A post by Ashley Seah
“An Englishman naturally imagines that the rule of law … is a trait common to all civilised societies… But this supposition is erroneous” Dicey [1885]
Like other legal constructs, the Rule of Law (ROL) is a disputed concept and so exists on a spectrum encompassing both thick (substantive) and thin (procedural) definitions. As an instrument used to further democratic ideals and human rights, the ROL is often described as a prerequisite for a well-functioning legal system. It is therefore commonly assumed that its application will necessarily bring about positive outcomes as seen in statements attributing the important role played by the ROL in the economic development and to some extent, the recognition of states (due to the ROL’s link with democracy). However, this same role can be alternatively conceptualised. On the flip side, the ROL can be seen as an instrument of colonisation, imposing Western conceptions of the law onto indigenous people in the name of development. This article will, therefore, attempt to expose this lesser-known aspect of the ROL in more detail as well as discuss how this information could be used to develop more cooperative systems to alleviate the tensions between indigenous people’s rights and the economic need for development.
Firstly, we must understand that the dominant idea of a ROL-based legal system is just one out of a multitude of possible alternative structures. The current widespread use of this structure can be attributed to many factors but is mainly said to be the result of the modern ‘colonial era’ led by Western European settlers. During this period, colonial administrators introduced the ‘Western’‐styled ROL while seeking to reshape and ‘improve’ highly plural and localized legal cultures of the ‘Global South’. As this was done by dismissing customary norms, the forced conformity to the new, unfamiliar legal system led to the disempowerment of the indigenous people, and ultimately, subordination to the settlers.
Following the independence of these countries, it seems strange that the formal law that replaced customary norms were voluntarily maintained considering the negative effect they had on their society. On closer inspection, one can find various reasons for this peculiarity. A possible explanation may just be inertia - that the system was maintained since elites within the country had a vested interest continuing it, having become adept at negotiating the common law or civilian structures.[1] Moreover, as law provides a framework for economic activity to prosper, one can say that this introduced a system of capitalism that led the people to see value in an economic status. Given the essential role played by the ROL in international trade – with participation in bilateral treaties or international trade organisations requiring the recognition of a reliable ROL-based legal system – the formal legal system was maintained to continue building up their country’s economic position.
While some may question the relevance of this historical discussion, its continued pertinence is apparent in relation to the development of countries, since the ROL can be seen to be imposed unto indigenous people in relation to their forced conformity to legal notions of property rights. As in Mabo, what commonly results is the complete loss of indigenous peoples rights to their inherited land - leading to a loss of their source of food, shelter and spirituality as well.[2] The only way then, is to try and reinvigorate their customary law systems, which can either be done by bringing a case to court (as in Mabo) or by pressuring the state to ratify the UNDRIP and thus, subsequently implement statutes giving effect to it. [3] However, both options will require indigenous people to buy into Western legal concepts by acknowledging and valuing the constitutional decisions made - inevitably placing customary law subordinate to state law. Further, this is evident in countries with Native Courts such as Sabah (Malaysia), where these court operations are still considered state matters and so need to be regulated by state legislation and executives (similarly to the problems faced by Native Americans – see videos below).[4]
Importantly, the issue here is not whose system of law is better, but it is to make sure that the people affected adopt these measures themselves instead of being forced to comply. This will not only allow for a proper implementation of human rights for indigenous people, but also shows respect for their right to self-determination and self-governance as set out in the UNDRIP. Practically speaking, one possibility would be to give statutory courts a very narrowly defined power to hold customary courts to constitutional standards.[5] Alternatively, for systems with native courts, more trust should be placed in local leaders to act as judges, with possible checks carried out internally between judges of state courts and native courts. Through this, there will be a way to justify and convince native judges – who are usually influential people within their society – to slowly adapt their law to give better respect for fundamental principles of human rights and land rights.
The solutions must thus be to improve the two-way discourse between indigenous people and the government while using the least intrusive means to enable indigenous peoples to adjust and adapt the law on their own terms. This will not only lead to a better understanding of indigenous peoples’ concerns regarding land rights and their values – which closely revolves around the environment – but might also lead to their gradual acceptance of international standards such as human rights. In fact, David Pimentel has proved that this is possible since the tribal chiefs and other customary law adjudicators in Southern Sudan responded well to international standards once he built their understanding of them.[6]
However, it is not to say that this endeavour will not have complications. Language barriers will definitely be a problem, considering the unique languages spoken by indigenous people which may lose their nuances when translated (if a translator could be found at all). There will also be a difficulty of explaining the legal concepts such as property rights and jurisdiction to indigenous people, who live by a fundamentally different system that often contain oral and flexible rules.[7] However, if successful, this will surely lead to more culturally appropriate and effective solutions and thus, a more accepting and pluralistic legal system – adding to the liberal ideologies of democracy and human rights closely associated to the ROL.
References:
[1]Sandra Fullerton Joireman, 'Inherited Legal Systems And Effective Rule Of Law: Africa And The Colonial Legacy' (2001) 39 The Journal of Modern African Studies.
[2]Mabo V Queensland (No 2)' (En.wikipedia.org, 2018) <https://en.wikipedia.org/wiki/Mabo_v_Queensland_(No_2)> accessed 16 March 2018.
[3] United Nations Declaration on the Rights of Indigenous Peoples (adopted 13th September 2007)
[4] 'Sabah And Sarawak CJ Hopes Native Courts Given Same Standing As Civil, Syariah Courts' (Thesundaily.my, 2018) <http://www.thesundaily.my/news/2017/05/29/sabah-and-sarawak-cj-hopes-native-courts-given-same-standing-civil-syariah-courts> accessed 16 March 2018.
[5] David Pimentel, 'Can Indigenous Justice Survive? | Harvard International Review' (Hir.harvard.edu, 2018) <http://hir.harvard.edu/article/?a=2683> accessed 16 March 2018.
[6] David Pimentel, 'Can Indigenous Justice Survive? | Harvard International Review' (Hir.harvard.edu, 2018) <http://hir.harvard.edu/article/?a=2683> accessed 16 March 2018.
[7] Bettina Koschade and Evelyn Peters, 'Algonquin Notions Of Jurisdiction: Inserting Indigenous Voices Into Legal Spaces' (2006) 88 Geografiska Annaler: Series B, Human Geography.
On Deep Ecology
On indigenous people
On Cooperation