Customary law in forest protection of the kho mu in co cuom village

ACKNOWLEDGEMENTS I would like to express my sincere thanks to my advisor Dr Do Anh Tuan for the continuous support of my thesis, for his patience, motivation, and immense knowledge His guidance helped me in all the time of research and writing of this thesis I would like to extend my thanks to Mr Nguyen Viet Cuong, the Director of Muong Phang Forest Management Board and Mr Lo Van Nga, the Vice Chairman of Pa Khoang Commune Peple‘s Committee for his useful and constructive recommendations on this project I am also grateful to the stuffs of forest rangers, Muong Phang Forest Management Board and Pa Khoang villagers for providing helpful data and taking good care of me when I stayed in the commune Last but not the least, I would like to thank my family: my parents and to younger brother for supporting me spiritually throughout writing this thesis and my life in general ABSTRACT This study contributed findings of the Kho mu customary law included their core belief, the traditional ritual and traditional institution in protecting forests in the context of recognizing the role of ethnic minority group customary law oriented sustainability from different point of views Also, obstacles to limit the promotion of customary law were mentioned Based on the research objectives, a study decision used PRA as a tool of gathering data as well as field observation to understand clearly current situation during the time from July to September, 2015 TABLE OF CONTENT ACKNOWLEDGEMENTS ABSTRACT TABLE OF CONTENT LIST OF TABLE LIST OF FIGURE I INTRODUCTION II GOAL AND OBJECTIVES III METHODOLOGIES 3.1 Study site 3.2 Methods IV LITERATURAL REVIEW 11 4.1 Concepts 11 4.2 Customary law and State law 11 4.3 The importance of customary law in rural development 12 V RESULTS 14 5.1 Description of Kho mu community 14 5.2 Customary law in forest protection of the Kho mu 14 5.3 Kho mu customary law applying in local situation 18 VI CONCLUSION AND RECOMMENDATION 28 VII REFERENCE 32 VIII ANNEX 37 LIST OF TABLE Table 1: Definitions of Customary Law, State Law, Culture and Habits 37 Table 2: History of Pa Khoang commune managing 38 Table 3: Question for how customary is applied in current situation 39 LIST OF FIGURE Figure 3.1 Pá Khoang commune location Figure 5.1 Forest for the community 15 Figure 5.2 Basket for the ritual 16 I INTRODUCTION Communities effectively manage natural resources by utilizing customary law has been aware through Law on Forest Protection and Development by National Assembly of Socialist Republic of Viet Nam with the content ―Village populations communities, giving priority to the assignment of forests associated with the customs and traditions of ethnic minority people‖ (Art 20(2)(a), Decree N° 23/2006) Customary laws exist among the community of ethnic groups who live harmony with forest and associate their long-live to jungles Its important role cannot be denied in regulating social relations Customary laws focus on protecting tradition, costume, festivals, and belief and cultivation activities by a principle system that has accumulated and gain over centuries Indigenous people responsibly and voluntarily follow their customary laws whether state law recognizes those or not The set of compulsory rules are applied to every member in a certain community for what people shall/shall not and which people shall what action Ngo Duc Thinh, a leading research in the folk culture field defined customary laws as a reflection of ―behavioral experiences with society and the natural environment, which are transferred across generation by social and productive practices‖ Vietnam is home for multi-ethnic country consisting of 54 ethnic groups with different in language, life style and religion Depending on geographic features as well as the culture of each ethnic group, they tend to live accordance with their own culture and customary law Since the 1990s, customary law has attracted considerably more attention from the Vietnamese government The reasons for this are related to changes in the economic and social conditions in Vietnam With the Doi Moi policy in place since 1986, Vietnam‗s economy has moved from a centrally planned economy based on the two tiers of the state and co-operative sectors, to a multi-sector economy that includes state-owned enterprises, collective economic sectors, individual economic sectors, private capitalist economic sectors and state capitalist economic sectors The economic reforms have led to social and legal changes There are, for example, a number of civil and commercial relations that now occur for which there is regulation (or legislation or guidelines) in place to regulate them1.This situation is ongoing Due to the changes in economic relations, social relations (such as inheritance, marriage and family, civil transactions and land) have also changed The state law, with its ageing regulations, could not be expected to be able to cover all the new social relations that are occurring To some extent, in social relations where state law does not reach, customary law may dominate2 Customary law, in this special circumstance, became an important source for the regulation of such social relations Customary rules are spontaneously applied in the social fields of Indigenous peoples, such as those involving land and forest management3; ownership rights, property disputes and disputes regarding lost livestock, issues of marriage, inheritance contract and tort Customary law offers not only rules for social relations but also dispute settlement methods that are mutually agreed upon and implemented voluntarily by all members of the See more details in Chapter ‗The Vietnamese Legal System Duy Nghia Pham, 'Confucianism and the Conception of the Law in Vietnam' in John Gillespie and Pip Nicholson (eds), Asian Socialism & Legal Change: The Dynamics of Vietnamese and Chinese Reform (ANU E Press, 2005) 76, 86–8 For example, with two conferences on Customary Law (the Conference on the Relationship between State Law and Customary Law 1997 in Dak Lak Province and the Conference on the Relationship between State Law and Customary Law 1999 in Lao Cai Province), a number of researchers argued that customary law, regardless of its recognition or non-recognition by the state, co-exists with the state law For more details, see So Tu Phap Tinh DakLak, 'Tham Luận Cua So Tu Phap Tinh DakLak' (Paper presented at the Moi Quan He Giua Luat Tuc, Huong Uoc va Phap Luat Hien Hanh, DakLak, 1997) 35 [Trans: Justice Department of DakLak Province, ‗Speech of Justice Department of DakLak Province‗ (Paper presented at the Relationship between Customary Law and State Law, DakLak Province, 1997)]; So Tu Phap Tinh Lam Dong, above n 770, 132–3 Huy Tuan Hoang, 'Decentralization and Local Politics of Forest Management in Vietnam: A Case Study of Cơ Tu Ethnic Community' (2006) 52 Journal of Legal Pluralism 169, 171 Quoc Anh Tran, above n 713, 101–6; Xuan Tien Ha, 'Tap Quan va Thuc Tien Xet Xu Cac Vu An Dan Su cua Toa An Nhan Dan Tinh Lao Cai' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 82–5 [Trans: Xuan Tien Ha, ‗Customs and Practical Adjudication of Civil Cases in the People‗s Court of Lao Cai Province‗ (Paper presented at 'The Relation between State Law and Customary Law, Lao Cai, 1999)]; Ngoc Lan Nong, 'Tap Quan, Luat Tuc Hon Nhan Gia Dinh Mot So Dan Toc It Nguoi O Tinh Lao Cai Va Nhung Van De Dat Ra' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 55–60 [Trans: Nong, Ngoc Lan, Customs and Marriage and Family Customary Law of Ethic Communities in Lao Cai Province and Some Proposals‗ (Paper presented at the Relationship between Customary Law and State Law, Lao Cai, 1999)] community In practical terms, customary law is the first choice for dispute settlements in minority ethnic communities6 However, the relationship of indigenous peoples with forests is very different from the approach to forest management adopted by policies, programs and projects related to forest use and management Government policies and plans aimed at improve living condition of forest dwellers have often been formulated and implemented in a top-down manner, usually failing to address local dynamics and needs and at times even conflicting with local values and customary laws The consequence is that the right of ethnic minorities to self-determination and their cultural rights are undermined, which makes them outsiders of their own development In recent years, customary laws have been studies such as the customary law of the Ede (11 chapters, 236 articles), the Mnong (8 chapter, 215 articles), the Xre (9 chapters, 92 article), the Ma (13 chapters, 68 articles), the Stieng (4 chapters) and the Jrai (15 chapters) Studies of customary law have contributed to the understanding of customary law in term of cultural preservation and the history of ethnic communities to some extent The role of customary law in forest management and conservation in other ethnic groups such as Cống, Cơ Tu, Khơ mú and minor ethnic groups which have small number of population in Vietnam is still lacking of details For more detail study at field level, a case study “Customary law of Kho mu community in forest protection, Co Cuom village, Pa Khoang commune” was conducted Ngoc Trach Nguyen, 'Mot Vai Van De Luat Tuc va Van Dung Luat Tuc Tren Co So Phap Luat Thong Qua Phong Trao Xay Dung Nep Song Van Hoa, Gia Dinh Van Hoa o Mien Nui Tinh Quang Ngai' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 50 [Trans: Ngoc Trach Nguyen, Customary Law and Customary Law Application in Accordance with State Law through the Movement of Building Cultural Lifestyle and Cultural Family in the Highland Areas in Quang Ngai Province‗ ( Paper presented at 'The Relation between State Law and Customary Law, Lao Cai, 1999)] Nha Y, Loc Nguyen and Phi Y, 'Giai Quyet Tranh Chap Dan Su Trong Luat Tuc Ê Đê — M'Nông' (2001) Tap Chi Nghien Cuu Lap Phap 51, 51–8 [Trans: Nha Y, Loc Nguyen and Phi Y, ‗Civil Dispute Settlement in Customary Law of Ê Đê – M‗Nông (2001) Journal of Legal Studies] II GOAL AND OBJECTIVES The goal of this project is get better understanding of the role of customary law in relation to forest protection of an ethnic minority group in Co Cượm village, Pá Khoang commune, Dien Bien province The specific objectives are: To identify customary law in forest protection of Kho mu community To assess current situation of applying of Kho mu customary law in forest protection To give recommendation for enhancing the role of Kho mu customary law III METHODOLOGIES 3.1 Study site Figure 3.1 Pá Khoang commune location Pá Khoang commune is located in the outskirts of Dien Bien district, 40 km away from Dien Bien Phu, the capital of Dien Bien province It is a very mountainous area with Armor Na Swallow in the north, Pu Nhi commune in the south, Armor Muong Phang commune in the east, and Ta Leng and Thanh Minh commune in the west Located at an altitude between 880 and 1635 meters above sea level, Pá Khoang has a tropical monsoon climate with two distinc seasons: the rainy season from April to October and the dry season from November to March of the next year The average annual rainfall varies from 1600 to 2000 mm and average temperature is 21.5 to 22.5˚C With abundant streams and rivulets, Pá Khoang can be classified as a water rich area The biggest water reservoir, Pa Khoang accommodates 40 million m3 and provides water to the 1200 Muong Thanh rice fields that produce for national and international markets Therefore, Pa Khoang and its surrounding forest are of great significance to the district´s economy With the main soil groups being alluvial, black and red soil, Pa Khoang is a suitable area to grow (industrial) crops and short-term plants The area is also suitable for livestock, hence, raising livestock like pigs and buffalo are common In recent years, livestock has been hit by a number of diseases resulting in their decline, especially chickens and ducks The commune includes four ethnic group: Thái, Hmong, Kinh and Kho mu Their cultures are very rich and diverse in language, living areas, and different customs The Kho mu people here have long developed and used irrigation systems like canals, dams to hold water and waterwheels to transfer spring water to higher level fields This enabled them to grow wet rice which is currently the main crop in Pa Khoang, though other crops like maize, bamboo, cassava, soybean and peanuts are grown as well to prevent food shortages Many households also have their own fishpond However, despite the diversity in crops, from the average amount of land area used for agricultural production (0.1 per person), it can be estimated that an average households faces to months of food shortage per year In 2010, Pá Khoang was included in the list of poor communes of the Dien Bien province and a survey in August 2010 identified that 21.1% of the households in the commune are living below the poverty line Pá Khoang has therefore been receiving support from government‘s poverty reduction programs and has seen support from the state in the form of power lines, roads, water supply systems, schools and a health station However, infrastructural development in the commune is still poor Only around 15% of the population have access to electricity and roads in the commune are of low quality and are mostly dirt roads that are difficult to pass or non-usable in the rainy season Water flowing in the streams is polluted and less in quantity, therefore, people dig wells to get water for everyday use The gravity water supply system introduced by the government reaches 36% of the population Tourism is also starting to emerge in Pá Khoang In 1954, this place was the headquarter of the Dien Bien Phu campaign of General Giap and Major General Hoang Van Thai who delivered a successful battle against the French Symbolizing the nation‘s victory over the French, this headquarter has recently been upgraded causing an influx of promote the local culture One of the villages in Pa Khoang for instance was pointed out as a cultural village and was therefore receiving funds to build a cultural house The house was to be built in the form of a traditional Kho mu house taking into account all details and requirements Although the effectiveness of these programs could not be assessed, their existence reveals a positive attitude from government officials But this positive attitude is not yet fully translated into integrating the local customary law in forest use and management in Pa Khoang Here, the customary law was taken into account in village regulations including the local regulation on natural resource management Though to a lesser degree, also in Pa Khoang there was some overlap between customary rules for forest use, like timber collection In terms of awareness and knowledge on laws and policies, the information obtained reveals that people in general, and especially women, are poorly informed about state laws and rules, regulations and institutions responsible for forest protection and management State law remains complex and not easily accessible to people, and the formal administrative systems for forest protection and benefit sharing are not fully understood According to survey data, 30 households of Kho mu in Co Cượm village, generally, Kho mu people have low basic education The number of people who does not go to school occupies 68% The others account for 13% of people who reaches grade (primary school) and 19% of unfinished secondary school However, when being asked how much they know about customary law in forest protection, 76% people confirm the answer wellunderstood Their age lies from 28 to 80 And, all of surveyed households (accounting for 100%) want to preserve and promote their tradition ―There is no water if a tree is cut The forest ghost will be gone forever The rituals must to be continuous‖- said a middle age man– a local inhabitant 26 By interviewing, the given result has shown that not many villagers (over 24 households) know policies and legal documents so well even though the State has legally issued a number of policies and documents related to forest resource protection and management from top to down It is because of the complexity of polices and Kho mu people are not guided in detail how to benefit from forest resource policy and investment policy Moreover, since the State affirms their power to use and manage forest resources, the community no longer assigns to protect that property and they only concern about exploiting this resources to satisfy their purposes In the case Pa Khoang commune, Kho mu community passively listens and follows forest rangers‘ announcement not to illegally cut down trees, practice slash and burn, or let buffaloes and cattle damage headwater forest 27 VI CONCLUSION AND RECOMMENDATION Customary law is a set of rules that governs people‘s interactions and it comes into being through a bottom-up process where customs evolve over time and become the norm within a group These rules are supposed to help a community to maintain social order, to create collective benefits and to survive Therefore, the set of rules in customary law is flexible and adapted over time according to contextual changes The core of customary law lays a value and belief system that acts as a strong enforcing mechanism for people to recognize and to voluntarily follows the expected norms and behaviors In Pa Khoang, the belief is manifested through the worshipping of many kinds of ghost including forest ghost People perceive the punishments that stem from these powers and customary law as more severe than those based on state law like imprisonment or monetary fines Based on this study it can be said with confidence that the Kho mu in the areas studied still keep their beliefs, values and norms alive In particular with respect to natural resources my findings reveal that customary law in Co Cuom village entails guidelines for people to interact with nature in a harmonious way There is no doubt that the beliefs underlying customary law are still strong among the Kho mu people and customary rules and practices are to a certain extent still recognized Accordingly, there is a clear link between people‘s belief and the way they protect forests Traditionally, customary law exists by memory and is in most cases orally passed on to younger generations by key actors like village elders, clan heads and priests Yet in the past few decades, the social role of these traditional institutions has been under pressure from the formal structures and institutions set up by the government Due to major changes in the forest land management and administration system since 1960, the roles of district authorities, FMBs and formally appointed village leaders have become stronger than traditional institutions Also socio-economic changes and the technological 28 development in general have affected (and is still affecting) the commune and existing cultural values Therefore, although my findings show the existence of attitudes and behaviors towards a balanced relation with nature, customary law is seriously threatened as the social and technological progress is unfolding A main issue of concern is that, till date, state laws and programs have failed to take customary law and indigenous knowledge into account and not recognize their positive functions for nature and society State initiated programs after 1960 handed ownership and control over forests to cooperatives or state organizations without taking the existing local rules, boundaries and structures in Pa Khoang commune into consideration However, even in the most recent policies and programs, the government has still failed to take into account customary law, like, for instance, the creation of conditions that will allow for community ownership of forests On the other hand, there has been a low awareness on state laws and policies among the communities because they had hardly any access to the respective information Consequently, the Kho mu people are excluded from their own development process and face obstacles in technically managing state initiated plans Another issue of concern is that at the time of research, local authorities had still not carried out a land reallocation program effectively and thus people had very limited rights to access and to use land and forest resources In addition, there exists much confusion and conflicts over boundaries which are leading to ineffective use, protection and development of the forests A major conclusion in this study therefore is that customary law is getting lost while state policies and programs are not optimally functioning This is a highly unviable situation for people and nature in Co Cuom village and therefore it will be come up with the following recommendations: 29 There is a pressing need for policy makers and legislators to study and understand customary law, its spiritual values and positive functions for social development and environmental conservation It is highly recommended to take action to adjust current laws on land and forests to close the gap between customary law and state law, for instance, through allowing community ownership of forests or taking into account people‘s own classification of forests and boundaries There should be more formal recognition of functions of forests other than economic Especially the spiritual importance of forests must gain formal recognition by authorities and should be taken into account in local natural resources management and conservation planning Integrating the two law systems will increase people‘s awareness and acceptance of formal state rules and make state interventions more responsive to the real needs and aspirations of local people Moreover customary law can provide lessons for state low to have a more ‗behavioral‘ approach and behavior change, which can increase state law‘s effectiveness In the processes of national and local planning, space should be created for communities to formulate, to regularly revise and to practice their own rules on natural resource management use and protection, based on their cultural values and customary law Authorities at different levels should try to understand the indigenous knowledge that is intimately built into customary law This is also important to prevent the loss of indigenous knowledge and valuable mechanisms to maintain social order On the other hand, it will encourage people to control and protect their resources effectively and in cooperation with state institutions In addition when state programs are implemented at local level, the contradicting effects of different state programs should be first assessed thoroughly and addressed through meaningful participation by local people Local authorities should recognize and utilize the role of traditional institutions like village elders and priests in natural resources management, use and protection but also 30 in education and conflict resolution Therefore it is recommended that innovative tools and mechanisms are created that facilitate a closer cooperation between formal and local institutions for forest protection It is recommended that local governments set up clear and consistent information management systems to monitor and analyse indicators related to the forest and set up a systematic mechanisms (that includes traditional institutions) to share the information with local people I would like to emphasize that no matter how the social and economic conditions are among ethnic minority groups, there is the need to conduct research for a thorough understanding of customary law and indigenous knowledge among different ethnic minorities and how it could strengthen state laws and policies towards sustainable natural resources use and management This study has merely been an initial step to understand customary law and its link to sustainable natural resource management in a small area and I hope to continue my efforts to get a deeper understanding of customary law 31 VII REFERENCE Apthorpe, R.J 1986 Exchanging culture for politics: stratagems of recourse to tribe and tradition in development discourse Harare: University of Zimbabwe, Dept of Rural and Urban Planning Barbara, Oomen 2000 Tradition on the move: chiefs, democracy and change in rural South Africa Amsterdam: Netherlands Institute for Southern Africa (NIZA) Baulch, Bob, Chuyen Truong Thi Kim Chuyen, Haughton Dominique, HaughtonJonathan (2002), Ethnic Minority Development in Vietnam: A Socioeconomic Perspective, Policy Research Working Paper No.2836 Development Research Group Macro Economics and Growth, The World Bank, Washington DC, USA Benson, Bruce L (1990), The Enterprise of Law: Justice without the State, pages 1215 Independent Publisher, ISBN-13: 978-1598130447 Chopra, Kanchan, Gopal K Kadekodi, M.N 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What is its legitimacy? What power does it exercise? Rights Who define the right? Who enjoy the right? Who benefit from this right? Participation and decision making Who can participate and at what level? Who makes decision for whom? Law and Policies What types of policies and laws are applied from the past until now? How many villagers they follow the law? How villagers react to these laws and policies? How many area of forest are protected with the policies and laws? Customary law How local authorities integrate or combine CL and SL? How much local authorities understand about customary law? What are the limitations of integrating CL? Are CL enforable when applying? What are local authorities‘ perspectives and attitudes? Table 4: Questionnaires SURVEY FORM (Kho Mu household and Kho mu villagers) Location:…………………………… Date:………………………… I- Basic information 1- Your age: 2- Your ethnicity: 3- Education level □Primary school □ Secondary school □ High school 4- Your job/occupation? II- Please give detail for below information 5- Do you know customary of Khơ mú people in Co Cượm village? □ Know clearly □ Know a little □ Do not know 6- Do you understand Khơ mú customary law in forest protection? Understand well Understand a little (Reasons) Do not (Reasons) 6- Does everyone follow Khơ mú customary law in Co Cượm village? □ Everyone follows □ Many people follow (How many?) □ Few people follow (How many?) No one 7- Do you often educate your children to protect the forest by customary law? □ Yes □ A little □ No 8- Are customary laws in forest protection maintain until now? □ Yes □ No understand