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History of Hybrid Courts in East Asia & Pacific: A ‘best fit’ approach to justice reform?

Peter Chapman's picture
Peter Chapman

It took 41 years for the fastest developing 20 countries in the 20th century to achieve basic transformations in the rule of law.  However, the World Development Report 2011 suggests that fragile countries cannot afford to wait that long.  Instead, in managing disputes, it is imperative for governments and the international community to support arrangements that fit each country context, take into account capacity constraints in government and the local level, and respond to the needs of users. Justice reform should be measured accordingly from a functional perspective—based on the needs of users—rather than abstract modeling of institutions on western approaches. 

The World Bank’s Justice for the Poor program recently sponsored a workshop in Solomon Islands to explore the role of ‘hybrid courts’ in supporting equitable dispute resolution. The term ‘hybrid courts’ is used to describe a variety of state initiatives that seek to formalize and support community justice systems within the state justice system. I will be blogging, in three parts, on whether hybrid courts might be effective in promoting equitable dispute resolution.  Building on what participants from the Solomon Islands, Vanuatu, Papua New Guinea, Philippines, Sierra Leone, Nigeria and South Africa said about their hybrid courts, I will start with a short history of hybrid courts.

Lowa Village Court in PNG
Lowa Village Court in PNG. Photo by J4P Consultant Michael Goddard

From the outset, it’s important to recognize that many of today’s hybrid courts emerged during the colonial period. Typically, colonial powers introduced Western law for the foreign population, while accepting community forms of dispute resolution to varying degrees. This acceptance of community dispute resolution often involved elements of formalization, transformation and control by the state, including the incorporation of local decision makers into the government through hybrid courts.

In some cases (e.g., the Chiefs Courts of South Sudan), these new structures and authorities became effectively embedded in society and as a permanent feature of the judicial system through today.  In others (e.g., customary courts of Liberia), they have had quite a mixed record of accountability both to the community and to the state, and have been the subject of contention.

Postcolonial states subsequently faced similar challenges as their colonial predecessors: limited geographical reach of state institutions, Western-modeled institutions often divorced from community structures and expectations, and resource constraints in the justice sector. Many of these new states turned to hybrid courts as a middle ground for supporting community decision-making while simultaneously expanding the authority and reach of the state.

Papua New Guinea, for example, included local decision-makers in the state justice system through Village Court magistrates. Today across Papua New Guinea there are more than 1,500 Village Courts hearing community problems through mediation and adjudication with supervision from the state. Likewise, the governments of Solomon Islands and Vanuatu established hybrid systems prior to, or immediately following, independence. In Solomon Islands, the number of these hybrid courts has steadily decreased since independence and in Vanuatu the courts remain today, but do not seem to be used to their full potential.

In my next entry, which I will post next week, I will talk about what makes hybrid courts effective in particular contexts. Why is it that hybrid courts appear to have succeeded in Papua New Guinea, for example, while they have fallen out of favor in other areas?

Comments

Submitted by Jonathan Pavluk on
The use of "Western-modeled" justice institutions (by which, I think you must mean: independent courts, 'due process' and 'transparency', administrative regularities like consistent archival of written records to ensure a uniform basis for decisions and to demonstrate the 'rule of law', etc.) have always been what we (the International Financial community) have been quick to recommend to less developed countries as models for their justice reform agendas, precisely because we think that those are the types of institutions that would be most likely to favor the increased trade, investment, successful anti-corruption prosecutions, and a leveling of the playing field among various economic actors (women on a level playing field with men; corporations on a level playing field with households; etc.)that accord with our Institutional mandate for an economically freer, more integrated, more developed world. There are a lot of countries that are admittedly not ready for those kinds of institutions yet, simply because -- out of their current disadvantaged economic position -- they can't afford to lay out the expense to create them. So, I would have to ask, isn't the reason why hybrid court courts are worth investigating singularly in the very places that you mentioned, like Vanuata, the Solomon Islands, Sierra Leone, etc., simply a matter of the relative level of (un-)development of those economies? Isn't it axiomatic that the more economically developed that a country becomes, -- by acquiring all the trappings of the modern capitalist economy (corporate interests accumulating more and more resources and becoming more and more integrated across sectors; financial institutions like banks and private equity investors being responsible for an ever-icnreasing share of the movements of wealth across actors) -- the more it will see the urgent need for "rule of law" (meaning, a rule of law that protects corporations (!) from depradations) and "protection of property rights" (protection of corporations' property (?)). And, isn't it easy to recognize this global trend of development (could we call it a "natural law" of development (?)) -- where more sophisticated justice institutions are created and empowered to operate that will go hand-in-hand with the more sophisticated types of corporate and financial institutions whose interests they can continually enforce and protect -- can continue to evolve in societies in the direction that favors the increased recognition of corporate interests over the simple, unincorporated people's less sophisticated interests, until the trend reaches to an extreme, even hazardous point, where the traditional "rights" and "liberties" of the little people are questionable whether they still exist or not, or else have become marginalized to the point of insignificance? Or, at least, that is the debate that I think can develop over what is always going to be a clash of interests when you introduce modernity rapidly into a traditional society, and where well-financed global interests start to come in and assert prerogatives that formerly belonged exclusively to traditional institutions like village chiefs. So, ultimately it gets to the point where a society can start to debate the question: 'Must corporations have the same civil rights (free speech, involvement in political life, electioneering, etc.) and have those 'rights' protected without restriction by the courts, as individual citizens do? (Cf. Citizens United vs. FEC (2010), the US Supreme Court case, holding that corporations and associations (including political action committees like Citizens United have Constitutional "free speech" rights the same as individuals do), the case that President Obama has been so critical of.) So, when people talk about integrating community-based justice models like hybrid courts in a developing country, I always think this might be appropriate for a country that is going to have to go through a temporary phase in their economic evolution, and that these types of courts may be of ultimately limited utility; in that, their jurisdiction must be limited to 'community'-type problems and disputes (like family law, inheritances, criminal offenses, reintegration of combatants into community life), and will end up not having much of a role to play in business transactions. Do you agree?

Thank you very much for your thoughtful comment, Jonathan. I think that your line of questioning—around the role of hybrid courts in an increasingly economically developed world—is quite pertinent. While I do agree with you that hybrid courts are likely to play a minimal role in more formal business transactions, I don’t think that limits their utility. I explore this a bit more in my next two posts (so stay tuned!) but, where they work, hybrid courts can play a role in addressing grievance and maintaining social harmony within communities. ‘Development’ introduces new (and commodifies existing) resources and redistributes power. Supporting measures to locally manage the inevitable negotiation and contestation around development processes is critical and it seems that hybrid courts can contribute in some contexts (for example, Papua New Guinea). I also welcome your point about the need for ‘temporary’ solutions in institutional development. I agree there is a need to embrace interim (or what the 2011 WDR calls ‘best fit’) arrangements, based on local context, that promote equitable and accountable dispute resolution in the near term. As I noted in my post, the WDR found that it took 41 years for the fastest developing 20 countries in the 20th century to achieve basic transformations in the rule of law. Given this pace of change, supporting interim justice arrangements seems to be essential in meeting the needs of many striving for justice around the world.

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