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Legal Empowerment in Bougainville Customary Law_ Peacebuilding

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					Enhancing Legal Empowerment through Engagement
with Customary Justice Systems – Small Grants Program

     Legal Empowerment in Bougainville: Customary Law,
     Peacebuilding and PEACE Melanesia


Project location: Papua new Guinea
Research grant recipient: Naomi Johnstone

Context
Customary Law and Legal Empowerment
There are several rationales for engaging with customary legal systems as a means of
contributing to the legal empowerment of users. Some of these relate to the positive
attributes of customary legal systems vis-à-vis formal legal systems, such as increased
geographic, economic and intellectual accessibility; cultural legitimacy and public
participation; and perceptions of increased fairness and lower corruption. There are also
situations where the customary system is the main justice provider, for example when
formal courts are non-operational due to civil conflict or following natural disaster, or
where they are highly dysfunctional.1 In such circumstances, enhancing the operation of
the customary system may be the principal means of facilitating legal empowerment. In
conflict situations, engaging with customary legal systems can also contribute to
grassroots peacebuilding efforts, for example, through efforts to strengthen local dispute
resolution capacity. Finally, where customary processes discriminate against women,
suffer from elite capture and gender exclusion, fail to meet human rights standards, and
where they lack accountability and enforceability, efforts to meaningfully develop and
change these elements is critical to the legal empowerment of users. Thus, the challenge
is how to engage in a way that is locally legitimate and retains its strengths of the
customary legal system, but at the same time responds to those elements that operate
to limit the legal empowerment of users, particularly in terms of access to justice.2

        “Legal Empowerment is the use of legal rights, services, systems and reform, by
       and for the disadvantaged populations and often in combination with other
       activities, to directly alleviate their poverty, improve their influence on government
       actions and services, or otherwise increase their freedom.”3

This recent definition of legal empowerment was formulated by Stephen Golub to
recognise, inter alia, the fact that legal empowerment work is undertaken not only by
external actors for disadvantaged populations, but often by the disadvantaged
populations themselves.4 Indeed, because customary systems generally hold a high

1
  While until recently there has been little written about engaging with customary legal systems, just in the last
year a number of articles have been written on the topic with case studies from a countries experiencing these
circumstances. For a post disaster and post conflict context, in Aceh, see Erica Harper, 'Promoting Legal
Empowerment in the Aftermath of Disaster: an Evaluation of Post-Tsunami Legal Assistance Initatives in
Indonesia' (IDLO, 2009). For a post conflict context, in South Sudan, see David Pimentel, 'Rule of Law Reform
without Cultural Imperialism: Strengthening Customary Justice through Collateral Review in South Sudan'
(2009) ExpressO . For during conflict and post conflict context, in Bougainville, see Volker Boege,
'Peacebuilding and State Formation in Post-Conflict Bougainville' (2009) 21 A Journal of Social Justice 29.
2
  It is important to note that just as culture is no longer viewed as holistic and static, but rather contested and
shifting, customary legal systems are also dynamic, evolving and responsive to change.
3
  Stephen Golub, 'The Commission on Legal Empowerment of the Poor: One Big Step Forward and A Few Steps
Back for Development Policy and Practice' (2009) 1(1) Hague Journal on th Rule of Law 101, 105.
4
  Stephen Golub, 'The Commission on Legal Empowerment of the Poor: One Big Step Forward and A Few Steps
Back for Development Policy and Practice' (2009) 1(1) Hague Journal on th Rule of Law 101, 105.



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degree of social legitimacy, meaningful change and legal empowerment will be most
effective where it results from “internal critique, debate and engagement that respects
the essential attributes of the institution rather than begins from the premise of
debunking it and seeking the imposition of an externally-defined reality.”5 This Freirian
model does not see culture or customary law as static, but emphasises the power of
people to develop and change their own culture and law. This is, of course, not to say
that outside interventions cannot facilitate, guide and support this internal debate and
development. Young points out that cultural insiders sometimes recognise and explore
elements of dysfunction within dispute resolution systems themselves, and other times
an outsider will be necessary to raise the question. He asserts that in such a case, it is
still the insider who will most effectively “find appropriate ways to implement the
consequences of the insight.”6

Professor Merry’s discussion of local social movements and human rights in relation to
gender violence provides helpful insight into the relationship between external actors
and standards to local legal systems and communities. Her discussion successfully
moves beyond universalist/relativist positions; she instead claims that rights are
“cultural resources deployed in specific cultural contexts by local agents operating within
legally and culturally plural contexts.”7 Indeed, this is true not only for rights, but also
for legal services or processes. PEACE Foundation Melanesia (PFM) is an NGO from
mainland Papua New Guinea that exemplifies such an outside intervention that has
attempted to facilitate internal critique and debate in a way that holds social legitimacy.
Also, their dispute resolution techniques have clearly been a resource deployed by local
agents operating in a legally plural context. PFM has conducted grassroots-level
mediation and restorative justice training based on customary law in Bougainville for
more than 15 years and the organization is now run purely by Bougainvilleans. These
trainings target communities and community leaders and are aimed at conflict resolution
and restoring intra- and inter-community social harmony.

Case study

Bougainville in crisis

Spanning the decade from 1988 to 1998, the conflict, or as referred to locally, the
‘crisis’, in Bougainville was complex. One aspect of the conflict was a fight for secession:
the Bougainville Revolutionary Army (BRA) fought against the Papua New Guinea
Defence Force (PNGDF) for the separation of Bougainville from Papua New Guinea.
However, there were a host of other issues and actors involved. Most Bougainvilleans did
not identify themselves with the PNG state, or a distinct ‘Bougainvillean’ identity.
Instead, loyalties lay with smaller ethno-linguistics groups or sub-groups. Further,
raskol, or criminal elements within the BRA committed human rights abuses and
terrorized local populations, causing the establishment of armed ‘home guards’ or
Resistance Forces who fought against BRA. None of these armed groups were unitary,
but were characterized by independent actors; small factions fighting ‘private’ wars
based on payback for earlier actions, or based on kinship and village loyalties.

In 1990, the leadership of the BRA unilaterally proclaimed the independence of the
Republic of Bougainville and established its own government, the Bougainville Interim

5
  Minneh Kane, J. Oloka-Onyango and Adbul Tejan-Cole, 'Reassessing Customary Law Systems as a Vehicle for
Providing Equitable Access to Justice for the Poor', New Frontiers of Social Policy, World Bank (Arusha), 2005,
22.
6
  Douglas W. Young, 'Prescriptive and Elicitive Approaches to Conflict Resolution: Examples from Papua New
Guinea' (1998) 14(3) Negotiation Journal 211, 217. The example Young gives of an element of dysfunction
that is not often recognised by insiders, is the exclusion of youth and women from dispute resolution
processes.
7
  Sally Engles Merry, 'Global Human Rights and Local Social Movements' (1997) 12 Can. L. J. 247, 249.



                                                  SMALL GRANTS PROGRAM INCEPTION PAPER | 2
Government (BIG). At this time, PNG state institutions such as a police force and the
court system had already been withdrawn, however the secessionist BIG had not
managed to establish its own justice system. Thus, in many parts of the island, a
renaissance of customary institutions and practices was occurring. In 1994, as part of
an effort to begin to resolve internal Bougainville disputes, and in recognition of the
increasing role of customary dispute resolution practices, BIG invited Peace Foundation
Melanesia to conduct a conflict resolution training session. The trainings proved popular,
eliciting a flood of requests for more.8

Peace Foundation Melanesia

Papua New Guinea’s Attorney-General and Minister for Justice, Bernard Narokobi
established the PEACE Foundation Melanesia (known as Foundation for Law, Order and
Justice until 1994) in 1988 based on an assessment that the formal court-based system
was not adequately serving the people of PNG.

On the invitation of BIG, PFM Director Pat Howley went to Bougainville in 1994.9 There
was immediate recognition of the strong commonalities between PFM dispute resolution
techniques and traditional customary approaches to conflict resolution.10 Bougainville
chiefs who attended the PFM training, and who were already involved in trying to revive
customary practices, confirmed this.11 Following the first session a variety of local actors,
recognizing the similarities with their own traditional process, requested further
trainings. With the assistance of local chiefs, PFM devised a training methodology that
was congruent with Bougainville customary principles and processes. A number of
courses were then developed: People Skills, Conflict Resolution and Restorative Justice.
A cross-section of community members were chosen as participants, including
customary chiefs, leaders of women and youth groups, church workers, civil society
leaders, magistrates, and other people in positions of service within the community.
Selected participants from the initial training sessions undertook further training to
become mediators, and some went on to become trainers-of-trainers.

PFM’s training approach

The main objective of PFM’s programme was to increase conflict resolution skills in local
communities, to in turn assist intra- and inter-community social harmony. The conflict
resolution training focused on ‘win-win’ mediation and restorative justice techniques.
These processes were seen as similar to Melanesian customary law, which emphasizes
values such as preserving community relationships and consensus-based decision-
making.12 Certainly, that the trainings were seen to be grounded in values shared by the
customary legal system might have been the key to its popularity and high legitimacy.
However, the methods employed by PFM in response to legal empowerment challenges
such as elite capture and power imbalances, and to what extent they facilitated legal
empowerment for women and disadvantaged groups, is yet to be explored. Three
questions are of particular interest to the scholarship on legal empowerment and
customary justice, as explored below:

8
  Up-to-date records of how many have been through these courses have not yet been obtained.
9
  Pat Howley is an Australian Marist brother who has been living and working in PNG since 1966.
10
   Interview with Howley, 10 February 2010. John Tompot was one of these chiefs, and thereafter conducted
thousands of mediations and trainings with PFM.
11
   Pat Howley, 'Prison Fellowship International Award: Peace Foundation Melanesia Bougainville' (2007) 7 DWU
Research Journal 73, 82.
12
   In 2010, PFM’s Mission Statement is “to be a strong and dynamic organization promoting the use of
mediation and restorative justice using Melanesian custom law as the basis of reaching consensus and
agreement.” Their Vision statement is “to provide people and community empowerment through the
establishment of sustainable community justice initiatives that uses win-win mediation and restorative justice
to repair community relationships and minimize law and order issues.” From
www.peacefoundationmelanesia.org.pg. It should be noted however, that PFM Bougainville is now operating
separately from the Port Moresby-based PFM. The latter group administer this website.



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     1. Legal empowerment: PFM’s efforts at strengthening local-level dispute resolution
        and promoting reconciliation are generally acknowledged to be quite successful.13
        Whether PFM was able to strengthen legal empowerment, however, is an
        important area of inquiry. On the one hand, mediation and restorative justice
        processes might easily have been open to power abuses and elite capture. It is
        possible that the PFM-sanctioned processes may have provided a legitimating
        forum where existing discriminatory practices would continue to be practiced,
        further limiting access to justice for vulnerable groups. However, on the other
        hand, mediation and restorative justice processes, taught and practised in
        combination with gender equality and power sharing modules, had the potential
        to significantly increase legal empowerment for vulnerable groups, enabling
        women and other disadvantaged community members to meaningfully participate
        in dispute resolution and decision-making.

     2. Elite capture: Criticisms have been levelled against the ability of mediation
        processes to deal adequately with power imbalances. 14 Such criticisms may well
        be applicable to mediation, restorative justice and customary consensus decision-
        making processes in Bougainville. Robert Barush Bush and Joseph Folger have
        described this understanding of power imbalances in mediation as the ‘oppression
        story’.15 The basic claim is that mediation, with its characteristics of informality,
        lack of checks and balances, neutral mediator and consensuality, accentuates
        power imbalances and allows more powerful parties to impose their will on
        weaker parties. This would clearly be a significant blockade to access to justice
        for vulnerable parties. While this account of power imbalances has been
        challenged, a number of the features of mediation it is claimed prevent such
        power abuses are not present, or are at least compromised, in Bougainville. For
        example, it has been asserted that the voluntary nature of the mediation means
        that if a party fears being at a disadvantage they can halt the mediation.16 While
        participation in mediation or restorative justice is voluntary in Bougainville,
        limited dispute resolution options exist. Presently users only have the choice of
        PFM-trained mediators, customary chiefs, and village courts. Further, in reality
        these options are not independent but rather, there exists a “messy mix”; while
        village courts are officially a state institution, customary chiefs often act as
        magistrates in them, and apply customary law.17

         The role of the mediator and the skill with which they conduct the mediation is
         also held to be an essential element for effective management of power
         imbalances.18 The way PFM-trained mediators deal with sensitive, controversial
         issues and power imbalances has not yet been investigated. Further, in countries
         with functioning official legal systems, mediation and restorative justice take



13
   Volker Boege, 'A Promising Liaison: Kastom and State in Bougainville' (2008) (12) Occasional Paper Series
[Online] , 15.
14
   For such criticism, see, for example, M. I. Levine, 'Power Imbalances in dispute Resolution' in A Study of
Barriers to the Use of Alternative Methods of Dispute Resolution (1948) 146, 154.
15
   Robert Baruch Bush and Joseph Folger, The Promise of Mediation: Responding to Conflict through
Empowerment and Recognition (1994), 22-24.
16
   Jordi Agusti-Panareda, 'Power Imbalances in Mediation: Questioning some Common Assumptions' (2004)
59(2) Dispute Resolution Journal 24, 29.
17
   Volker Boege, 'A Promising Liaison: Kastom and State in Bougainville' (2008) (12) Occasional Paper Series
[Online] , 22. Further, PFM mediations will often include the local village magistrate and chief, so as to not
undermine these institutions. They have also trained many magistrates and chiefs in their dispute resolution
courses. Pat Howley, Breaking Spears and Mending Hearts: Peacemakers and Restorative Justice in
Bougainville (2002), 91.
18
   Jordi Agusti-Panareda, 'Power Imbalances in Mediation: Questioning some Common Assumptions' (2004)
59(2) Dispute Resolution Journal , 24, 29-30.



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        place in the ‘shadow of the law’;19 parties can rely on legal information and
        participate voluntarily in the knowledge that if the process fails, they can take
        their dispute to the courts. This is held to play an important safeguard role
        against the misuse of power differentials.20 This safeguard is not present in the
        Bougainville context where there is currently no functioning court system above
        the level of the village court.

        If the ‘oppression story’ is true in the context of PFM trainings in Bougainville,
        these processes were open to elite capture, potentially allowing powerful
        members of the community to impose their will and prejudices on vulnerable
        members. PFM may have even provided a legitimating forum for any existing
        oppressive or discriminatory practices, diminishing access to justice and
        preventing legal empowerment.

     3. Gendered legal empowerment: In mediation and restorative justice techniques,
        which employ degrees of consensus decision-making, all parties to the dispute
        should be satisfied, including traditionally vulnerable and overlooked
        stakeholders. Thus, it is also possible that by emphasizing aspects of this, PFM’s
        approach increased legal empowerment. The PFM trainings could have
        empowered women and other vulnerable groups to have a significant input into
        dispute resolution processes and decision-making, in various capacities: as
        mediators, as parties to disputes, as community leaders or advisors in disputes,
        or as victims of crimes. Indeed, there were several features of the PFM trainings
        that aimed to facilitate legal empowerment, especially in relation to women.

        First, PFM was aware that women were key victims of the conflict. They hence
        developed modules within mediation and restorative justice trainings on, for
        example, women and violence, with a view to challenging existing discriminatory
        attitudes.21 Women were encouraged and supported to take their grievances to
        mediation, instead of remaining quiet, as in the past. Dealing with such issues
        was seen by PFM as integral to restoring peace and justice. Second, PFM also
        took steps to ensure that a high proportion of training participants and mediators
        were women (while PFM aimed for a 1:1 female-male gender ratio, the actual
        participation ratio is estimated to be 1:3). Third, trainings focused on power
        sharing in relation to customary authority and encouraged the idea of the whole
        community being involved in justice and customary decision-making. One of
        PFM’s aims was that women would be seen as equal partners in developing village
        life, and would regarded as part of the village leadership.22 Drawing from
        Foucault’s view of productive power, the trainings emphasised that power should
        could be transformed from a ‘power over’ position, where customary chiefs or
        armed men use their power to dominate the will of others, to a ‘power with’
        stance, where the power lies in the parties’ achievement of a commonly agreed
        resolution.23 One early anecdotal example that indicates a possible change in
        women’s involvement in dispute resolution is when an excellent female PFM-
        trained mediator, was approached by three chiefs to arrange mediation between
        them.24 In other areas, the program has been criticised by customary leaders for

19
   This phrase was coined by Mnookin and Hauser in Robert Mnookin and Lewis Kornhauser, 'Bargining in the
Shadow of the Law' (1979) 88 Yale L. J.
20
   Jordi Agusti-Panareda, 'Power Imbalances in Mediation: Questioning some Common Assumptions' (2004)
59(2) Dispute Resolution Journal , 24, 30.
21
   Interview with Howley, 10 February, 2010.
22
   Pat Howley, 'Restorative Justice in Bougainville' in Sinclair Dinnen (ed), A Kind of Mending: Restorative
Justice in the Pacific Islands (2003) , 251-252.
23
   Pat Howley, 'Mediation and Restorative Justice: Participant's Manual' (Peace Foundation Melanesia, ).
24
   Pat Howley, Breaking Spears and Mending Hearts: Peacemakers and Restorative Justice in Bougainville
(2002) , 90-91. However, it should be noted that the women called in two men to take the lead in this
negotiation.



                                                  SMALL GRANTS PROGRAM INCEPTION PAPER | 5
         empowering youth, women and alternative leaders and further reducing the
         authority of the chiefs.25

                   Eliminating gender discrimination, heightening the capacity of women to
                   assert their legal rights and be involved in dispute resolution, and
                   strengthening participatory decision-making are three key elements of
                   legal empowerment.

         In the trainings women were encouraged to be active participants and to express
         their views with confidence. Men were encouraged to see women as equals, to
         respect and listen to their views and to apply the same standards of justice to
         them.26 They were also informed of their equal rights under the PNG Constitution
         with regards to participation in political activities, freedom of expression and
         assembly, protection from unjust deprivation of property, of life, liberty, security
         and the protection of the law.27 These modules were taught in an elicitive,
         discussion-based way that appealed to Bougainvilleans and increased their
         experience and confidence in defending what they believe.28 It is, perhaps, an
         example of how an outside organization can facilitate “internal critique, debate
         and engagement that respects the essential attributes of the institution”, which
         according to Kane, is the best way forward for achieving meaningful change in
         customary systems.29 It could have been that these trainings also increased the
         confidence levels of women and disadvantaged groups to participate in dispute
         resolution more meaningfully. This was recently held to be a worthwhile goal in
         legal empowerment initiatives.30 However, it is important to assess whether
         increased confidence was translated into increased participation in dispute
         resolution. Thus, it could be that PFM’s emphasis on consensus-based decision-
         making and mediation increased access to justice and legal empowerment for
         women and other vulnerable groups.31




25
   Douglas W. Young, 'Prescriptive and Elicitive Approaches to Conflict Resolution: Examples from Papua New
Guinea' (1998) 14(3) Negotiation Journal 211, 214.
26
   Pat Howley, 'Mediation and Restorative Justice: Participant's Manual' (Peace Foundation Melanesia, ).
27
   Pat Howley, 'Mediation and Restorative Justice: Participant's Manual' (Peace Foundation Melanesia, ).
28
   Pat Howley, Breaking Spears and Mending Hearts: Peacemakers and Restorative Justice in Bougainville
(2002), 88-89.
29
   Minneh Kane, J. Oloka-Onyango and Adbul Tejan-Cole, 'Reassessing Customary Law Systems as a Vehicle
for Providing Equitable Access to Justice for the Poor', New Frontiers of Social Policy, World Bank (Arusha),
2005, 22.
30
   'Legal Empowerment for Women and Disadvantaged Groups' (ADB and The Asia Foundation, 2009), 70.
31
   Anecdotal evidence suggests that direct confrontation is culturally repugnant and so people will often submit
to injustice rather than confront (in a court or otherwise) the perpetrator. However, mediation is seen to
reduce the stress of a direct confrontation.



                                                   SMALL GRANTS PROGRAM INCEPTION PAPER | 6

				
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