Improving access to safety, security and justice is an important component of poverty alleviation. In many developing nations non-state justice systems (NSJSs) deal with more disputes and quasi-legal matters than formal courts. Do these systems offer a viable alternative to state-run systems? How can donor agencies most effectively contribute to the development of fair and effective NSJSs?
This paper examines NSJSs in Bangladesh and the Philippines. Lessons are identified that will assist practitioners in deciding whether and how to engage with NSJSs. The paper stresses that these systems can take many forms and they produce variable outcomes in respect of equity and fairness. Importantly, certain forms of NSJSs can offer important checks and balances in poor societies, offering security for vulnerable groups.
Three broad forms of Shalish (community-based informal justice systems): traditional, government-sponsored and NGO supported, operate in Bangladesh. Of the three approaches, the NGO-facilitated form seems to best alleviate gender biases in Shalish and otherwise advance access to justice. In the Philippines the Barangay Justice System is rooted in society and is run by government officials and their appointees. In both nations NSJSs make an important contribution to the application of justice. However, justice outcomes are far from consistent.
- Problems of gender bias, corruption and political patronage are not uncommon in traditional state-modified schemes. Local elites often dominate the decision-making processes leading to unjust outcomes. The traditional system in Bangladesh is believed to have deteriorated in this regard.
- While NGO involvement does not completely alleviate these problems, it ameliorates them to a degree that women and other disadvantaged populations often prefer NGO-facilitated shalish to judicial processes that are incomprehensible, geographically distant, expensive, and often gender biased themselves.
- NGO involvement has been on the increase in Bangladesh, and seems to offer some clear advantages. Notable contributions by NGOs include: Integrating women within the Shalish process; facilitating Shalish organisation; introducing record keeping; offering training; and integrating Shalish into larger development programmes.
- NSJSs can be a focus in some cases for religious fundamentalism, this is more of an issue in some parts of Bangladesh than the Philippines.
Donor objectives in relation to NSJS must be realistic. NSJS does not offer a perfect paradigm but can be seen as a critical alternative to a formalised judicial system. As in Bangladesh, it also can be seen as part of an integrated approach through which NGOs and the poor opt for NSJS but are able to go to court in case of serious crimes or if NSJS fails. Amelioration rather than eradication of problems is a worthy goal in the medium term. In this context donors need to assess the extent to which power imbalances that bias NSJSs are embedded in a society.
- Purely technical approaches (for example, stand-alone education and training) that do not increase the power of the poor in NSJS and more generally in their communities are unlikely to be effective where corruption and bias have structural causes.
- There is a dearth of rigorous research. Quantitative and qualitative studies should be undertaken to assess activities of NSJSs in relation to poverty alleviation.
- Efforts should be made to ameliorate power imbalances that infuse many non-state justice systems. Donors should aim to fund and facilitate the work of progressive civil society agencies.
- NGOs are a key conduit for engagement with civil society and should be lead partners for donors.
- In countries with more mature political systems and less intense structural biases in NSJS, NGOs might best contribute to NSJSs by offering training and monitoring functions.
- NSJSs are part of a broader process of achieving social cohesion and institutional development and as such should be integrated into broader development and empowerment initiatives.