What do we want to know?
The complementarity between the state justice systems and the non-state justice (NSJ) systems in the South Asian region is well-documented. The non-state justice systems are complementary in their function with the state justice systems as they are a means of alternative justice delivery systems: they reduce the backlog of cases in the courts and provide a speedier and inexpensive mechanism of justice delivery to those living in rural areas who lack access to the courts. Therefore there is a need to study the complementarity between state and non-state justice systems, especially in the context of South Asia, as instances of non-state justice systems, such as jirgas, shuras, shalish, panchayat etc. have emerged as popular forms of dispute resolution as a result of the perceived failure or inaction by the state justice delivery systems.
The aim of this systematic review is to synthesise the findings on the complementarity between the systems which is vital as it offers insights into how the existing informal systems can be improved to make them more compliant with rule of law and international norms as well as to see how the formal system can be assisted in reducing and clearing the chronic backlog of cases in courts which have plagued the justice delivery systems in South Asia.
The specific objectives of the proposed overview of systematic reviews are to assess:
- the different models of non-state justice systems in South Asia
- the effectiveness of the NSJs in enhancing the people’s access to justice
- the efficiency of NSJs in terms of speed of justice delivery, gender justice and cost
- the existing approaches that can used to strengthen complementarity between state and non-state justice delivery
- identify the challenges that are being faced by the non-state justice systems
What did we find?
NSJs are sought after by the people especially in the rural areas due to its physical proximity as compared to the formal justice systems. Further there is the expectation that resorting to NSJs would reduce costs. However, the ADR mechanisms, though a practical alternative to the formal state justice system, lack enforcement power that necessitates efforts to integrate and complement the formal state systems. For complementarity to work between the non-state justice system and state justice systems, NSJ should be perceived as a legitimate system. In this context hybrid systems that take the positives of both the systems have been effective in settling disputes. We find that interventions towards improving the access and utilization of NSJs by women have opened up new spaces for women to vent their grievances. However, there exists a need to promote NSJs, which provide confidential space for women to bring out their grievances. Such systems should be women-centric systems and women should be made to participate in the process of justice delivery. While NSJs solved the problem of access, at times they did it at the cost of human rights. Hybrid systems, like ADR based systems in countries like Bangladesh and Afghanistan, can address such violation of human rights while delivering justice.
What are the implications?
The effectiveness of NSJ systems helps in providing access to justice, efficient justice delivery and gender justice. Although the NSJ systems are helpful there is a need for legitimising them further as well as making them more effective. It has been seen that in customary and traditional justice systems such as the Jirgas, the Shuras and Shalish there have been cases where human rights and gender justice have not been upheld. Hence the current interventions need to look into some other factors such as human rights, gender justice and legitimacy in order to make the system more effective. NSJs need to be located in areas which are in proximity to the community seeking justice in the rural setting as formal justice systems are often perceived as urban centric and expensive. NSJ can be promoted by encouraging ADRs as it provides speedy and cost effective justice in a wide range of cases covering civil and criminal disputes, women, minority and human rights. The state justice systems and NSJs should be synchronised to resolve criminal disputes where both the systems act independently in delivering justice. The NSJ system need to focus on conciliation as there exists a need for them to keep the social fabric of the community intact.
How did we get these results?
The interventions in the identified 44 studies were classified based on their effect at the individual level, community/institutional level and at the country level. These interventions cover a broad spectrum of disputes related to civil disputes, criminal disputes, disputes related to women and minorities, commercial disputes, human rights issues and petty cases. The interventions in each of these disputes yielded outcomes on the following aspects, which we considered for the synthesis: (1) Improved access to justice, (2) Efficient justice delivery, (3) Gender justice, (4) Fairness equality and accountability, (5) Restorative justice, (6) Reduction in crime rate and (7) Promotion of human rights. Risk of bias assessment was used to evaluate the quality of the included studies. Our attempt was to synthesize the qualitative evidence pertaining to each of the identified outcomes.
This report should be cited as:
Ali F, Mathew SK, Gopalaswamy AK, and Babu MS (2017) Systematic review of different models and approaches of non-state justice systems in South Asia and its complementarity with the state justice delivery systems. London: EPPI Centre, Social Science Research Unit, UCL Institute of Education, University College London.