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- Convenors:
-
Pampa Mukherjee
(Panjab University)
Amalendu Jyotishi (Amrita University)
Send message to Convenors
- Track:
- General
- Location:
- University Place 4.211
- Sessions:
- Tuesday 6 August, -, -
Time zone: Europe/London
Short Abstract:
This panel invites papers that deal with issues on human rights, gender rights and rights to natural resources in the Asian context The idea is to explore, understand and analyze various institutions and governance mechanisms within the legal pluralist framework.
Long Abstract:
In the last few decades, Asia as a region has experienced major economic, political and social transitions that have implications on its institutional and governance structures. The processes of democratization and global international engagements have resulted in redefinition of various legal aspects particularly those that are in conflict with the existing practices. Essentially, being a plural society, many Asian nations in recent times are also dealing with additional tensions some of which arises due to their contestations with existing statutory laws. Prevalence of these kinds of conflict, protests and negotiations can be particularly observed in institutions associated with the governance of human rights, gender and natural resources, both at the macro and micro level. In this context legal pluralism as a perspective assumes significance as it not only provides an interesting framework to understand and analyze complex issues associated with institutional governance at different levels but also provides meaningful alternatives to address such concerns. Such engagements are in fact necessary for need based and effective policy formulation in respective countries in the region
Accepted papers:
Session 1 Tuesday 6 August, 2013, -Sulistyowati Irianto (University of Indonesia)
Paper short abstract:
This paper is at aimed to challenge women’s access to justice in inheritance disputes and inheritance law as it is applied by the Indonesian religious court as well as the district court. This research examines further how inheritance issues are settled as trouble-less cases out of court. How women are projected in Islamic inheritance law and its application in the daily life of the society
Paper long abstract:
This paper is at aimed to challenge the position of women in inheritance law and its practice. There are complicated multilayers of legal pluralism concerning Indonesian inheritance law, as legal pluralism is not only deal with the co-existence of more than one legal order, but each existing legal system, no matter state law, adat law, or Islamic law contains its own legal pluralism. Inheritance issues will also be a lens through which we can see the contestation and negotiation of religio-politics as reflected in disputes about jurisdiction of court institutions since 1937 under Dutch administration to the present time.
There are two conceptual as well as practical problem which become the grounds of this research. Firstly, it challenges women's access to justice in inheritance disputes and inheritance law as it is applied by the religious court as well as the district court. To explain this formulated problem, 169 cases were gathered from the Supreme Court which settled from 2000 to 2009, and will be analyzed in quantitative perspective.
Second, this research concerns how inheritance issues are settled as trouble-less cases out of court. It is analysed on how women are projected in (Islamic) inheritance law and its application in the daily life in the society. In this part, we can see how inheritance affairs affect the women's perception of inheritance law and perhaps affect their life too. This part of the research will review women's experiences in trouble-less inheritance cases through field work conducted in West Java (Cianjur and Depok).
Pampa Mukherjee (Panjab University)
Paper short abstract:
Based on recent case studies of 'honour killings' in Haryana,a state in Northern India the paper analyses how the institution of caste/khap panchayat—an extra-judicial body with an ancient and medieval legacy negotiates with the statutory legal system in contemporary India
Paper long abstract:
Based on recent case studies of 'honour killings' in Haryana,a state in Northern India the paper analyses how the institution of caste/khap panchayat—an extra-judicial body with an ancient and medieval legacy negotiates with the statutory legal system in contemporary India These institutions not only confront and defy the formal legal system in recent times but also enjoy legitimacy within the community that it represents.
The study argues that the involvement of Khap Panchayats,the community courts run by caste groups in many parts of India is an excellent example to highlight the way in which a institutions based on tradition are used in modern political purposes. In doing so it raises larger questions on how a rights-based discourse of modern nation-states forms a complex terrain where citizenship of the state and membership of communities are negotiated and contested through the unfolding of complex legal practices. It emphasizes that there exists a complex interaction between tradition and modernity where the governance of polities (state statutory governance bodies) and governance of communities (caste panchayats) are in continuous tension.
Myrthena Fianza (CSSH, Mindanao State University, Marawi 9700 Philippines)
Paper short abstract:
The reconstitution of informal land rights prevalent in the Philippine Muslim autonomous region not only by state and non-state intrusions but through struggle is examined.Reaffirmed is the view on plural legal orders as 'interactive' and an apt approach to the region’s recurring resource disputes.
Paper long abstract:
With a view to redress loss of land rights, past inequities, disempowerment, and lately, environmental degradation, the Philippine state continues to embark on a broader range of policy-and-law reforms. The recent production of new legal frameworks covering agrarian reform, ancestral lands, indigenous/local governance, among others, aims at ensuring resource tenure and property rights especially in more vulnerable communities in contested domains yet undergoing changes with the constant incursions of capital, state-centric projects, and other external influences. Visible is the substantial erosion of pre-existing notions of landholding based on community access rules and the alteration of hitherto village authority structures (as the "datu"/sultanate and kinship-based systems) and jural practices (e.g., "adat", " agama") regulating the locality's common resource spaces, and the conflicts ensuing from the process. While this is well expounded in earlier literature, there remains a dearth of studies explaining the people's ways of resistance, the "disorderly" social practices, and maneuvering within coexistent legal systems to one's advantage (some driven by the nature of the community's internal social and power relations than by the state's behavior or incapacity) challenging new rules informing property rights. Drawing from valuable work by scholars and data from our case studies, the paper explores the reassertions and reconstitution of informal land rights prevalent in the Philippines' Muslim autonomous region not only by state-market and outside intrusions but as reshaped through struggle; reaffirming the view on plural legal orders as "interactive", hence a more suitable starting point towards resolving Mindanao's long history of recurring land disputes.
Lidwina Inge Nurtjahyo (Faculty of Law Universitas Indonesia)
Paper short abstract:
This paper compares the pattern of land dispute settlements between the Kotabatu’s people (Bogor) and the Tulehu and Suli’s (Maluku). There were some differences found. First, the role of the intermediaries and second, the tendency of the people to go to the court after the mediation failed.
Paper long abstract:
This paper describe the differencies pattern of land dispute resolution between the Kotabatu people in Bogor (research held from 2008 to 2012) and the Suli and Tulehu's people in Maluku (research held in 2011). However, in those places, the dispute reports were not listed in the administrative record of the village government. The resolutions were usually bringing the cases into mediation with the village chief as mediator. If mediation fails, the parties then went straight to the courts. In Tulehu and Suli, Maluku based on research in 2011, some cases of land disputes in Tulehu, rarely brought to the court. The people prefered to brought the disputes to the king or adat council for indigenous mediated. If not successful, the parties took the oath by religious leaders. The Court was just the last option. The differences between Kotabatu and Suli-Tulehu pattern in dispute settlements were caused by some emotional and social attachments among individuals who were involved in the dispute; the compliance with local custom, and also aspects of the impact of globalization on the economic value of land.
Amalendu Jyotishi (Amrita University)
Paper short abstract:
With the growing concerns over rights on natural resources, in this study of fisheries management in Tawa reservoir in India we examine which type of management system i.e. state, private or community address three important issues of equity, efficiency and sustainability of reservoir fisheries.
Paper long abstract:
In a developing economy context, open water inland fisheries in general and reservoir fisheries in specific not only play an important role for the diet and health of the population, but also the livelihood of many people engaged in this activity. Reservoir fisheries often remain a contentious issue, largely due to huge displacement of native population in the process of construction of dam. This becomes a point of conflict between the state and the affected people reflected even in the fisheries management. A third dimension is added when a traditional fishing community who is not among the part of the displaced community is also involved in demanding its right over exploiting fisheries resources. Unlike other types of open fisheries, reservoir fisheries need management in terms of maintaining the resource balance. In this context, it is important to examine which types of institutions are appropriate in management of such resource. In the search for appropriate institution, it is important to keep in mind the equity, economic efficiency and resource sustainability. Fisheries management in Tawa Reservoir in India is an interesting case that underwent state, private and cooperative management. Through this case study we attempt to understand which type of institution appropriately and reasonably addresses the three critical parameters of equity, efficiency and sustainability in reservoir fisheries management. Our results overwhelmingly support community management through cooperative system.