Formal Justice System Research Articles

Integration of Kalinga Indigenous Law in the Implementation of Modern Criminal Law in Tabuk City

In all societies, it is common for people to look to shared substantive norms to resolve problems rather than to resort to legal norms, whether or not there is also a strong formal system of law. The operations of both formal and informal justice systems should ideally be complementary. In the mountains of Cordillera, the Kalinga “Bodong” institution governs the lives of the Kalinga ethno linguistic group. This paper determined the agreement on the integration of Kalinga indigenous laws in the implementation of modern criminal law in the City of Tabuk, Kalinga. The study was conducted among the Personnel of the Philippine National Police stationed in Tabuk City during the period 2011-2012. Descriptive Statistics were used to analyze the research data. Interviews were also conducted to validate the data collected. The study revealed that the PNP Personnel strongly agreed on the integration of Kalinga indigenous law in the implementation of modern criminal law in Tabuk City but there are still problems that must be resolved in order to attain full integration. Based on the results of the study, it is recommended that some provisions should be amended to become relevant and complementary with the provisions of the laws of the land. Keywords - Social Sciences, Indigenous Laws, Kalinga Bodong, Northern Philippines

Procedural Justice for Victims and Offenders?: Exploring Restorative Justice Processes in Australia and the US

Sociolegal research indicates that when citizens perceive that legal processes and procedures are fair, both positive and negative legal outcomes will be viewed as acceptable. However, little is known about perceptions of fairness in informal contexts such as in restorative justice (RJ) practices and with victims (and offenders) who participate in these programs. Drawing on interviews with key actors engaged in post-conviction RJ programs for serious crimes in Australia and the USA, this paper asks, do post-conviction therapeutic RJ programs for violent crimes enhance procedural justice for victims and offenders? The data reveal that RJ is compatible with procedural justice for both victims and offenders. Specifically, RJ aids in correcting the harms created by the formal criminal justice system and, thus, satisfies and even greatly enhances procedural justice goals for both victims and offenders.

Report of the Special Rapporteur on Extreme Poverty and Human Rights

In the present report, the Special Rapporteur on extreme poverty and human rights analyses the obstacles to access to justice for persons living in poverty. Access to justice is a fundamental right in itself and essential for the protection and promotion of all other civil, cultural, economic, political and social rights. Without effective and affordable access to justice, persons living in poverty are denied the opportunity to claim their rights or challenge crimes, abuses or human rights violations committed against them. The Special Rapporteur emphasizes that improving access to justice for persons living in poverty requires tackling a range of legal and extralegal obstacles present both within and outside of the formal justice system, including social, economic and structural obstacles.

Mapping Perpetrator Prosecutions in Latin America

This collaborative article examines how two academic institutions and one nongovernmental organization cooperated to map recent trial activity for past human rights violations, applying social science techniques to assist survivors’ and relatives’ groups as well as litigators in making informed strategic choices in their interactions with the formal justice system. The article discusses how methodologically rigorous data collection and data requests to public bodies can be used to advance a proaccountability agenda. The authors show how a range of civil society and state actors have changed justice system outcomes in Argentina, Chile and Peru and highlight some lessons learned about engaged, policy-relevant research.

For Better or Worse? Gender and Perceptions of Formal and Informal Justice Systems in Afghanistan

We draw on survey data from a national probability sample of 6,406 Afghan adults (aged 18 years and older) to explore gender differences in the perceptions of formal and informal justice systems. The study utilizes binary logistic regression to probe whether men and women differ in their attitudes and the extent to which other factors may mediate both within– and across–ethnic group differences. We find that women have more confidence in the formal system than their male counterparts, whereas the opposite is true for the informal system. The scholarly and policy implications of these results are discussed.

Socio-Demographic Variables Predicting Formal vs. Informal Juvenile Justice System Handling and Associated Outcomes

This analysis compares and contrasts first-time juvenile offenders enrolled in a community-based balanced and restorative justice program whose cases were processed either informally or formally. The study examines contributors to both levels of processing and re-offending. This study examines how family characteristics are associated specifically with level of processing, which are unique attributes compared with juvenile justice studies in the literature. Multivariate predictors of formal levels of processing were age, gender, race, type of offense, marital status of biological parents, and the number of children in the home. Analyses also found that almost twice as many youth who were formally processed were recidivists at 1 year as compared to youth who were informally processed. No significant difference was found in regards to rates of recidivism at 3 years.

Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects

Abstract Though Ethiopia has never been colonized, the voluntary importation of European laws and the exercise in nation building has resulted in a situation whereby the formal and informal legal systems have to coexist in harmony or disharmony. Both systems are extant, though the future appears to be favourable for the prevalence of the formal system. This article argues that the informal system is showing signs of irrelevance and may be prevailed by the formal. It also counsels that the formal system should be helped to cleanse itself from the many shortcomings that are challenging its relevance and legitimacy.

Penality, Power, and Polity

Worldwide, the punishment of law violators takes many forms, with some countries relying heavily on incarceration and others favoring a mix of punishments including incarceration, corporal punishment, and the death penalty. Determining why a nation chooses to implement one sanction over another requires an examination of political factors. While some notable research has examined the correlations between incarceration rates, death penalty retention, and various measures of political power and repression, the influence of political factors on punishment needs a fuller explication. Specifically, the use of corporal punishment as a criminal sanction has not been fully examined within the political repression and punishment literature. To address this gap, authors employ a cross-national comparative approach to examine how repressive governments and failing regimes influence the use of corporal punishment by the formal justice system. Findings reveal that more repressive and failing regimes are more likely to use corporal punishment, compared to freer and more sustainable nations.

Laboratory Experiments: A Meaningful Contribution to Restorative Justice Research?

Advocates of restorative justice (RJ) argue that the process offers a more effective means of responding to crime than the formal criminal justice system, and many studies have evaluated RJ positively across a variety of outcome measures, particularly in comparison to court based procedures. However, the RJ literature contains few studies that directly test the factors affecting RJ participants’ behaviours and experiences, so little is known about the specific factors that influence how, and for whom, RJ works. In this paper, we argue that the expanded use of experimental laboratory methodologies will broaden and strengthen our understanding of the basic mechanisms by which RJ operates. We describe some ways in which experimental laboratory research may enhance understandings of apology in restorative settings as well as public support for RJ, and we emphasise the need and the potential to overcome barriers of artificiality in laboratory settings. This analysis of laboratory methodologies and the field of RJ research indicates that creative and well-designed experimental laboratory studies can advance knowledge in this area, allowing researchers to investigate how particular components of RJ contribute to the success or failure of RJ processes.

Neither State Nor Custom – Just Naked Power: The Consequences of Ideals-Oriented Rule of Law Policy-Making in Liberia

In this article we provide an empirically grounded critique of the internationallydriven ‘Rule of Law’ policy approach in post-conflict Liberia by highlighting the consequences of policy-makers difficulties in coming to terms with the realities of legal pluralism. Informed by a ‘progressive’ intent to establish a single formal justice system for all Liberians, this approach has promoted policies that ignore or seek to constrain customary justice institutions because they are seen as violating human rights and falling short of international justice standards – even though they are preferred by most of the population. These efforts also involve a top-down approach to reconstituting and reforming the formal legal system that, to date, has largely neglected capacity-building at the local level while emphasizing narrow technical remedies (such as legislation revision) that fail to account for social, economic, and political realities. This approach has undermined the customary justice systems without improving the capacity or performance of the formal justice system – resulting in a growing ‘justice vacuum’. For most Liberians the quest to obtain justice in this ‘vacuum’ has increasingly become little more than an effort to secure advantage over opponents through the mobilization of social networks, by exercising political and/or economic power, or through other extrajudicial means. In this context ‘customary and ‘state/formal’ justice institutions are not approached by most Liberians as distinct avenues for seeking justice but rather as poles in a single power topography. This topography includes a wide array of other actors and institutions that are not a part of either the formal or the customary justice systems but who are often appealed to and frequently affect justice outcomes. In conclusion we consider several political effects of the constraint of customary justice and the broader implications of dismissing pluralism for Liberia’s delicate post-conflict peace building and political development processes.

A Word of Caution: Police Cautioning as Juvenile Diversion and the Need for Regulation in the ACT

In June 2011, the ACT Government released the ‘Towards a Diversionary Framework for the ACT’ Consultation Report (the Consultation Report). Based on a territory-wide consultancy and stakeholder submissions, the Consultation Report lays the foundations for the innovative development of a diversionary framework for the ACT juvenile justice system. The current study focuses on the role of police in the delivery of this diversionary framework and assesses police cautioning as a diversionary mechanism. The paper argues that, as the first point of contact for young people with the formal criminal justice system, and a significant point for diversion, police and the cautioning schemes they administer should be at the fore in the development of a diversionary framework for the ACT. The paper then argues that a strong regulatory framework for police cautioning is essential if cautioning is to be an effective component in a diversionary framework for the ACT. However, it finds that, at present, police cautioning of young people in the ACT is substantively unregulated. The paper therefore proposes a framework for regulation of cautioning in the ACT to enhance the effectiveness of police cautioning as a diversionary mechanism. The foundations of this framework are threefold: - First, that effective diversion does not necessitate complete exclusion of the criminal justice system and diversion must be seen as a means, not an end. - Second, that it is crucial to have an in depth understanding of the ‘players’ involved in the juvenile justice system – young people and the police – and the dynamic between these groups, so the system can be responsive to these realities. - Third, that an effective regulatory framework must comprise three strategies: rules (in the form of legislation and policy), training and education, and organisational structure.

The Reform of the United Nations Administration of Justice System: The United Nations Appeals Tribunal after One Year

Abstract This article surveys some emerging issues in the jurisprudence of the new United Nations Appeals Tribunal. Through an analysis of both procedural and substantive questions that the tribunal has faced in its first year (for example specific performance, production of documents, and whistleblower protection), the article offers an assessment of the implementation of the reform of the formal justice system of the United Nations. The developing jurisprudence of the tribunal will be an important indicator of the success or failure of the implementation of an independent system of justice within the United Nations.

Control social y castigo: percepción del castigo en funcionarios policiales venezolanos

The paper addresses issues of the meaning of punishment for the police and the moral justifications for its application, using data from 14 interviews with officials from two police forces in the area of Caracas, Venezuela. Although, at first glance, the exercise of the power to punish is perceived by the police as the jurisdiction of criminal judges, a more detailed reading indicates that they perceive, among the general public, a demand to act as direct executors of punishment. Thus, forms of organization and justification of illegal punishment appear, with these officers accepting a delegation or implied consent by other operators in the justice system. There is also the emergence of a clientele of punishment, formed by morally devalued people with little power of social demand, although both dimensions keep certain autonomy. It concludes with proposals to enlarge the scope of research and to analyze the extent and consistency of perceptions of inefficiency of the formal criminal justice system and its influence on the development of the power of direct punishment by the police.

The spirit of the National Peace Accord: The past and future of conflict resolution in South Africa

This article seeks to examine the evolution of the conflict resolution community in South Africa through a combination of history and policy analysis. Each section roughly corresponds to the past and future of conflict resolution in the country. The connection between these sections is at times causal – in the sense that some events directly shaped the next – but more often thematic – meaning that certain trends may be traced throughout the evolution of the community. Consultation with more than ten conflict resolution organisations and interviews with over twenty leading practitioners offer valuable insights to the investigation. The article begins with an analysis of the rise and fall of the National Peace Accord. The study demonstrates that government endorsement of the Accord did not detract from the ability of the peace committees to furnish the nation with a reservoir of practical conflict resolution skills. Communication, aided in part by the South African Council of Churches, helped avert violence and steer the country clear of civil war. Peace work was more successful when national, regional, and local levels were coordinated. At the same time, the Accord’s attempt to resolve greater structural inequalities in its peacebuilding initiatives fell short of its goals. The business community enjoyed managing the process, but offered little in terms of actual resources and training as it high-tailed it ‘back to the balance sheets’.1 The second section of the article analyses the work of the South African Law Commission’s Project 94. This project would mark a shift to the spirit of the National Peace Accord by wedding local conflict resolution mechanisms to the state. The places to which people already go to resolve conflicts – the ‘other law’ – have been providing justice to South Africans for decades. But recognition of these ordering mechanisms is itself beset with difficulties. The ‘other law’ is pluralistic in nature, making it difficult to make naturally subversive and organic entities conform to the formal justice system. The state is under-resourced, but seems wary of granting too much power to unpredictable dispute resolution structures. Guidelines may provide some certainty, but this does not disguise the uncertainty of the political process itself – the Draft Bill may disappear once it enters the legislature. This political reality is compounded by the fact that the Draft Bill itself permits either the government or community dispute resolutionstructures to end their liaison at any time, undermining commitment. The creation of a new National Peace Accord therefore appears unlikely in the short term. The hope is that the reader will leave with a better understanding of the conflict resolution community and of the complexity of issues facing South Africa today. If nothing else, South Africa’s unbridled forays into conflict resolution will be revealed as undeniably inspiring.

Garda Diversion of Young Offenders: An Unreasonable Threat to Due Process Rights?

Garda Diversion of Young Offenders: An Unreasonable Threat to Due Process Rights? Liz Cambell Address for Correspondence: Government of Ireland Scholar & Law Tutor pit, National University of Ireland, Cork lizjcambell@gmaiLcom Diversion programmes play a significant role in the field of youth justice, as an alternative to the conventional court process, which aim to prevent the entry of the child into the formal justice system. The long-established practice of diverting certain young offenders from prosecution ensures that children are not drawn into the criminal justice system and are not given a criminal record (Goldson, 2000: 35). A non-statutory diversion programme entitled the Garda Liaison Scheme was established in Ireland in 1963, which diverted less serious young offenders from prosecution (Report of the Committee Appointed to Monitor the Effectiveness of the Diversion Programme, 2003, para. 3.1). This scheme was placed on a statutory footing by part 4 of the Children Act 2001, an Act which represents a major reform of the law pertaining to young justice. Whilst a diversion programme has been established under part 8 of the Act which concerns those juveniles who are being prosecuted for a crime, this article will concentrate solely on the pre-trial diversion programme, given the particular issues of due process which arise in this regard.

Restorative Justice through a Children's Rights Lens

AbstractRestorative justice is an alternative to the formal criminal justice system which focuses on repairing the harm caused to the victim of the offence, effecting reconciliation between victim and offender, and the re-integration of the offender. Its use is widespread in national youth justice systems. This article will analyse the use of restorative justice in connection with offending by children. It will be argued that despite evidence of endorsement by the Committee on the Rights of the Child, the fundamental concepts of restorative justice are at odds with a children's rights model of youth justice as required by international standards. Not only do similar concerns about due process rights exist for children as for the adult system, it is difficult to reconcile the best interests of the child standard with the victim focused approach of restorative justice, and there are doubts as to whether children have sufficient maturity for remorse and reintegration.

PROTOCOL: The impact of juvenile system processing on delinquency

PROTOCOL: The impact of juvenile system processing on delinquency

Traditional Justice and Gender Based Violence in Timor-Leste

This study was initiated by The International Rescue Committee (IRC, theirc.org) who had been working in the area of Gender Based Violence in Timor Leste for over two years. The principal aim of this study was to gather information regarding local justice systems in Timor-Leste and how these systems treat cases of gender based violence, to inform development of the organizations’ programmes responding to women experiencing violence in the home. The report is based on 32 full days of ‘field research’ (which took place between March and August 2003) in which over 60 interviews and 6 Focus Group Discussions were held with women in rural areas and with relevant policy actors at national level. Major findings include that women have minimal and often superficial participation in local justice hearings and find that the rulings which are passed are often based on the administrators of justice own biases and cultural beliefs regarding women’s status in society. Women used local justice because of its basis in their culture and the fact that it is a familiar and known concept. It was seen however to often blame women for the cases of violence presented and women users were dissatisfied with this characteristic. Police were perceived to have more force and capacity to scare violent husbands into stopping violence, even though women cannot be guaranteed that police officers will take their cases seriously, nor ensure that they are no longer exposed to real threats. The formal justice system presents challenges in terms of biases against women and problems of access for rural women. A combination of the two systems were thought to be most forceful by respondents. The two justice systems, which are currently running alongside each other in Timor-Leste, are failing to adequately and fairly deal with cases of gender based violence which women present to them. Both are inherently patriarchal in their attitudes towards both women and the violence they experience. However, the research finds that both systems do have positive traits which need to be built upon and provides recommendations to ensure that women’s rights are both protected and promoted in a culturally accepted way.

Conflict Management and Resolution among Beja Pastoralists: Elements and Procedures of the (Salif) Customary Law

Abstract Sudan has recently been plagued with conflicts, particularly in pastoral areas, mostly due to competition over resources. Many of these conflicts have developed into civil wars, resulting in the disintegration of the social fabric and disruption of the coexistence among those societies. Peace agreements were signed, reconciliation conferences held and models for conflict transformation tried, but all failed. This paper provides a model for the indigenous patterns of conflict prevention, management and resolution. Despite the scarcity of natural resources, the adverse environmental conditions and the heterogeneity of the inhabitants of Eastern Sudan, the frequency of conflict was the lowest in the country. The main reason seems to be the commitment to the salif (code of behaviour), which constitutes the reference for settling disputes and is the measure for belonging to the group. The merits of the Beja customary system and the reasons for its success in preventing and resolving conflicts is, unlike the formal justice system, its valuing of human life, its preference for compensation as opposed to revenge and retaliation, and its acceptance by all pastoral Beja communities.

Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?

The author examines how developments in international criminal law — including creation of the International Criminal Court and various hybrid tribunals — can have an impact on rule-of-law building efforts in post-conflict societies. Although trials of atrocity perpetrators primarily and appropriately focus on fairly trying the accused individuals, these processes also have a wider impact on public perceptions of justice and potentially can influence a society’s ability to embrace rule of law norms. The quality of outreach and capacity-building accompanying these trials may well have a decisive effect on whether these proceedings, on balance, strengthen or undermine public confidence in justice and justice institutions in societies recovering from atrocities. This piece stresses the need to supplement international and hybrid criminal trials with more meaningful outreach to the affected populations, and with more systematic domestic capacity-building and empowerment aimed at both formal justice systems and civil society.