|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.