Sunday, May 22, 2011

We Live in a World of Ineffective Efforts; Well, Most of the Time!

Union Carbide Gas Leak on the night of
the 2nd and 3rd of Dec 1984 in Bhopal,
was perhaps, the worst industrial disaster
in the human history. 25 years on, the
survivors are still denied justice.
 Image: India Protest
Nobody denies that established and efficient justice systems are essential for getting justice. The ‘established’ part is not the problem. Using the development and humanitarian world jargons, there exist all sorts of ‘formal’ [implying a state run system] and ‘informal’ [implying a plethora of systems that exist and operate based on tradition, customs, religions, a mix of some or all of these]. The significant difference being the appointment of the judges in the case of the former is by a state authority and in the case of the latter, by community elders/elite/religious heads or even by heredity.

‘Established’ does not mean an ‘efficient’ justice system. Both the formal and informal justice systems are fraught with not only the most serious disturbing practices, corruption being one of them, abuse of authority to harass the petitioners being another.
A mother and child left dead by
the Union Carbide Gas Leak in Bhopal.
Image: Avaaz
Neither ‘established’ nor ‘efficient’ mean ‘effective’ in terms of upholding and standing for fairness and equality in the application of rights. One of fundamental flaws of both the systems has been their damaging role in the unjust distribution of rights, responsibilities and power to those who seek their intervention as well as those who are subjects of the implementation of the judgments delivered by them. Don’t we remember the Bhanwari Devi case and denial of justice to her and many more injustices that she had to suffer because of the failure of the state justice system? We do. The increasingly notorious Khap Panchayats or the traditional caste councils, which rule on who can and cannot marry and who should be penalized for what and how, stare into our faces. No woman can afford to forget the Imrana Rape case the misogynist roles played by the local Muslim Panchayat and the Islamic seminary Darul Uloom Deoband.

Notwithstanding some good examples of how the formal or informal justice systems can deliver public services fairly and uphold rights applying the principle of equality in rights and equality before law, by and large they have failed to evoke a degree of trust among those who need the justice systems the most. The groups which need the justice systems the most are the dalit, poor, children, women, religious marginalized and others who continue to be discriminated, exploited and abused.

Bhanwari Devi and Her Spouse: Inspirational.
Image: Tehelka
There is no dearth of knowledge about how to mediate conflict, whether at the family, social, economic or political levels to establish equality and justice. The challenge continues to be with the lack of the governance system’s will to facilitate institutional change and to take action against those in the justice systems who are rotting the justice systems.

The engagement with the informal justice systems is turning into a fad in the international development and cooperation sphere. This growth is without much attention to how un-equitable the foundations of the traditional or religious justice structures are and how growth in their strength would promote the powers of the traditional and religious elites. The idea to establish context specific justice systems is laudable but the efforts to apply the idea are too simplistic and shallow. Often this results not in development of equitable and accessible justice systems rather in making of a bigger monster out of the traditional and religious justice structures.

Imrana, the victim branded as a sinner.
Image: Outlook
 The overarching governance structure of a country needs to recognize that the formulation, application and adjudication of laws and delivery of justice in plural socio-religious contexts is far more complex and personal biases of judges, lawyers and others in the justice systems is more likely to damage not just the individual rights-holders but also the social harmony and development. This implies that the reform of the justice system structures without a reform of the people who work in those structures will not make these structures contribute to democratization and improved governance in the country. Any effort to reform the people in the justice systems needs to further recognize that the knowledge of law per se is not adequate that these people need to learn to analyze their own internalized beliefs and behaviours, how the laws came about and what kind of thinking promoted formulation of the law, what was the political climate and what imperatives left to the particular laws, and so on. This is needed for them to have the intellectual capacity to understand the laws from various angles and apply them in a manner that delivers on equality in justice.

The other efforts of researching justice system, analyzing the role they play and of engaging them in a dialogue for reform, need to be strengthened by intensive public oversight, especially oversight by the citizens groups who need the justice systems the most. There is need to understand where these investments in the informal justice systems are leading and what type of trends with regard to long-term consequences are emerging so lessons can be learned and applied in the current and future reform related engagements.

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