DAVAO CITY (MindaNews / 14 July) — As defined in the Comprehensive Agreement on the Bangsamoro (CAB), Transitional Justice and Reconciliation (TJR) seeks ways to redress grievances, correct historical injustice, and address human rights violations against the Bangsamoro people. These were committed over the decades, even centuries of conflict, and still impact Bangsamoro communities today. A TJR commission has been set up to conduct research and make recommendations as to what sort of processes and mechanisms should be used to do address these issues. Thus, questions of crime and punishment are relevant at all levels, from the interpersonal, societal and cultural levels.
Therefore, the study of crime and punishment has something to do with the Bangsamoro Peace Process. More so, an interesting set of convergences between criminology and the Bangsamoro peace process emerged because “Advancing Criminological and Criminal Justice Theories from Asia” was the theme of the annual conference of the Asian Criminological Society (ACS) just recently — on June 26-29 — in Osaka, Japan.
First, participants in both the Bangsamoro and ACS are re-defining fundamental understandings of justice, moving away from adversarial methods of struggling for justice. Second, they both involve efforts to re-assert unique identities and cultural references for the creation of just and peaceful communities. Finally, these efforts by both the ACS and the Bangsamoro people of Mindanao intend to mitigate the negative, external (ie, western) influence on local culture, development and justice practices in Asia.
In sum, both are attempting to define non-violent, cultural modalities of justice that are grounded in local realities. More specifically, Dr. Jianhong Liu of the University of Macau and president of the Asian Criminological Society, presented an Asian Theory of Culture and Criminal Justice in his speech, “Culture and Criminal Justice – an Asian Paradigm Theory” at the ACS on June 27
He proposed that Asian concepts of crime and justice are “relational concepts” with a collective orientation, as opposed to western “individualistic concepts.” He stated, “the target of western criminal justice and crime control is the crime, while the target of Asian crime control concerns human relations.”
He notes that western values of independence, materialism and individual rights are the result of social organization defined by individualism, and are associated with analytical thinking, a state-centered concept of crime, and an offender-focused process that marginalizes victims by focusing on punishment. Ironically, this leads to legal processes that are fundamentally adversarial – using one kind of conflict (prosecution) to solve another kind of conflict (crime).
Thus, Dr. Liu concludes that the western way of justice is a “conflict approach” to justice, which uses adversarial “due process” as necessary in the search for truth. He states, “This notion is not widely accepted in Asian cultures since a conflict approach can also lead to concealing the truth, as the adversarial process is not isolated from social stratification in power and influence. The resources of the powerful and wealthy can be translated into advantageous positions in the adversarial process.”
In short, Dr. Liu diagnoses one of the fundamental flaws that permeates the western legal system operating in the Philippine context: in a process that relies on a conflict approach to justice (ie, legal court system), the powerful maximize their social and economic advantages, manipulate the system and oppress those whom the system is intended to serve. This cultural analysis of justice processes raises questions for both the transitional justice mechanisms and the multiple systems (Sharia, Tribal Courts, ADR and Civil courts) to be set up as justice institutions in the future Bangsamoro.
First, if, as Dr. Liu states, “The resources of the powerful and wealthy can be translated into advantageous positions in the adversarial process,” than a transitional justice system that primarily relies on an adversarial, western conflict approach to justice (prosecutions, legal trials and tribunals) could reinforce “social stratification in power and influence.” Are these not the very conditions that the Bangsamoro revolutionary movement is fighting against?
Second, how are we to understand the relation of a conflict approach to justice with the reconciliation aspect of “Transitional Justice and Reconciliation?”
Third, if Dr. Liu is correct in stating that, “this [conflict] approach is not widely accepted in Asian cultures,” how will people feel their justice needs are being served at the grass roots community level, people who are immersed in the Mindanawon cultural reality rather than liberal western culture? In other words, how effective will Transitional Justice and Reconciliation be if the transitional authority and Bangsamoro government are over-reliant on western, conflict approaches to justice?
Consequently, this cultural analysis of justice points out some potential pitfalls in how to approach justice in the new Bangsamoro entity. Part 2 will detail the elements of an Asian approach to justice and explore those implications for the Bangsamoro. (MindaViews is the opinion section of MindaNews. Jeremy Simons is a peace worker living in Davao City and can be reached at [email protected])