PAGDARO SA KALINAW: Just Coincidence? (Part 2) Harmonizing Transitional Justice, Legal Pluralism, Policing and Penology in the Bangsamoro

DAVAO CITY (MindaNews /19 Oct) — The insights from Dr. Jianhong Liu, chair of the Asian Criminological Society, into the contradictions between Asian socio-cultural realities and the underlying socio-cultural assumptions of western systems of justice are very relevant to the development and implementation of Transitional Justice and Reconciliation (TJR) in the Bangsamoro peace process as well as the justice institutions of the new Bangsamoro government.

Dr. Liu states that an Asian approach to justice is based on relational cultural values of social attachment, honor and harmony. These produce a concept of crime oriented to the effects of crime on social relationships in the community, rather than crime being seen as a violation of an abstract system of laws found in the legal system the Philippines inherited from west.

Dr. Liu therefore proposes that Asians would approach justice differently than in the west, through a holistic, substantive and educational process focused on restoring harmony and repairing the harm in the community – a relational approach. This is in contrast to western approach that emphasizes punishing and ostracizing offenders through incarceration and the humiliation of public trials in a highly procedural process – what he terms a conflict approach.

In order for the Bangsamoro to avoid the pitfalls of the conflict approach (as outlined in part 1 of this essay), it is important to ask the question, what does a Bangsamoro approach to justice look like? Within the general parameters of an “Asian paradigm” of justice are diverse Asian subcultures, which must be further localized to Mindanao, which is also a heterogeneous social reality. This means, there is not really even one “Bangsamoro approach”, but rather, a menu of approaches that the crafters of the Comprehensive Agreement have wisely included under the banner of “legal pluralism.”

Legal pluralism is like a platform of justice with four legs: Sharia law, Tribal Customary law, Civil courts and Alternative Dispute Resolution that reflect the diverse social realities of the Bangsamoro. However, there is far less clarity as to the Transitional Justice and Reconciliation (TJR) aspect, which seems to be “floating” above Mindanao socio-political-cultural milieu, awaiting further definition. It would be better if TJR also mirrored the 4-part system of legal pluralism to be implemented in the Bangsamoro. Then there could be some synergy, shared experience and strength gained from the interaction of transitional justice processes, Bangsamoro justice institutions and the Bangsamoro local context.

It is also a critical disconnect that the policing aspect, which has far clearer parameters, has been detached from the TJR aspect, which has yet to be clarified. How will the to-be-developed police force relate to the TJR judicial processes or institutions that deal with petty criminals? And more so, where is the discussion about the notoriously corrupt, underfunded and overburdened jails and prisons of the Bangsamoro? These all call for deeper rethinking of policing and penology in terms of harmonizing human relations in conflicted communities rather than simple “law enforcement” and “crime control.” These themes will be explored in the third installment of this series. (MindaViews is the opinion section of MindaNews. Jeremy Simons is a peace worker living in Davao City and can be reached at [email protected])

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