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Hybrid Courts in East Asia & Pacific: A recipe for success?

Peter Chapman's picture
Daru Village Court in Papua New Guinea

What accounts for whether hybrid courts stick as relevant and useful institutions, as opposed to withering as a ‘neither-nor’ – neither regarded as a familiar community mechanism, nor as having the full backing of the state? In my previous blog entry, “History of Hybrid Courts in East Asia & Pacific: A ‘best fit’ approach to justice reform?”, I discussed the emergence of hybrid courts. In this post, I’ll raise three elements which seem to be essential characteristics of successful hybrid court systems: legitimacy, effectiveness, and flexibility.

Legitimate institutions respond to local demands and typically evolve through negotiation and collaboration. Providing space for community participation in the justice system is essential. It seems that in some cases, hybrid courts can help provide this space, thereby supporting a more legitimate (pdf) institution than purely imported legal models.

This is a delicate balance, however. The process of formalization of community decision-making through legislation creating hybrid courts may actually alienate the institutions and community decision-makers from their communities. Over-formalized approaches can push the community away from hybrid courts and it’s necessary to have procedures that take into account community needs and expectations.

Likewise, where hybrid systems are effective, they respond to community demands by locally and efficiently resolving community disputes in ways that the parties view as ‘fair’ or ‘just’. The Village Courts (pdf) in PNG and the Barangay Justice System in the Philippines are both handling tens of thousands of cases annually, often with significant support from local communities.

In each case, officials are given a degree of flexibility in decision-making, resources from government, and are more numerous and accessible than higher levels of the court system. They are able to hear more cases, without complex evidentiary standards, and effectively respond to immediate needs of communities while simultaneously linking with higher levels of the state justice system.

Ensuring flexibility of decision-making and community participation can be a difficult process. It may require that the state’s legal community relinquish some control over dispute resolution. From the perspective of government, this may reduce the predictability (or what anthropologist James Scott refers to as ‘legibility’) of the system. At the same time, however, such adaptive community-based systems may be more predictable from the perspective of the user, as formalized state systems are often viewed as complex or foreign.

Finding the right balance of flexibility is no easy task. Indeed, incorporating the flexibility of different community approaches might require the state to redefine human rights commitments to the community (e.g., principals of non discrimination, right to counsel, or equal protection).

Such tensions require innovative solutions. How can governments balance the need to provide locally relevant, legitimate and effective dispute resolution with considerations of state building and human rights? Might hybrid courts be one approach that merits additional consideration?

In my next post I’ll propose a few areas where I think the World Bank, and other development partners, might be able to contribute to such discussions.

Comments

Submitted by Barbara Jackson on
Thank you Peter for your interesting insight, and Jonathon has weighed in with some excellent points as well. The term “hybrid courts” might possibly require some clarification. It seems to encompass alternative dispute resolution and community justice initiatives in the customary context. But the term “hybrid” also seems to infer a concurrent jurisdiction of sorts. Are you referring to community justice initiatives (i.e. courts or tribunals) which apply both statutory and customary law? Also, does your analysis of “hybrid” courts also refer situations where either a community court or an (ordinary westernized) superior court can exercise the same jurisdiction? For example, I note that with respect to the PNG Village courts, a District Court can also hear the same matters (provided rules of evidence are not strictly adhered to, and provided no lawyers are present.)[See section 38 of the Village Courts Act 1989 at this link http://www.paclii.org/pg/legis/consol_act/vca1989172/ ] This issue struck me as I reviewed your great overview, and I wonder if this issue relating to the definition of the term “hybrid” court has been touched upon at all.

Thank you for your comment Barbara. I think you are right to flag definitional questions around ‘hybrid’ courts. While the term ‘hybrid’ invariably covers a variety of different institutional arrangements, by invoking ‘hybrid’ I was referring to the incorporation of community-based systems or officials into statutory structures through legislation or regulation. You’re quite right that different institutions within these systems can have concurrent jurisdiction. Over the years there has been much debate over the most appropriate terminology to describe ‘hybrid’ or customary or traditional justice systems. Practitioners have used a variety of terms and there are still disagreements over which is/are the most appropriate (perhaps an interesting subsequent blog!). Within East Asia & Pacific, Samuel Clark and Matthew Stephens include an interesting discussion of hybridity in a paper on Indonesia: http://www.idlo.int/Publications/WP2clarkstephens.pdf.

Submitted by Peter Pirape on

Excellent overview of the Village Courts System in PNG.Very impressed. We are nation of thousand tribes with thousand languages. Each tribes, clans or communities may practice different sets of accepted customary practices which may not be accepted in another cumstomary or traditional setting. This is the reason why the Village Court system was introduced so that conflicts over land, marriage, stealing from village gardens,etc including minor delinquencies at the community level can be solved at that level through accepted customary practices.Criminal offences like murder, rape, fraud, etc.. can be escalated to the Crimial Justice Systems for prosecution. The National and Supreme Courts has jurisdiction over such criminal matters.I must say that the Village Court system has been effective in PNG thus should be copied by other developing democracies in the region.

Submitted by Peter O'neill on
There is a video posted on the front page of the WB website that shows what has been built as rural roads in laos under this project, NT2. These roads look as though they are laterite clay. The World Bank and DFID have done extensive work in SE Asia including Laos to show that these types of roads are unsustainable, poor value for money and offload a huge financial burden ofn the country in maintenance costs. A typical laterite road has a life expectancy of less than five years. recent research conducted by the WB has concluded that dust from these roads severly affects agriculture, people and livestock health. that dust is the investment going up in the air. how can this sort of poor judgement happen on a World Bank project? It is highly embarassing. You obviously did not consult the Transport Anchor in the WB or the Vietnam hydroelectric project that has an expert on rural roads advising them. 2012 !! back to 1980s more like. Peter

Dear Peter, Thanks for your comment, which we in the World Bank Laos office understand relates to the video about NT2 revenues posted on the World Bank's website and not to this specific comment thread on hybrid courts. Your comment relates to Government road standards and procedures (remember that NT2 revenues are government owned and executed funds). The use of laterite soil for the roads which you saw in the video, is very common in South East Asia, and is used for the construction of many rural roads across the country and region. The reason is basically economics of it- Lao PDR is a sparsely populated country, which means it is hard to justify the high costs of certain road construction methods at this stage in its development with such a low population density. To surface the 30,000 km of main road network in the country, for example, it would take roughly half of GDP at the moment. The Government's approach is therefore to use a variety of road standards that are appropriate to the local objectives (e.g. basic access, as with the road in the video), and then upgrade the road network as it makes sense over time. Best, Sombath Southivong Transport Specialist, World Bank Lao PDR

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