Point 9 b (ii) of the Sixteen Point Agreement is the basis for establishing a Naga Tribunal. This can define and determine the nature and scope of customary law in accordance with the present day need to embrace gender equality and uphold international human rights standards
During the last few months the phrase “customary law” has been used much more frequently. The perception that reserving places for women in urban local bodies contravenes customary law, and therefore, infringes upon the special provisions of “Naga customary law and procedure” in Article 371 A has sparked a chain of events. While the crisis has gone beyond the ambit of women’s reservation, it has raised critical questions around the state of political affairs, leadership and power, and the parochial modern culture itself.
Now it is more imperative than ever to examine the question of what constitutes customary law.
Political and legal thinkers point out that “customary law” concerns the laws, locally recognized principles, specific norms and rules of conduct, patterns of practices, beliefs and customs established over time which are applied by community institutions to internally guide and govern an indigenous political community.
“Customary law” has been projected to encompass principles of equity, shared responsibilities, and collective interdependence. It is holistic and focuses on bringing balance and harmony to all aspects of community life, values of equilibrium, respect and restorative justice while addressing conflicts, and is also the basis for negotiation.
Therefore, since customary law is intrinsic to the life and customs of an indigenous community, the question of “custom” and what aspects amount to “customary law” will depend on the community as a whole. And even though most indigenous communities are patriarchal in structure, the dynamic and evolving nature of “customary law” was meant to ensure that laws would develop to meet the changing times.
However, for most indigenous peoples, the colonial project misappropriated “customary law” and effectively broke up community cohesion through negating indigenous ways of life, worldviews and their intellectual and moral framework. Subsequently, the colonial construct of “customary law” became more narrowly defined and lost its flexibility under the State system in the post-colonial era and this reinforced the hierarchical and patriarchal systems.
The colonial “customary law” came to represent an outdated rigid parochial view of reality manipulated by people in power to support their own interests. More importantly it stopped facilitating restorative justice approaches which marginalized women, younger people and people of ‘lesser privilege’ and this did not address the issues of equity.
Today’s form of “customary law” has ceased to reflect the indigenous community’s ethical foundation and values. “Customary law” has become frozen in time through the rigid formal nature of institutionalizing and legalizing, rather than reflecting the contextual relevance and flexibility of its application and role in the social discourse.
These reasons encapsulate why present day Nagas are responsible for ensuring that its meaning is not entrapped in the colonial construct of “customary law” and gender equity is fully incorporated.
Since Article 371 A is at the center of the present discourse, perhaps the process of seeking a way forward can be found within its broader domain. Article 371 A is the result of the 1960 Sixteen Point Agreement between the Naga People’s Convention and the Government of India through its Foreign Secretary. This requires that the Article be read and applied in conjunction with the Agreement. On the administration of justice, Point 9 b (ii) of the Agreement implies that the Naga Tribunal (representing all of Nagaland) would be responsible for cases decided according to Customary Law.
However, neither the provisions of Article 371 A, nor the Sixteen Point Agreement define what constitutes the nature and scope of “Customary Law.” And, with most Naga villages having their own “customary law” the administration of justice is even more complicated and complex with competing systems.
Consequently, the recent crisis further emphasizes the urgent need to locate “customary law” in the contemporary context. Establishing a Naga Tribunal is one way forward in this process. While this may partially fulfill the Sixteen Point Agreement, its primary task will be to help today’s Nagas to agree on an acceptable working definition of “customary law.”
The Naga Tribunal needs to be an independent body comprised of respected and capable women and men from diverse backgrounds and experiences who have demonstrated their commitment to work for equality, justice and the common good.
The task of the Naga Tribunal needs to focus on liberating the colonial “customary law.” It also needs to recover the relevant traditional values which can be woven into a present day acceptable working definition of “customary law,” and its scope consistent with the peoples’ needs and aspirations. Furthermore, a viable structure will need to be designed and established through which the tenets of “customary law” are upheld.
In other words, since most villages have their own “customary law,” the working definition can formulate a preamble based on shared principles taken from the existing diverse spectrum of “customary law” which can be applied contextually within each community. This could create a Naga “customary law” that is relevant and responsive to present day affirmative need to embrace gender equality, uphold international human rights standards and exercise principles of justice for all within an inclusive ethical framework.