government, • Recognise that assessments can be incredibly while in others, sharing information on the results of important as an indication that the project responds to the assessment with the media may be a means of the community needs rather than donor priorities. In encouraging public pressure on critical issues many cases people consider it wrong that projects are • Storytelling and conversational approach to talking developed according to availability of funds determined about experiences when interviewing people and by donors. feeding them into the findings can be useful than going through a survey. This was the case in Sri Lanka where 2. Maximize partnership with government to people felt uncomfortable with structured questions. minimize consequences, while considering: • Including people like journalists in the assessment team can be useful to highlighting stories in the media on • Country’s specific context; particular issues. The Nepal assessment sought to bring • Governments endorsement as a way to ensure use of out stories on access to justice during the conflict by also data; including a journalist as part of the assessment team. • Identification of a partner/champion in the government that can implement results; and • Participatory approach as key principle: building local Developing Partnerships capacities while doing the assessment. 3. Use of methodology to capture realities by Discussions in this session were informed by following a general rule – involve local people presentations by the following: • Ensure a good translator for a successful involvement of Nicholas Booth, UNDP Vietnam. Moderator. the community in the assessment process; and • Engage additional actors in the assessment who can Kim McQuay, Regional Director for Law and Governance. Strategic Partnership Considerations in assist with more effective dissemination of assessment results, such as journalists and documentary filmmakers. Access to Justice. Taufik Rinaldi, Justice for the Poor Indonesia, 4. Focus on the quality rather than the World Bank. Developing Partnerships – Experiences quantity of the research sample from the Justice for the Poor Program, World Bank, Indonesia 5. Avoid making generalisations and ensure that the assessment is developed and Gemma Archer, UNDP Global Programme designed based on local realities on Accelerating Access to Justice for Human Development. UNDP Global Partnerships on Access • Avoid using the term toolkit in developing a guide to to Justice. access to justice assessments. The attempt to capture a set of best practices can obscure specificities. It will also be difficult to develop a universal approach and guideline. Strategic Partnership Considerations in • Instead, review assessments in the region with specific Access to Justice Assessment: The Asia case studies of various assessments. The case studies can Foundation’s Experience provide a rich and contextual discussion of key issues such as how to define objectives, ensure ownership, The Asia Foundation is committed to supporting access develop appropriate targets, tailor to the local context, to justice assessments as they are seen as a strategic analyse pros and cons of particular approaches, and program planning tools. The Asia Foundation often engage in partnership building. uses a combination of qualitative and quantitative methodologies and emphasizes robust empirical research 6. Use creative and innovative tools and – with a particular focus on refining understanding of channels the connection between access to justice, governance reform, poverty reduction: legal empowerment. A • For example, the use of PDAs for data collection, or critical element of the assessments is also local capacity Oral Wiki to access information. It would be useful to development. It is also important to not just think about identify innovative tools and feature them for future how an assessment is conducted but also to place assessments. findings and recommendations in the public domain 43 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS wherever possible. In terms of approach, it is useful to use a combination of approaches in developing an assessment – human rights-based and others. Some examples of assessments conducted by TAF include: • Formal access to justice assessment combining quantitative and qualitative components – Indonesia (2001) – Bangladesh (2007) “ Important factors to consider: • • • • Political environment Time constraints Resource constraints Scale and geographic scope and depth of reach • Specialty access to justice assessments • Quality and precision • ” – Bangladesh community-police relations (2004) Local partner capacity – ADB Legal Empowerment for Women and Disadvantaged Groups (2006–08) • Ownership and follow-up • Access to justice considerations as component of broader national perception surveys – Bangladesh national public perception surveys (2007–08) • Political leverage/policy reform – government, – Thailand (2009–10) political actors, civil society • Practical comparisons among countries that face like Some initial reflections on partnerships indicate different challenges and constraints and have good practices to types of partners, and core partners can include: share – development partners, government, civil society • Development partners – individually or in partnership • Raise confidence and expectations among with other international organizations (pool resources, individuals and communities that are denied equal avoid duplication of effort, greater policy leverage access to justice – absent which, positive changes may through strength and influence in number) go unnoticed or fall short of full potential • Host governments – critical buy-in, facilitation, and follow-up Assessment Steps can include: • Technical partners – lessons learned from experience in: •Framing the parameters – practical choices among – defining technical support needs a variety of options; taking account of political context, – selecting technical partners security constraints, and other considerations – accommodating the strengths and weaknesses of •Design – methodology, quantitative instruments, technical partners qualitative elements • Civil Society Organizations •Facilitation – practical access to key informants – Principal providers of community legal services and •Implementation other mechanisms that facilitate improved access to •Compilation, review, and analysis of results justice by vulnerable populations •Reporting and recommendations – Facilitate access to key informants •Dissemination of findings and recommendations •Creation of value-added – broader reflection These core relationships are especially important, as and knowledge exchange and sharing the country underlined in previous sessions, but there are also broader experience regionally and internationally complex of potential strategic partnerships that figure in •Follow-up – program activities, advocacy, monitoring planning, executing, and following up on access to justice change and strategic impact over time assessments. Some important factors to consider are: We conduct access to justice assessments for many • Political environment – core partnerships, facilitation, reasons: ownership, follow up • Development of program strategy – of benefit to • Time  constraints – at what point do valuable but multiple stakeholders and prospective partners complex partnership arrangements become overly • Baseline for measuring positive or regressive changes cumbersome? over time – multiple stakeholders and prospective • Resource constraints – how much partnership can we partners afford? • Key stakeholder engagement and ownership – • Scale and geographic scope and depth of reach – host governments, practitioners (those who address partnership may be essential (civil society) access to justice constraints) • Quality and precision – partnership may add value • Local capacity development – government, civil • Local partner capacity building – weighing time, society/academic institutions, technical specialists cost, and other considerations against positive impact • Education and advocacy – key stakeholders and • Ownership and follow-up – essential partnerships communities whose access to justice is at greatest risk (government, political actors, civil society) 44 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Partnership strategies can successfully bring together local networks. Below is a table that proposes some government and non-government actors to address areas of consideration in developing partnerships for particular issues and can be used to affect policy. access to justice assessments. Finally, it is important to Developing partnerships is part of the access to ensure that non-polished, accessible language is used justice assessment process. Civil society is also an to disseminate the findings of the assessment to the important partner as they offer a valuable access to grassroots level. Strategic Options and Considerations STEPS IN A2J PROSPECTIVE CORE PROSPECTIVE COMMENTS AND CONSIDERATIONS ASSESMENT PARTNERS ASSOCIATE PARTNERS Preliminary • Development Partner(s) • Government • Government participation and ownership Planning • Government Agencies Agencies from the outset of A2J assessment planning (Framing the A2J • Civil Society/ reduces the risk of government agencies • Civil Society/Academic assessment) Academic distancing themselves from the findings and Institutions Institutions recommendations at a later point. • Select Private • Civil society participation from the outset Sector of the planning stage adds greater depth of Informants (?) knowledge, understanding, and nuance. • Examples of local A2J assessment initiatives. Technical Design • Development Partner(s) • Government • Time, cost, and other efficiency considerations (methodology) (operational initiative) Agencies tend to place development partners and • Technical Specialists • Civil Society/ technical specialists in lead role. (survey research Academic • To what extent should capacity development specialists, other) Institutions considerations weigh in strategic partnership • Government Agencies considerations? • Civil Society/Academic Institutions Facilitation • Government Agencies • Civil Society • Government concurrence and facilitation • Civil Society is critical in certain working environments – for example, letters of introduction to local authorities; instruct public officials and agencies to cooperate as facilitators and informants. • Community legal service NGOs and other civil society organizations can play a key role in reaching key informant populations at the grassroots – drawing on trust relations, convening capacity. Implementation • Development Partner(s) • Technical • Time and cost considerations tend to place • Technical Specialists Specialists development partners and technical specialists • Government in lead role. • Government Agencies Agencies • Again, to what extent should capacity • Civil Society/Academic • Civil Society/ development considerations figure in strategic Institutions Academic partnership decisions, or weigh against Institutions downside risks? Continues… 45 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Continued from previous page STEPS IN A2J PROSPECTIVE CORE PROSPECTIVE COMMENTS AND CONSIDERATIONS ASSESMENT PARTNERS ASSOCIATE PARTNERS Compilation, • Development Partner(s) • Government • As above. Review, and • Technical Specialists Agencies • Civil society/academic institutions may make Analysis • Civil Society/ significant contributions in interpreting striking • Government Agencies (Quality Control) Academic results. • Civil Society/Academic Institutions • Development partners and technical partners Institutions tend to take the lead. • Efficiency and time and cost considerations versus capacity development Dissemination • Development Partner(s) • Government • To the extent possible, assessment findings • Government Agencies Agencies and recommendations should be placed in the • Civil Society/ public domain • Civil Society/ Academic • Partnership arrangements, political • Academic Institutions Institutions environment, sensitivity of results, and • Local Media other factors weigh in determining lead and • Local Media secondary roles in disseminating findings and recommendations of the A2J assessment. • Role of civil society in sharing findings and recommendations with vulnerable communities, and articulating their implications at the grassroots. Ensure that the findings and recommendations are shared in lay terms • Untapped potential of the print and broadcast media Value Added • Development Partner(s) • Government • Development partners have traditionally (Sharing Agencies assumed the role of refining A2J assessments knowledge • Civil Society/ as knowledge products of relevance beyond and experience Academic focal countries. more broadly, Institutions • Long-term capacity development, incentive comparing recognition, and future resource considerations county contexts) encourage broader government and civil society roles and contributions. Follow-up • Development Partner(s) • Government • Development partners and civil society (Program • Government Agencies Agencies have tended to be most active in follow-up Strategy, • Civil Society/ initiatives and post-assessment monitoring. • Civil Society/Academic Advocacy, Academic • Encouraging examples of government role. Institutions Implementation, Institutions Monitoring) Developing Partnerships –Experiences Corruption Research Study – The research objectives of from the Justice for the Poor Program, the Local Government Corruption Study were to World Bank, Indonesia document the dynamics of the local players in promoting the settlement of corruption allegation; to identify the In 2006, the World Bank in Indonesia conducted a local modus operandi of corruption as well as action and government corruption study of 2006 and then the strategy of the promoting actors in settling corruption research on non-state justice systems. cases, and to identify the opportunity for success and failure in handling corruption cases at local level. 46 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS “ In order to have a real impact at the local level, it is important to take on a longer time framework or the programme/ • Create a network in carried out the recommendation and follow up action; • Increase research capacity of local actors; and ” assessment, so that it can establish a • Ensure the do-able recommendation and follow up action. network and offer support to the network. The local government corruption study was successful In terms of methodology, qualitative research was in impacting at the national level and contributed to the conducted on 10 cases of corruption allegations in 5 development of i) Anti-corruption strategy for National provinces in Indonesia. Case studies were conducted by Community Empowerment Program (2007); ii) ‘Zero carrying out interviews with more than 200 respondents tolerance for corruption’ (2010); iii) National Strategy of and 13 Focus Group Discussions engaging more or less Access to Justice (2009); iv) Government program of 150 participants comprising of: community members, Mediation and Community Legal Empowerment (2008) law enforcers, corruption suspects and their legal advisors, in disadvantaged and conflict areas. However, the impact promoting actors and mass media. The data collection at the local level was insignificant. was conducted through the following methods: a) review on related documents such as media coverage, The Non-State Justice System study contributed to the NGO documentation and legal documents; b) in-depth development of joint programs of Non-State Justice interview and Focus Group Discussion. Systems in 5 provinces and the National Strategy of Access to Justice (2009). At the local level, Non-State Justice Partners for the study included ‘Local Players’ (NGOs, local Systems working groups were established in 5 provinces. anti-corruption coalition) in terms of designing, field work, analytical step, dissemination and the Attorney General There are several reasons to engage with others Office for the data analysis and dissemination. stakeholders in conducting an access to justice research. The reasons will provide guidance the ‘how’ and ‘when’ Study on Non-State Justice Systems – The 2004–2008 questions in developing partnerships. Study on Non-State Justice systems aimed to document the working of non-state justice at the village level, with a Partnerships need to be developed for practical reasons particular focus on social inclusion and the perspective of – to inform project design, to set an operational platform, the marginalized to understand the dynamics of change increasing research capacities, and to build networks. and how to translate them into a framework that embraces Involving a wide range of partners also help make sure the strengths and addresses some of the shortcomings of the sustainability or resources to carried out the findings/ non-state justice mechanism. recommendation forward. It drew on 34 ethnographic case studies collected from 5 Methodological reasons for developing partnerships provinces over an 18 months period and survey data from include to develop a new methodology/analytical Governance and Decentralization Survey. In addition, the framework. It’s worthwhile to engage with the ‘real data sources included comparative studies to research players’ while dealing with ‘objectivity’ issue carefully. It informal justice in Bangladesh and the Philippines. Data can also be time and cost consuming. collected from the research locations by the J4P team in cooperation with researchers from local NGOs and In terms of impact on policy, it is important develop universities. In total, 452 people were interviewed and 343 partnerships to make sure that the research/findings in attended verification workshops across the five provinces. line with government’s short term agendas as well as engage partners in all stages of the research for analytical There were 2 key partners for this research: Supreme and dissemination steps. Court and Local NGO/Universities. The Supreme Court participated in almost all stages of the research including field works and analytical works. The partnership with Accelerating Access to Justice for Human local NGOs/Universities was developed mainly during the Development – UNDP Global Partnerships field work and dissemination. on Access to Justice Partnerships matter because they: The UNDP Global Access to Justice Project to seeks to • Maximize the impact – the aim of developing foster global partnerships to promote access to justice. partnership for the research with government and In order to maximize the impact of the assessments, civil society organization is to have a better access of partnerships can play a critical role. It is important to first influencing the policy; clarify the following: 47 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS  • What is the impact you are seeking? (I.e. purpose of Some findings related to partnerships from the UNDP the assessment – what will happen with the findings – Justice global mapping/needs 2006–07 include the need broad/specific/programme /policy) for: • Who needs to be involved to achieve that • Dialogue building with stakeholders critical to ensure a impact? – ensure findings are nationally owned & comprehensive approach to justice programming; recommendations can be implemented in a meaningful • Coordination among donors & UN agencies; & sustainable way (mapping exercise) i.e. government, • Civil society groups critical for successful implementation; UN Agencies, dev. partners (including the donors), CSOs, • Capacity development on advocacy & coordination for research institutions, reform ‘champions’ , community legal reform; and • How to convene & coordinate partnerships?– engage • Solid understanding of local political dynamics. at the outset, working groups (formal & informal), trainings, workshops Global Thematic Programme for Accelerating Access to Justice for Human Development seeks to address current Partnerships should be structured around the objective of deficiencies in country justice reform programming by the assessment and part of the partnership process may linking formal legal sector reform initiatives with bottom include developing national/local capacity (especially up demand side initiatives. It supports partner countries in government) to coordinate & partner. It is important to designing and conducting justice needs assessments that consider partnerships for the whole programming cycle truly reflect the voice of poor and marginalized people through to M&E while being aware of challenges in and builds on their rights and needs in order to develop developing & coordinating partnerships. strategic plans and justice system reform programmes “ that are capable of providing access to justice for human development. How information is disseminated – the process – ” Support to access to justice assessments include capacity is important and can provide additional development for UNDP personnel & national partners information to feed into the analysis. to engage meaningfully with assessments (guidance, trainings, etc. including capacity development for governments to coordinate & manage assessments); Partnerships to support impact of assessments are support for access to justice communities of practice for being developed at the global level, including work UN, member states, dev partners, donors for balanced on developing tools/guidance to assist UNDP country approach to justice reform grounded on human rights offices & national partners to carry out access to justice and findings from an assessment of needs and priorities. assessments. Local engagement is fundamental but also look to regional & global opportunities to maximize Justice needs assessment are the entry point for holistic impact – draw on best practices, technical assistance, justice sector reform based on people’s needs – the email networks – how can global supplement? human rights-based approach to access to justice: Justice need Justice capacity Visioning Strategy assessments assessments prioritisation design Strategic sequencing planning Consultation and coordination process Programme Costing & Monitoring & Resource Programme design budgeting evaluation mobilisation development process Consultation and coordination 48 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS What does it all Mean: Analysis of Data and Findings Discussions in this session were informed by “ Lack of clear rational at the beginning of the assessment can result in some conclusions and recommendations that are more ‘generic’. This can also be due to insufficiently formulated background or ” presentations by the following: weakness in the analytical framework in the design or the analysis of the findings. Maria Bermudez, UNDP Timor Leste. Moderator. Ramani Jayasundere, UNDP APRC Access to Justice Assessments Consultant. Analysis of Data and Findings- Some notes from the mapping of value to discourse on concepts and approaches while assessments. providing practical recommendations to further access to justice and rights enhancement. Krishna Vellupillai, UNOPS Sri Lanka. Lessons from Implementing the Access to Justice Assessment in Sri While mention is made of computer systems and Lanka – Data Collection and Findings. indicators, it becomes difficult to capture the human worth each assessment brings in terms of knowledge, Chris Morris, formerly with UNDP Indonesia. experience, insights and ‘gut feelings’ that are brought Dealing with the Data: Indonesia Access to Justice into the analysis by team members and stakeholders. Assessment. Assessments follow complex systems of data analysis and it is difficult to capture that. Raquel Yrioyen Fajardo, Independent Consultant from Peru. Analysis and Impact of Participatory Can assessment reports capture the complexities of Action-Research Process. data analysis and provide guidelines or tools for future Raza Ahmad, Independent Research and assessments? If so, how? Policy Advisor from Pakistan. From Crisis to Crisis Governance and Rule of Law Assessments, Pakistan Lessons from Implementing the Access to Justice Assessment in Sri Lanka – Data Collection and Findings Analysis of Data and Findings – Some notes from the mapping of assessments The implementation challenges facing the access to justice assessment in Sri Lanka need to be contextualized. The review of 17 assessments as part of the draft paper It was conducted in an ethnically-charged civil war all arrive at comprehensive findings and conclusions. It is environment with a militarized government regime. difficult to derive at a uniform system of data analysis and Given the environment there was a high degree of distilling of specific findings and conclusions from the vast suspicion and caution about strangers and the safety of amount of information gathered. the assessment team, particularly the Tamil enumerators, needed to be considered. In some cases, the assessment There were several different tools used in some of the raised expectations from the UN and in others there was a assessments including conflict analysis, institutional complete ignorance of the UN. The complexity and length analysis, service analysis, dispute resolution analysis, of the questionnaire as well as the complex sampling also perception analysis, needs analysis. posed significant challenges and the absence of reliable census data/secondary data during research design didn’t In analysis of data and information, the value of make the process easier. Survey fatigue where the people assessments is in the linking of such analysis to the may have undergone sampling in other surveys was also rationale and background of each assessment, thereby a challenge that needed to be dealt with. providing direct links to questions, issues, challenges and obstacles identified in the background of and rationale for Access to justice must be considered relationally – in each individual assessment. terms of one’s physical location (e.g. living in the capital Colombo versus the conflict-affected district), gender, In some assessments, findings are general with little social status (e.g. married versus being widowed or conceptual analysis. Recommendations are obvious being displaced by the conflict), political party affiliation, without offering much guidance to implementers of ethnicity, and income. All of these factors can influence projects/policy makers. In others, the findings impact on the extent to which a citizen can obtain the assistance that theoretical thinking and conceptual approaches and add s/he is due from the country’s formal justice institutions. 49 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Notions and understandings of what is just and who defines what is just is a sensitive issue in a politicised environment, therefore, the research method and methodology must allow people to speak about their experiences in a safe environment and with confidence “ Access to justice must be considered relationally. Factors such as physical location, gender, social status, political party affiliation, ethnicity, and income all influence the extent to which a citizen can ” that their testimonies will be kept confidential. obtain the assistance that s/he deserves from Additional factors that affected the findings of the the country’s formal justice institutions. assessment were the use of the ‘do not wish to answer’ option and confusion over what is the law and what was thought ought to be the law. analyzing the data and identifying findings. For example, while open-ended questions can be useful, it becomes Given the conflict context, fear also played a large role on challenging to codify them. Also, the quantitative data what and how much people were willing to say. They were needs to be interpreted in light of the qualitative data often afraid to state negative aspects of people in power, and vice-versa in order to have a holistic understanding e.g. the police, which raises questions on the reliability of of the situation. In addition, age and language may have some of the responses. influenced the findings: 1) Since Bahasa Indonesia was not the first language for most of the respondents (only The use of purposive sampling (forgoing the ability to be for 22% of the respondents), misunderstandings could random, in the pursuit of analytical depth and logistical have been made in data collection; 2) As young people considerations) may have influenced the outcome and under the age of 16 were excluded from the sample, their findings of the study significantly. For example, there is views were not captured in the assessment. an artificial increase of certain numbers of people of a particular ethnicity within DS divisions for analytical and In terms of verification of qualitative data, it is important logistical reasons. to conduct monitoring visits throughout the field research. For this assessment, verification missions were It should also be noted that while the study was conducted conducted to randomly selected villages in each province at a household-level, they were essentially the views of upon completion of research, provincial seminars with the particularly person spoken to within the household, key stakeholders and a peer review was completed. therefore it may have differed from others in the family. It is quite a challenge to structure the analysis when there Regarding the data collected, it was disaggregated by sex, is over 2000 pages of qualitative data from provincial ethnicity, DS Division, status such as an internally displaced reports, plus survey data. There is always a tension person (IDP), returnee, estate workers, landowners, between depth and breadth, and the need for follow- and education level of respondent. Cross tabulations up research. Also, it is a challenge to figure out how to were done where necessary or seemingly interesting to disaggregate the survey data – By province, by district, by establish correlations. gender, but not by ‘disadvantaged’ or ‘non-disadvantaged’. There is also the difficulty of assessing real capacity gaps of formal justice actors (e.g. courts, police). A key question Dealing with the Data: Indonesia Access to is – if the final report can’t effectively make use of all of the Justice Assessment data, how can it safely be made available to others? Three key issues come up when analyzing the data. First Finally, in crafting realistic recommendations it is of all it is important to check and understand the reliability important get input from the field and the provincial and limitations of data (both quantitative and qualitative). teams while dealing with resource shortages. At the end, Secondly, it is necessary to figure out how to structure are recommendations really that important or is the data the analysis given the vast amounts of data and also deal the most important part. with the gaps in the data. Finally, drawing on the data and analysis, realistic and relevant recommendations need to be crafted. Analysis and Impact of Participatory Action-Research Process: Lessons from In order to check the reliability and limitations of the Timor-Leste and Cambodia quantitative data collection, as part of this assessment, there was an effort to back check the survey data – 10 Participatory action-research is part of a political randomly selected respondents per village by independent process that lets people arrive at a common understanding monitors (roughly 8 percent of the village sample) were of the situation including the needs, rights and the social done. However, there were still several challenges in changes that are necessary in order to achieve social justice 50 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS by improving access to justice. It involves political actors • Provide information – to inform people about the (State, customary, indigenous authorities, communities), reform process & their rights; social actors (NGOs, social organizations), technical actors • Provide opportunities to participate – to empower (UN, academic/ experts), allies: donors, sponsors, etc. disadvantage sectors to participate meaningfully and to promote interaction between actors; and The process includes multiple objectives including to: • Gather Feedback – to consult about needs and • Conduct Research – to obtain information to base proposals for further policy development, draft proposals for policy development and draft legislation; legislation, etc. Tools & Analysis Tools What Who When Why for National & Legal framework Researchers- shared At the beginning To identify what it is international with actors necessary to change in the normative framework legal arena Desk review/ All available Researchers – shared At the beginning To establish the • Statistic info information with actors level of institutional implementation & law • Institutional enforcement information • Judgements Preliminary visits/ • Local situation Research team At the beginning To set up the process of in depth interview • Perceptions consultation Survey • Social demand Researchers / experts Along the process To identify tendencies, for justice Shared with actors validate qualitative data • Supply and to support proposed changes Field study & Case- Situations & Research team Along the process To identify specific issues, study and observation Cases (in depth) contrast other sources Consultative • Social demand Different Actors Along the process • To be aware of the workshops: for justice situation; • Local • Supply of • To identify needs; • Sector justice services • To negotiate values & • National • Proposals priorities; and • Validation • To discuss proposals. Institutional Proposals related Institutions involved After consultative To analyse institutional consultation to institutional workshops behaviours and to make changes recomendations Expert consultation • General/ • Experts of different Along the process/ To provide specific specific areas by the end inputs, validate proposals proposals (considering best practices, comparative experiences, etc.) International Findings Actors By the middle/ end To validate findings workshops Comparative of the process / To encourage reforms experiences 51 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS From Crisis to Crisis – Governance and Rule of Law Assessments, Pakistan Assessments are often used as policy instruments, and this session will look at a few of the assessments in Pakistan including: • 2009 Government’s CERINA – Rehabilitation of Conflict- Affected IDPs; • 2010 Malakand Rule of Law (baseline) – Stabilization of a Crisis Zone; • 2009–10 Government PCNA – Larger Recovery and Stability; and • 2010 Government Post Floods Damage Needs and Recovery of the Marginalised Poor. The 2009 Government’s Conflict Early Recovery Initial The 2009–10 Government Post-Conflict Needs Assess- Needs Assessment (CERINA) – Rehabilitation of Conflict- ment comprised of four phases: (a) Pre-Assessment, (b) Affected IDPs used several means for data collection Assessment, (c) Finalisation and (d) Validation. including: • Data collected data from primary sources through a The Pre-Assessment Phase focused on capturing the survey of 500 households; voices of affected communities through consultations • Qualitative data gathered through interviews and that a) sought the opinions of a wide range of interlocutors several FGDs in IDP camps; affected by the crisis on the reasons that it developed • key informant interviews; and and on the potential solutions for resolving it; and b) • Secondary data. sought wider views across civil society and the Pakistani Administration on the drivers and solutions of the crisis. The 2010 Stabilization of a Crisis Zone baseline study focused on Assessing Rule of Law, Peace and Security The Strategic Objectives of the PCNA were to: in Malakand, NWFP. The study examined the state of • Enhance responsiveness and effectiveness of the State the infrastructure, level of training of justice sector staff, to restore citizen trust; quality of judicial decisions, quality of evidence collected • Stimulate Employment and Livelihood Opportunities; by the Police, timelines to gather and analyse evidence, • Ensure Provision of Basic Services; and capacity analysis of personnel (including gender related • Foster Reconciliation and Counter Extremism. data), citizen-law enforcement relations, state of the jirga system, and the state of legal services available. The process ensured that mixed sector teams that included government and multilateral agency were The study identified a significant public trust deficit where mobilised to undertake assessments in nine sectors – 90% paid bribes; in legal procedures involving judicial (including governance and security). These teams authorities, 78% paid bribes; in land administration 92%. assessed the main issues that drive crisis within each It also found only 24% percent of respondents said that sector, and identified peace building measures they “Completely agree” or “Agree”; whereas 55% stated that they “Mostly disagree” or “Completely disagree” to In finalizing the assessment, findings were shared with the the statement “Civil servants take into consideration the affected population, opinion-making stakeholders, Jirga opinion of people like me when deciding.” Another finding members and parliamentarians to validate the findings. was that there is popular support in pockets of Malakand division for the Taliban since they promise quick justice. This study faced many challenges since many areas were still in active crisis. It was also important to keep The baseline study helped in identifying critical priority in mind that the PCNA is a peace building strategy, not “ areas for Rule of Law support such as: • Capacity of courts to provide effective and timely justice services; International development agencies often • Access to justice, legal aid and representation; conduct assessments for their own programming. • Public safety and security; Ownership, being cyclical and fluid, depends • Formal – Informal justice debate; • Policy shifts required; and on the individuals and those in power and ” • Non-court grievance redress – Legal aid. that’s why the principle for the national and sub-national ownership as gateway is valid. 52 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS as a development plan. Peace building is transformative and the ability of the government and communities to engage in behaviour change is a significant challenge. Other challenges identified by the study include lack of opportunities and the situation of women. This study was conducted in a complex environment which compounded the challenges in implementing the study. Some reasons for the added complexity of the assessment included the following: a) four systems of governance, b) the social contract had broken down, c) there were competing ideologies, d) physical visits were limited and e) the surveys were ‘questionable’. 2010 Government Assessment on Post-Floods Damage Needs and Recovery of the Marginalised Poor sought to identify the physical damages to Governance Infrastructure as well as ‘indirect losses’ such as state capacities and citizen entitlements. The assessment adopted a citizen focus looking at issues such as land rights (e.g. of tenants and sharecroppers), dispute resolution, identity and legal rights, voices of the marginalised (e.g. communities living in riverbeds). It also sought to examine citizen-state engagement looking at issues around formal dispute resolution, grievance redress, essential to link the assessment to policy in order to ensure transparency in reconstruction, law enforcement, and that policies are developed based on the realities and public safety. findings from the assessments. Finally, one of the biggest challenges is donor coordination – which is very necessary Based on the assessment, a recovery framework was in conducting assessments and developing policies. developed which included: 1. Building sub-national capacities; 2. Ensuring that public safety; How can it make a difference: Advocacy 3. Securing citizen entitlements and rights; and and Impact on Policy and Programming 4. Enhancing transparency & community oversight. “ Discussions in this session were informed by Exclusive government ownership could presentations by the following: weaken power of local customary authority. R. Sudarshan, UNDP Asia Pacific Regional Centre. Ownership depends on the change that is Moderator. aimed for as the objective of the assessment. If the goal is to have the government or any Ahjung Lee, Acting Programme Manager, UNDP ” other stakeholder committed to a certain Indonesia. Life after the Access to Justice Assessment: Outcomes of the UNDP Access to Justice assessment objective, then they have to be on aboard. on programming, national policy, and development aid in Indonesia. From all these assessments, some critical lessons can be Aisha Shujune Muhammad, Judge at the Civil drawn. First, it is crucial to have national and sub-national Court Maldives. The Way Forward: Access to Justice ownership of the assessment not only in conducting Assessment in Maldives. the assessment but also take forward the findings and recommendations. Timeliness is another issue, including Eric Lampertz, UNDP Cambodia. Access to Justice unrealistic deadlines for conducting assessments which Assessments and the Reality of Programming in may compromise on the quality. When conducting Cambodia’. assessments, particularly in difficult and complex Marlon Manuel, Alternative Law Groups Inc. situations such as conflict, it is important to have a flexible Assessments as Advocacy. approach and tools as well as inventive methodologies. It is 53 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Life after the Access to Justice Assessment: Outcomes of the UNDP Access to Justice assessment on programming, national policy, and development aid in Indonesia’ “ Access to justice assessments require considerable resources in terms of time, money, and human resources. However, in the Indonesia experience, these assessments are worth the costs and can make lasting contributions when supported ” Assessment to Justice Assessment in 5 by the host government and directly linked Provinces (2004–5) to the programme/project development. Between 2004 and 2005, UNDP Indonesia and BAPPENAS undertook an extensive and participatory needs assessment on access to justice in the five post-conflict at the grassroots level was designed to raise legal/human Indonesian provinces of North Maluku, Maluku, Central rights awareness and empower people/communities Sulawesi, Southeast Sulawesi and West Kalimantan. This to demand their rights realization from responsible assessment was born out of the increasing recognition authorities. Furthermore, in line with the recommendation that access to justice was a necessary condition for peace of the assessment to provide community-based legal and development, especially in poor and post-conflict aid and other legal services through the civil society, settings, and was specifically aimed to inform the design the Project funded and strengthened civil society of future projects on access to justice to be implemented organizations (CSOs) and community paralegals so that by UNDP-BAPPENAS. the vulnerable and marginalized would be able to obtain legal assistance when they needed it. The LEAD Project The assessment consisted of over 700 interviews, 200 also supported the provision of pro-bono legal services. focus group discussions (FGDs) and surveys of nearly At the macro level, the LEAD Project supported national 5,000 vulnerable and marginalized persons. It included and subnational justice sector reform efforts dedicated to an examination of the difficulties they experienced in improving access to justice, in line with the assessment’s accessing justice; a review of the justice-oriented services recommendation. available to them; and their justice-related priorities. The Assessment Report identified a list of priority justice With this design, the LEAD Project has successfully issues (e.g. access to government services and assistance; increased access to justice in Indonesia over the past four ownership and management of land and natural years. At the local level, LEAD’s interventions, particularly resources; gender violence and discrimination, etc.), the through grant-making to CSOs, have made it possible challenges impeding access to justice in the context of to mobilize community-based paralegals to assist the these issues, as well as recommended methodologies to poor; increase the legal awareness and legal capacity of address them. marginalized and disadvantaged communities; improve local government services through the development Out of the findings of this assessment, the Legal of minimum service standards; enhance the system Empowerment and Assistance for the Disadvantaged of Integrated Services for Women and Children; and (LEAD) Project (2007–11) was launched by UNDP- establish joint complaint handling mechanisms for land BAPPENAS, with the overall aim to increase access to and natural resource disputes and grievances. justice, especially with regard to the most vulnerable and marginalized groups, through the combination of a civil At the national level, the LEAD Project provided policy society grant-making system and policy advocacy. advice and technical support to the Government of Findings of the assessment informed the objectives, Indonesia in the participatory development of the National priorities, strategies and architecture of the LEAD Project, Strategy on Access to Justice, which involved consultations and also shaped its four thematic sectors: (1) Land and with over 600 stakeholders from all 33 provinces. The Natural Resources, (2) Justice and Gender, (3) Local Strategy was launched in 2009, and has been integrated Governance (e.g. minimum service standards for health into the National Mid-Term Development Plan for 2010– and education), and (4) Legal Aid Services. Due to limited 2014 as well as Presidential Instruction No. 3/2010 on availability of funding, the project was implemented in Equitable Development. During the development of three of the five assessment provinces, namely North the National Strategy, the findings of the initial Access Maluku, Central Sulawesi and Southeast Sulawesi. Having to Justice Assessment were also used to inform the the extensive assessment underlying the LEAD Project analyses and recommendations. The implementation of design assisted in the promotion of and resource the National Strategy is expected to strengthen access mobilization for the LEAD project from the donors, UNDP, to justice in a comprehensive way, thereby contributing as well as the government and the civil society. to bottom-up economic development, strengthened rule of law, and empowerment of poor, disadvantaged, Based on the assessment finding that community legal vulnerable, and marginalized people in Indonesia. awareness remained low in target areas, the LEAD Project With this development of the National Strategy, many 54 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS donor-supported programmes and projects have been also developed and launched in recent years. As a result, “access to justice” became a mainstreamed language and became the subject of large-scale development cooperation as well in the spirit of national ownership and support to national priorities and policies. “ Advocacy and ownership is critical for the assessments to have an impact and it is important to explore innovative ways to advocate for change – one page summaries, documentaries, photographs and other forms can be used as advocacy tools to move beyond reports and statistics of assessments to ” Access to Justice Assessment in Aceh capture the stories not just for the development (2006–7) agencies but to empower the communities. The people of Aceh suffered a 30-year-long conflict and the 2004 tsunami, which together killed more than 200,000 people and devastated the lives of another million. In response, UNDP Indonesia with BAPPENAS Conclusion and Recommendations conducted a comprehensive Access to Justice Assessment in Aceh between 2006 and 2007 and found a Access to justice assessments require considerable range of challenges that constrained the ability of formal resources in terms of time, money, and human resources. and informal justice providers to handle grievances However, in the Indonesia experience, these assessments effectively. According to the assessment, a majority of are worth the costs and can make lasting contributions Acehnese preferred the informal justice mechanisms when supported by the host government and directly linked available in their communities over the formal justice to the programme/project development. system to resolve their disputes. At the same time, the informal justice system had various challenges, such as It has been almost 7 years since the initial assessment, lack of knowledge and capacity of the informal justice and impressive, country-wide progress with regards to leaders, absence of guidelines and common standards, access to justice has been made. There is now a National discrimination against women and other vulnerable Strategy on Access to Justice and many other similar groups, ambiguity in jurisdictional divisions with the programmes sponsored not only by UNDP but other formal system, and insufficient accountability safeguards. development agencies. Based on the experiences, best Therefore, the assessment recommended engaging with practices, and lessons learned from the LEAD Project the informal justice system in Aceh to improve the quality and the Aceh Justice Project, UNDP and BAPPENAS are of justice delivered to people in the communities. currently preparing to launch a new umbrella project on access to justice under the name of Strengthening Access Based on these findings, UNDP Indonesia implemented to Justice in Indonesia (SAJI). During the development the “Adat (customary or informal) Justice Enhancement of this new project, the final reports of the two initial Component” as part of the Aceh Justice Project (2007–11) access to justice assessments were revisited, and new in partnership with the Aceh Customary Council (MAA). staff in the UNDP offices continue to refer to these initial The project developed and distributed the Informal studies for contextual understanding of the situation in Justice Guidelines, and trained thousands of informal Indonesia. The findings from these assessments continue justice practitioners (including some 500 female leaders) to contribute to UNDP’s knowledge sharing and project on these guidelines and case management. The Guidelines development. and trainings have clarified the jurisdiction, processes, and actors of the informal justice system while fostering At the same time, it is regrettable that the incredible respect for human rights principles in culturally sensitive amount of qualitative data and real life stories that ways. For UNDP and BAPPENAS, working to improve the emerged during the research processes were merely informal justice systems is not intended to diminish the reduced to a paper-form final report which faced the importance of the formal justice systems. Rather, it has inevitable constraints of editing and simplification. been carried out based on recognition – as confirmed by Had there been alternative forms of capturing the the assessment – that most people in Aceh preferred and knowledge and data – e.g. documentary, picture-story used this system, and thus we could not increase access to books, journalistic articles, topical publications, etc. – the justice in the target areas without improving the informal assessment findings could have been better utilized for justice system. Indeed, the Access to Justice Assessment public education on access to justice issues. Thus, it is in Aceh played a critical role in developing an innovative recommended recommend that creative approaches and and successful programme on informal justice in Aceh greater efforts be undertaken to capture and utilize the that was supported by strong ownership from the local real life stories and rich data from the research processes institutions and communities. in forms beyond a printed final report. 55 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS The Way Forward: Access to Justice Access to Justice Assessments and the Assessment in Maldives Reality of Programming in Cambodia The Access to Justice Assessment in the Maldives is being After the access to justice assessment in Cambodia, the undertaken during a unique period in the Maldives, where initial access to justice programme was supposed to involve: the country has recently adopted a new Constitution 1. Human rights database development; in August 2008, which stipulates a two-year transition 2. Support to Official Gazette; period. This transition period poses challenges for all 3. Publication of Judicial Decisions; and branches of the government. 4. Promoting alternative dispute resolution. “ The Access to Justice Assessment in Maldives is expected to: • Provide baseline information on public confidence in The experience from the assessment the justice system; • Provide insights into citizen’s awareness of the justice demonstrates the importance of national system and to access to justice; partners to be involved in the assessment • Identify the knowledge base of duty bearers; so that results from the assessment can go ” • Identify the challenges and obstacles faced by duty beyond UNDP and donor organizations, and be bearers; mainstreamed into a national plan of action. • Provide information related to legal and rights awareness to survey communities; • Serve as an avenue for policy discussions, sensitization and recommendations for informing policy, access to Initial implementation design was as shown on the top of justice and justice sector reform. the next page. Preliminary results of the assessment will be available However, due to various challenges including the lack of shortly. In the meantime, experiences in conducting the ownership and commitment from the government, the survey have shown that there is a need for: programme ended up being able to undertake only the • Increased understanding and involvement of last component, namely “promoting alternative dispute government actors in the assessment; resolution.” As a result, programme for the period of • Awareness-raising programme for the public; 2007 to 2010 had to be re-formulated to implement the • Capacity development of institutions to design following activities: appropriate modalities of service provision for rights- • Establishment and capacity development of “Commune holders; to pay a greater attention to women’s issues; Dispute Resolution Committees”; and to establish new programmes such as legal aid; • Establishment of legal resources centres; • Training of duty-bearers; and • Legal aid and representation, with a focus on women • Increased coordination among various institutions and indigenous people; involved in the assessment. • Village discussions on domestic violence issues; • Advocacy for the recognition of indigenous people’s Furthermore, the experiences thus far in the Maldives rights and customary law; and shows that future planning and implementation of an • Convening of “Peace Table Forums”, which is a dialogue access to justice assessment should not comprise the between traditional leaders and local government principles of equality and non-discrimination and should authorities on matters of community access to justice further incorporate experiences of people from various socio-economic backgrounds and seek greater public With this new design, the programme implementation outreach as well as better coordination and cooperation structure also had to be revised as shown opposite. among the actors. The project made good results on the ground for the The experience from the assessment demonstrates the beneficiaries. Nonetheless, it suffered from various importance of government’s role in enhancing access to challenges such as government ownership, conflicting justice and points to the need for greater government interests of implementing partners, high staff turnover, involvement in the access to justice assessment, so that power dynamics among stakeholders, differences the programme that results from the assessment can go between the objectives of the government and those beyond UNDP and donor organizations, and be of development partner, as well as sustainability of mainstreamed into a national plan of action. results. It shows that while access to justice assessments can provide a good basis of programming, the realities of programming and implementation are inevitably influenced by the local dynamics. 56 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Initial Project Executive Group implementation PCB/CLJR, UNDP, Supreme Court, Ministry of Justice, Ministry of Interior, Reps of design CLJR, NALDR, CAR, OG and PMU Project Assurance UNDP National Project Director PMU Program Assistant Project Manager UNDP UNDP Project Group Manager Project Group Manager Project Group Manager Project Group Manager Rights Awareness Official Gazette Judicial Decisions ADR PMU Council of Ministers Supreme Court Ministries of Justice and Interior Project Group Assistant Project Group Assistant Project Group Assistant Project Group Assistant PMU Council of Ministers Supreme Court Minister of Justice Revised Project Executive Group implementation design ADR Project Board Chair: H.E. Sum Manit, CLJR Minister of Justice Senior Supplier: UNDP H.E. Ang Vong Vathana Beneficiaries: Ministry of Justice, Project Assurance Ministry of Interior Sok Narin, UNDP Ministry Focal Point National Project Director Dr. Phov Samphy H.E. Suy Mong Leang, PMU/CLJR Project Manager Management Support Koy Neam Project Advisory Team ADR Project Group Finance/Admin Assistant PG Head: Sok Bora, MoJ Muny Vireak, MoI Field Technical Expertise Provisional Office Women Affairs Maison de la Justice (20 districts) District Office Women Affairs Commune Dispute Commune Women Focal Person Resolution Committee (60 communes) Village Facilitators (112 villages) 57 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS Assessments as Advocacy Tool in the Philippines “ The access to justice study showed capacity gaps, rather than just problems and needs, and confirmed the value of legal education ” Alternative Law Groups (ALG) is a coalition of twenty legal programs and litigation support to strategic resource organizations operating nationwide providing cases for the poor and the marginalized. developmental legal support to poor and marginalized groups and communities in the Philippines. It uses the law and legal resources to protect and assert rights and undertakes advocacy for policy reforms. ALG members’ operations cover a wide area of concerns involving justice The study was also published and widely disseminated issues of the marginalized sectors of the Filipino society, in hard copies, CD format, as well as through the ALG including: website. • Women; • Workers (domestic and migrant); The access to justice study showed capacity gaps, rather • Farmers; than just problems and needs, and confirmed the value • Fishermen; of legal education programs and litigation support to • Children; strategic cases for the poor and the marginalized. As • Urban Poor (informal settlers); such, the access to justice study has contributed to ALG’s • Indigenous Peoples; endeavors on a number of issues, such as: 1) Identification • Muslim communities; of justice problems, not only in terms of court systems • Persons Living with HIV/AIDS; and and judicial processes, but also real cost issues and • Persons with Disabilities. lack of capacities of the poor; 2) Legal empowerment and paralegal development activities; and 3) Capacity For these target groups, the ALG members undertake development for access to justice. various activities such as: • Legal education &paralegal development; Furthermore, the access to justice study contributed • Advocacy for policy reform; to ALG’s programming in the upcoming years. For • Direct legal services and test case litigation; and example, ALG now manages the Environmental Defense • Research and publications. Program (EnDefense), which provides funding support to community-led litigation activities for the protection of The Access to Justice Assessment in the Philippines the environment. Overall, the assessment has contributed (2007–2008) was undertaken as part of the Justice Reform not only to the work of ALG in the Philippines but also Initiatives Support Project (2003–2008) in partnership to similar organisations working on the access to justice between the ALG and the Philippine Supreme Court. With issues in other parts of the world as well. funding support provided by the Canadian International Development Agency (CIDA) through the National Judicial Institute (NJI) of Canada, the study was conducted Closing of Access to Justice Week by the Social Weather Stations (SWS), which is Philippine’s leading research institute on subjects of quality of life, In conclusion to the last working day of the regional public opinion, and governance. consultation, Ms. Pauline Tamesis, the Practice Team Leader for Democratic Governance and Coordinator for Findings of the access to justice assessment in the Asia Regional Governance Programme, thanked all the Philippines were presented to various forums including: participants for their contributions to a successful Access • JURIS Research and Technical Studies Committee; to Justice Week in Bangkok, Thailand. All participants • ALG General Assembly; shared their commitment to access to justice, and looked • JURIS Project Steering Committee, chaired by the Chief forward to sharing more of their experiences in the future. Justice; and • Donors’ Forum on the Impact of Social Justice and Human Rights Legal Programs on Poverty Alleviation, Good Governance and other Development Goals. 58 PART II: CONDUCTING ACCESS TO JUSTICE ASSESSMENTS  Annex 1: Access to Justice Week Part I – Non-State Justice Systems: Principles and Practices Symposium – Agenda Day 1 –Monday 4 October, 2010 8:30–9:20 Session I – Introduction Welcome: Pauline Tamesis, Governance Practice Leader, UNDP Asia-Pacific Regional Centre Keynote Speaker: Marc Galanter –Professor of Law Emeritus, University of Wisconsin 09:20–9:40 Session II – Engaging with Non-State Justice Systems: A Conceptual Framework Erica Harper, Senior Rule of Law Officer, International Development Law Organisation 9:40–10:10 Session III: Human Rights Issues and Reflections on Research – Vijay Nagaraj, Research Director, International Council on Human Rights Policy Discussion 10:10–10:30 Break 10:30–11:30 Session IV – Risks ‘The National Institutionalisation of a Local Justice System: A failed experience from Burundi’ Dominik Kohlhagen – Institute of Development Policy and Management, Univesity of Antwerp, Belgium Discussion ‘Quasi-formal justice forums in India: Issues of Gram Nyayalayas’ MenakaGuruswamy – Attorney, Supreme Court of India. Discussion 11:30–12:45 Session V – Gender Lead Discussant: Usha Ramanathan, Independent Law Researcher ‘Increasing Gender Justice through non-state means in Pakistan: The Gender Justice Through Musalihat Anjuman Project’ Hamid Afridi, National Project Manager, GJTMA Project Discussion ‘CEDAW Permeation in Mahila Panchayats and Nari Adalats’ Tamara Relis, Research Fellow, London School of Economics and Assistant Professor at Touro Law School, New York Discussion 59 ANNEX 1: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – AGENDA  12:45- 13:30 Lunch 13:30–15:45 Session VI: Indigenous Peoples Lead Discussant: Chandra Roy, Regional Indigenous Peoples’ Programme ‘Customary Practices of Indigenous Peoples in Northeast Cambodia: Working with Peace Tables and documenting customary practices’ Sopheap Yin, Programme Advisor, Cambodian Indigenous Youth Association Discussion ‘Melding Indigenous Methods and Mediation In Melanesia: Lessons from a customary justice intervention in Bougainville’ Naomi Johnstone, Research Counsel, Chief Judge’s Chambers Waitangi Tribunal, Māori Land Court Discussion 15:45–16:00 Break 16:00–17:00 Session VII: Non-State Justice Systems in Contexts of Socialist Legality Chair: Chandra Roy ‘Rethinking the Role of Customary Law in Dispute Resolution among Highland Communities in Viet Nam’ Trong Dam Tuan, Social Policy Ecology Research Institute Discussion ‘Mapping Customary Practices: UNDP Experience in Lao PDR’ Laurent Pouget, Legal Programme Specialist, UNDP Lao PDR Discussion 17:00–17:30 ‘Oral Wiki: A Phone Archive for recording case decisions in Informal Justice Systems’ Cindy Jeffers, Oral Wiki Demonstration and Discussion 17:30–17:40 Overview of key issues Facilitator: Erica Harper Day 2 –Tuesday 5 October, 2010 8:30–8:35 Brief welcome back – Facilitator 8:35–9:15 Session VIII: Designing Strategies ‘Designing Engagement Strategies: Lessons from Seven Countries’ Deborah Isser, Senior Rule of Law Advisor, United States Institute of Peace Discussion 9:15–9:45 Session IX: Traditional Actors in New Councils ‘Developing a Code of Conduct with the Aceh Adat Council: Lessons from the Aceh Justice Project’ Ahjung Lee, Acting Programme Manager, UNDP Indonesia Discussion 9:45–10:00 Break 60 ANNEX 1: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – AGENDA 10:00–11:30 Session X: Practices in the Interface of State and Non-State Justice Systems ‘State Recognition of Traditional Justice Systems’ Devasish Roy, Chakma Raja and chief of the Chakma Circle, Chittigong Hill Tracts; Advocate at the Supreme Court of Bangladesh; Indigenous Expert Member to the UN Permanent Forum for Indigenous Issues (2011–2013) Discussion ‘The Role of Paralegals in Developing the Interface Between State and Non-State Justice’ Tiernan Mennon, Senior Project Manager, Legal Empowerment of the Poor, Open Society Institute Discussion ‘Participatory Consultations for Constitutional Recognition of Non-State Justice Systems in Timor Leste: Involving non-state actors in drafting procedures’ Raquel Yrigoyen Fajardo, International Institute of Law and Society Discussion 11:30–12:00 Session XI: Multiple State and Local Justice Hybrids in ‘Special Areas’ of Pakistan ‘Multiple State Systems and the Case for Non-State Justice Solutions in Pakistan’ Osama Siddique, Department of Law and Policy, Lahore University of Management Sciences Discussion 12:00–13:00 Lunch 13:00–13:30 Session XII: The Role of Non-state Justice Systems in Afghanistan: Challenges and Opportunities in Context Chair: Sudarshan Abdul Majid Ghanizada, Head of Civil Law Unit, Ministry of Justice of Afghanistan Laila Langari, Programme Officer, Education and Training Centre for Poor Women and Girls of Afghanistan (EWC) Discussion 13:30–15:45 Session XIIb: The Role of Non-state Justice Systems in Afghanistan: Challenges and Opportunities in Context – Cont. Chair: Sudarshan ‘Understanding the Political Economy of Customary Organisation to Better Inform Interventions for Local Self-Provision’ Jennifer Brick Murtazashvili, Assistant Professor, Graduate School of Public and International Affairs, University of Wisconsin Discussion ‘Raising Awareness of Community and Religious Leaders in Human Rights: Experiences from Afghanistan’ Taguhi Dallakyan, Consultant and Analyst, former UNDP Afghanistan Discussion ‘ Legal Pragmatism and Rights Protection in Customary Legal Mechanisms in Afghanistan’ Jasteena Dhillon, Visiting Scholar, Harvard University Discussion -Plenary- 61 ANNEX 1: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – AGENDA  15:45–16:00 Break 16:00–17:30 Session XIII: 4 Breakout Groups – Defining Principles. Based on discussions of the last two days, groups will discuss and nominate 6 principles of engagement from their own experiences and what we have heard. Group Rapporteurs – • Allison Moore, Open Society Institute • Jennifer Brick Murtazashvili, University of Pittsburg • Dominik Kohlhagen, University of Antwerp • Tamara Relis, London School of Economics Day 3 – Wednesday 6 October Working Group Session on Afghanistan 09:00–10:00 Session XIV: Rapporteurs present back to the group Each rapporteur has 10 minutes to report back from their group Brief discussion 10:00–10:40 Session XV: Reflection on Proposed Principles (40 mins) Chair: Oliver Mendelsohn, Emeritus Scholar, La Trobe University • Marc Galanter • Erica Harper • Vijay Nagaraj • Deborah Isser 10:40–11:00 Break 11:00–11:45 Session XVI: Plenary Response to Panel Facilitator: Oliver Mendelsohn Plenary Discussion 11:45–12:00 Session XVII: Next Steps 12:00–13:00 Lunch After 13:00 Participants fly from Bangkok Afternoon free for bilateral meetings and enjoying Bangkok 62 ANNEX 1: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – AGENDA  Annex 2: Access to Justice Week Part I – Non-State Justice Systems: Principles and Practices Symposium – Participants List – 4–6 October, 2010 Non-State Justice Systems: Principles and Practices Symposium Name Organisation Contact 1 Hamid Afridi Project Manager, Gender Justice Through hamid.afridi1@gmail.com Musalihat Anjuman Project, Pakistan 2 Masood Amer Assistant Country Director (Governance), UNDP Masood.amer@undp.org Afghanistan 3 Gemma Archer UNDP New York Gemma.archer@undp.org 4 Sajida Awan UNDP Pakistan Sajida.awan@undp.org 5 Aparna Basnyat Human Rights Capacity Development Aparna.basnyat@undp.org Specialist, UNDP Asia-Pacific Regional Centre 6 Maria Bermudez Senior Justice Advisor, UNDP Timor Leste Maria.bermudez@undp.org 7 Sundeep Bista Access to Justice Project, UNDP Nepal sundeep.bista@a2j.org.np 8 Johanna Cunningham Legal Empowerment Asia Partnership (LEAP) Johanna.cunningham@undp.org Facilitator, UNDP Asia-Pacific Regional Centre 9 Taghui Dallakyan Consultant and Analyst, Canada msrur@yahoo.com 10 Dam Trong Tuan Social Ecology Research Institute, Viet Nam dttuan@speri.org 11 Jasteena Dhillon Visiting Scholar, Harvard University jasteenadhillon@yahoo.com 12 Raquel Yrigoyen Fajardo International Institute on Law and Society, Peru raquelyf@alertanet.org 13 Marc Galanter Professor Emeritus of Law and South Asian msgalant@wisc.edu Studies, University of Wisconsin- Madison 14 Abdul Majid Ghanizada Head of Civil Law Unit, Ministry of Justice, Afghanistan 63 ANNEX 2: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – PARTICIPANTS LIST – 4–6 OCTOBER, 2010  15 Gu Qing Programme Manager, Democratic Governance Qing.gu@undp.org 16 Menaka Guruswamy Attorney, Supreme Court of India menaka@post.harvard.edu 17 Erica Harper Senior Rule of Law Officer, International eharper@idlo.int Development Law Organisation 18 Socheath Heng Assistant Country Director, UNDP Cambodia Socheath.heng@undp.org 19 Deborah Isser Senior Rule of Law Advisor, United States disser@usip.org Institute of Peace 20 Cindy Jeffers Distance Lab, United States cindy@cindyjeffers.org 21 Naomi Johnstone Research Counsel naomi.johnstone@justice.govt.nz Chief Judge’s Chambers Waitangi Tribunal, Māori Land Court, New Zealand 22 Dominik Kolhagen Institute of Development Policy and Dominik.Kohlhagen@ua.ac.be Management, University of Antwerp 23 Eric Lampertz Programme Analyst, UNCDF Cambodia eric.lampertz@uncdf.org 24 Laila Langari Programme Officer, Education and Training Centre for Poor Women and Girls, Afghanistan 25 Reserrecction Lao Executive Director,Economc, Social and Cultural escasia2003@yahoo.com/ Rights-Asia (ESCR-Asia) resurreccion.lao@escr-asia.org 26 Le Nam Huong Programme Analyst, UNDP Viet Nam Le.nam.huong@undp.org 27 Ahjung Lee Acting Programme Manager, UNDP Indonesia Ahjung.lee@undp.org 28 Warunsiri (Pink) Programme Assistant, UNDP Asia-Pacific Warunsiri.Manaviboon@undp.org Manaviboon Regional Centre 29 Swati Mehta Project Manager, Access to Justice, UNDP India Swati.mehta@undp.org 30 Oliver Mendelsohn Emeritus Scholar, Editor Law in Context, School O.Mendelsohn@latrobe.edu.au of Law, La Trobe University 31 Tiernan Mennen Legal Empowerment of the Poor Initiative, tmennen@justiceinitiative.org Open Society Institute 32 Naima Mohamed Programme Associate, UNDP Maldives Naima.mohamed@undp.org 33 Allison Moore Project Manager, Indonesia Legal Allison@tifafoundation.org Empowerment of the Poor Initiative, Open Society Foundations 34 Jennifer Brick Murtazashvili Assistant Professor, Graduate School of Public jmurtaz@pitt.edu and International Affairs University of Pittsburgh 64 ANNEX 2: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – PARTICIPANTS LIST – 4–6 OCTOBER, 2010  35 Emilia Mugnai Programme Specialist, Justice and Human Emilia.mugnai@undp.org Rights, UNDP Asia-Pacific Regional Cetnre 36 Vijay Nagaraj Research Director, International Council on nagaraj@ichrp.org Human Rights Policy 37 Sohaila Noor Civil Law Unit, Ministry of Justice, Afghanistan 38 Ingvild Oia Oslo Governance Centre, UNPP Ingvild.Oia@undp.org 39 Laurent Pouget Legal Programme Specialist, UNDP Lao PDR Laurent.pouget@undp.org 40 Zubair Qani Monitoring and Evaluation Officer, Justice Zubair.qani@undp.org and Human Rights in Afghanistan, UNDP Afghanistan 41 Usha Ramanathan Independent Law Researcher, India urushar@gmail.com 42 Tamara Relis Assistant Professor, Touro Law School, New T.Relis@lse.ac.uk York and Research Fellow at London School of Economics 43 Taufik Rinaldi Justice for the Poor, World Bank, Indonesia trinaldi@worldbank.org 44 Chandra Roy Regional Initiative on Indigenous Peoples’ Chandra.roy@undp.org Rights and Development (RIPP), UNDP Asia- Pacific Regional Centre 45 Devasish Roy Chakma Raja and chief of the Chakma Circle, devasish59@yahoo.com Chittigong Hill Tracts; Advocate at the Supreme Court of Bangladesh 46 Osama Siddique Department of Law and Policy, Lahore osiddique@sjd.law.harvard.edu University of Management Sciences 47 Kanta Singh Programme Analyst, UNDP India Kanta.singh@undp.org 48 Rukka Sombolinggi Regional Initiative on Indigenous Peoples’ rukka.sombolinggi@undp.org Rights and Development (RIPP), UNDP Asia- Pacific Regional Centre 49 Milena Stefanova Justice for the Poor, World Bank, Vanuatu mstefanova@worldbank.org 50 Sudarshan Policy Advisor – Justice and Legal Reform, sudarshan@undp.org UNDP Asia-Pacific Regional Centre 51 Pauline Tamesis Governance Practice Leader, UNDP Asia-Pacific Pauline.tamesis@undp.org Regional Centre 52 Tarika Wongsinsirikul Programme Assistant, UNDP Asia-Pacific tarika.wongsinsirikul@undp.org Regional Centre 53 Sopheap Yin Cambodian Indigenous Youth Association sopheapyin@yahoo.co.uk 65 ANNEX 2: ACCESS TO JUSTICE WEEK PART I – NON-STATE JUSTICE SYSTEMS: PRINCIPLES AND PRACTICES SYMPOSIUM – PARTICIPANTS LIST – 4–6 OCTOBER, 2010  Annex 3: Access to Justice Week Part II – Regional Consultation on Access to Justice Assessments – Agenda – 7–8 October, 2010 Day 1: Thursday, 7 October 2010 8:30–9:00 Registration Introduction and Overview 9:00–9:30 Introductory Remarks R. Sudarshan, Justice and Legal Reform Advisor, UNDP APRC Session I: UNDP and Access to Justice Assessments in the Asia Pacific Region 9:30–10:30 Session Objective: Background and Review of Access to Justice Assessments in the Asia Pacific Region Presentations: • Emilia Mugnai, Programme Specialist – Justice and Human Rights, UNDP APRC • Ramani Jayasundre, A2J Assessment Consultant, UNDP APRC Moderator: Aparna Basnyat, UNDP APRC 10:30–10:45 Coffee Break Session II: Where do we start – Designing the Research Framework 10:45–13:00 Session Objective: To identify challenges, opportunities and lessons from experiences in the region in initiating access to justice assessments and designing the research framework and methodology. Panel: • Chris Morris, Policy Officer, National Reform Branch, Department of Premier and Cabinet, Victoria, Australia • SharmeelaRassoul, Project Manager, Equal Access to Justice Project, UNDP Sri Lanka • Aishath Rizna, Senior Registrar, Supreme Court, Maldives • Barkhas Losolsuren, UNDP Mongolia • Tiernan Mennen, Legal Empowerment of the Poor, Open Society Justice Initiative Moderator: Emilia Mugnai, UNDP APRC 13:00–14:00 Lunch 66 ANNEX 3: ACCESS TO JUSTICE WEEK PART II – REGIONAL CONSULTATION ON ACCESS TO JUSTICE ASSESSMENTS – AGENDA – 7–8 OCTOBER, 2010  Session III: How do we make it happen – Conducting the Assessment 14:00–16:00 Session Objective: To identify key factors in conducting access to justice assessments particularly in ensuring that the perspectives of the poor and disadvantaged are documented. Panel: • Raquel YrigoyenFajardo, Independent Consultant, Peru • Krishna Vellupillai, UNOPS Sri Lanka • Nguyen Tien Lap, Seinor Partner, NH Quang and Associates Law Firm, Vietnam • IngvlidOia, UNDP Oslo Governance Centre • Swati Mehta, GoI-UNDP Project of Access to Justice for Marginalized People, India Moderator: Laurent Pouget, UNDP Laos 16:00–16:15 Coffee Break Session IV: Working Group I 16:15–17:15 Session Objective: To identify recommendations on developing guidelines for starting access to justice assessments including designing and conducting the assessments. Break into working groups: In each working group identify a facilitator and a rapporteur. Based on the sessions today identify recommendations and lessons that should be included as part of the guidelines and tools being developed for access to justice assessments for designing and conducting assessments. Some Considerations: 1. What does it mean to take a Human Rights-Based Approach to Access to Justice Assessments? 2. How can we use the HRBA principles of participation and inclusion, equality and non-discrimination, accountability in designing and implementing the A2J assessments? 3. How do we ensure that the A2J assessment captures the challenges facing the poor and disadvantaged in accessing justice – women, children, minority groups, and other marginalized populations? 4. What are some of the critical elements to consider in designing the assessment and developing the methodology – e.g. user voices and perceptions rather than an institutional approach? 5. What are critical factors to keep in mind when implementing the questionnaires/focus group discussions i.e. research team, target groups, language, etc.? 6. Which institutions need to be involved in A2J assessments? Are local capacities being built through the assessment? 17:15–17:30 End of Day 1 Day 2: Friday, 8 October 2010 8:30–9:00 Registration Session IV: Working Group I 9:00–10:15 Session Objective: To identify recommendations on developing guidelines for access to justice assessments. Break into 3 working groups: In each working group identify a facilitator and a rapporteur. Identify some recommendations and lessons that should be included as part of the guidelines and tools being developed for access to justice assessments. (45 mins) Presentation in Plenary (30 mins) 67 ANNEX 3: ACCESS TO JUSTICE WEEK PART II – REGIONAL CONSULTATION ON ACCESS TO JUSTICE ASSESSMENTS – AGENDA – 7–8 OCTOBER, 2010  10:15–10:30 Break Session V: Who do we work with – Developing Partnerships 10:30–11:30 Session Objectives: To identify strategies for partnership building in conducting and assessments on Access to Justice in order to maximize impact of the findings. Panel: • Kim McQuay, Regional Director for Law and Governance, The Asia Foundation • TaufikRinaldi, Justice for the Poor, World Bank Indonesia • Gemma Archer, Global Access to Justice Project, UNDP New York Moderator: Nicholas Booth, UNDP Vietnam Session VI: What does it all mean – Analysis of data and findings 11:30–13:30 Session Objective: To identify factors that need to be considered in analysing the data and findings and to highlight challenges and lessons from regional experiences. Ramani Jayasundere, Access to Justice Assessments Consultant Raza Ahmad, Independent Researcher and Policy Advisor, Pakistan Chris Morris, Policy Officer, National Reform Branch, Department of Premier and Cabinet, Victoria, Australia Krishna Velluplai, UNOPS Sri Lanka Raquel YirogenFajardo, Independent Consultatn, Peru Moderator: Maria Bermudez, UNDP Timor Leste 13:30–14:30 Lunch Session VII: How can it make a difference–Advocacy and Impact on policy and programming 14:30–16:00 Session Objective: To identify the impact of assessments in developing policies and programmes and how assessments can be used to advocate for strengthening access to justice for the poor and disadvantaged. Panel: • Ahjung Lee, UNDP Indonesia • Aisha Shujune Muhammad, Judge Civil Court, Maldives • Eric Lampertz, UNDP Cambodia • Marlon Manuel, Alternative Law Groups, Inc., the Philippines Moderator: R. Sudarshan, UNDP APRC 16:00–16:15 Coffee Break Session VIII: Next Steps 16:15–17:15 Session Objective: To identify possible areas of engagement on Access to Justice assessments in the region. In plenary, discuss some initiatives that can be undertaken in the region on Access to Justice Assessments. Discussion in Plenary 17:15–17:30 Workshop Closing 68 ANNEX 3: ACCESS TO JUSTICE WEEK PART II – REGIONAL CONSULTATION ON ACCESS TO JUSTICE ASSESSMENTS – AGENDA – 7–8 OCTOBER, 2010  Annex 4: Access to Justice Week Part II – Regional Consultation on Access to Justice Assessments – Participants List – 7–8 October, 2010   Name Title Organization Contact 1 Cornelius Nolen, Esq. District Level Component UNDP Afghanistan cornelius.nolen@undp.org Manager, Justice and Human Rights in Afghanistan Project 2 Chris Morris Policy Officer, National Australia cjmor3@yahoo.com.au Reform Branch, Department of Premier and Cabinet, Victoria, Australia 3 Matthew Corrigan Justice and Human Rights UNDP Bangladesh Matthew.corrigan@undp.org Specialist 4 Eric Lampertz Programme Analyst UNDP/UNCDF eric.lampertz@uncdf.org Cambodia 5 Socheath Heng Governance Team Leader UNDP Cambodia socheath.heng@undp.org 6 Gu Qing Programme Manager, UNDP China qing.gu@undp.org Democratic Governance 7 U. Sarathchandran Member Secretary National Legal   Services Authority, India 8 Kanta Singh Programme Analyst GoI-UNDP Project of Kanta.Singh@undp.org Access to Justice for Marginalized People, India 9 Swati Mehta Project Manager GoI-UNDP Project of Swati.Mehta@undp.org Access to Justice for Marginalized People, India 69 ANNEX 4: ACCESS TO JUSTICE WEEK PART II – REGIONAL CONSULTATION ON ACCESS TO JUSTICE ASSESSMENTS – PARTICIPANTS LIST – 7–8 OCTOBER, 2010  10 Ahjung Lee Programme Manager, a.i. UNDP Indonesia Ahjung.Lee@undp.org Human Rights, Legal and Justice Sector Reform Cluster Democratic Governance Unit 11 Laurent Pouget Legal Programme Specialist UNDP Lao PDR laurent.pouget@undp.org 12 Naima Mohamed Programme Associate UNDP Maldives Naima.Mohamed@undp.org – Governance` 13 Aishath Rizna Senior Registrar Supreme Court, rizna@supremecourt.gov.mv Maldives 14 Aisha Shujune Judge Civil Court, Maldives shujune.muhammad@civilcourt. Muhammad gov.mv 15 Barkhas Losolsuren Governance Specialist UNDP Mongolia barkhas.losolsuren@undp.org 16 Thin Khaing Programme Analyst (Local UNDP Myanmar thet.khaing@undp.org Governance) 17 Shirin Gul Programme Officer UNDP Pakistan shirin.gul@undp.org 18 Raza Ahmad Independent Researcher Pakistan raza.ahmad70@gmail.com and Policy Advisor 19 Raquel Independent Consultant International Institute editora@alertanet.org YrigoyenFajardo of Law and Society, Lima, Peru 20 Marlon Manuel Coordinator Alternative Law mjmanuel19@yahoo.com Groups, Inc, Philippines 21 Resurreccion Lao Executive Director ESCR Asia, Philippines titionlao@yahoo.com 22 Ramani Jayasundere Access to Justice Sri Lanka ramanij@sltnet.lk Assessments Consultant 23 Krishna Velupillai Tecnhical Coordinator UNOPS Sri Lanka KrishnaV@unops.org 24 SharmeelaRassoul Programme Manager, Equal UNDP Sri Lanka sharmeela@undpaccesstojustice. Access to Justice Project org 25 KwanpadSuddhi- Programme Analyst UNDP Thailand Kwanpadh.Suddhi-Dhamakit@ Damakit (Governance) one.un.org 26 ViacheslavMysak Access to Justice Officer UNDP Timor Leste Slava.mysak@undp.org 27 Maria Bermudez CTA, Justice System UNDP Timor Leste Maria.Bermudez@undp.org Programme 28 Nguyen Hung Quang Managing Partner NH Quang and quang@nhquang.com Associates Law Firm, Vietnam 70 ANNEX 4: ACCESS TO JUSTICE WEEK PART II – REGIONAL CONSULTATION ON ACCESS TO JUSTICE ASSESSMENTS – PARTICIPANTS LIST – 7–8 OCTOBER, 2010  29 Nguyen Tien Lap Senior Partner NH Quang and tienlap@nhquang.com Associates Law Firm, Vietnam 30 Le Nam Huong Programme Analyst UNDP Vietnam le.nam.huong@undp.org 31 Nicholas Booth Policy Advisor – Rule of Law UNDP Vietnam nicholas.booth@undp.org & Access to Justice 32 Tiernan Mennen Senior Project Manager, Open Society Justice tmennen@justiceinitiative.org Legal Empowerment of the Institute Poor, 33 Allison Moore Project Manager, Legal Open Society allison@tifafoundation.org Empowerment of the Poor Foundation, Initiative Indonesia 34 TaufikRinaldi Justice for the Poor World Bank, trinaldi@worldbank.org Indonesia 35 Kim McQuay Regional Director for Law The Asia Foundation kmcquay@asiafound.org and Governance 36 Roger Normand Asia Pacific Director International Council roger.normand@icj.org of Jurists, bangkok 37 Ingvild Oia Research Officer UNDP Oslo Ingvild.Oia@undp.org Governance Centre 38 Gemma Archer Programme Specialist UNDP New York gemma.archer@undp.org 39 R. Sudarshan Legal Reform and Justice APRC Ramaswamy.Sudarshan@undp. Policy Advisor org 40 Emilia Mugnai Justice and Human Rights APRC emilia.mugnai@undp.org Programme Specialist 41 Aparna Basnyat Human Rights Capacity APRC aparna.basnyat@undp.org Development Specialist 42 Johanna Cunningham LEAP Consultant APRC johanna.cunningham@undp.org 43 Warunsiri Manaviboon Programme Assistant APRC warunsiri.manaviboon@undp.org 44 Tarika Wongsinsirikul Programme Assistant APRC tarika.wongsinsirikul@undp.org 71 ANNEX 4: ACCESS TO JUSTICE WEEK PART II – REGIONAL CONSULTATION ON ACCESS TO JUSTICE ASSESSMENTS – PARTICIPANTS LIST – 7–8 OCTOBER, 2010 Notes Notes Notes  Sharing Experience in Access to Justice: Engaging with Non-State Justice Systems & Conducting Assessments UNDP Asia-Pacific Regional Centre United Nations Service Building, 3rd Floor Rajdamnern Nok Ave. Bangkok 10200, Thailand http://asia-pacific.undp.org