Marginalized Communities and Access to Justice

Yash Ghai CBE,Jill Cottrell

• Publisher: Routledge-Cavendish
• Year: 2009
• ISBN:
  9781135236120
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Marginalized Communities and Access to Justice is a comparative study, by leading researchers in the field of law and justice, of the imperatives and constraints of access to justice among a number of marginalized communities. A central feature of the rule of law is the equality of all before the law. As part of this equality, all persons have the right to the protection of their rights by the state, particularly the judiciary. Therefore equal access to the courts and other organs of the state concerned with the enforcement of the law is central. These studies– undertaken by internationally renowned scholars and practitioners – examine the role of courts and similar bodies in administering the laws that pertain to the entitlements of marginalized communities, and address individuals' and organisations' access to institutions of justice: primarily, but not exclusively, courts. They raise broad questions about the commitment of the state to law and human rights as the principal framework for policy and executive authority, as well as the impetus to law reform through litigation. Offering insights into the difficulties of enforcing, and indeed of the will to enforce, the law, this book thus engages fundamental questions about value of engagement with the formal legal system for marginalized communities.

Chapter 1
The rule of law and access to justice

Yash Ghai and Jill Cottrell

Introduction

For the Vienna World Justice Forum and its future work, the American Bar Association (ABA) developed a tentative definition of the rule of law (ROL) and elaborated criteria to determine the extent of its observance in a state. In its view, the ROL comprises four universal principles: (a) a system of self-government in which all persons, including the government, are accountable under the law; (b) a system based on fair, publicized, broadly understood and stable laws; (c) a robust and accessible process in which rights and responsibilities based in law are enforced impartially; and (d) diverse, competent, independent and ethical lawyers and judges (ABA 2008). These principles give the impression of a procedure-based ROL, but it is clear from their elaboration that the ABA’s conception of the ROL includes important values. Among the values are the limitation of the powers of the state by a fundamental law, a democratic, participatory and transparent law-making process, clear and accessible laws and their faithful and fair administration, equal access to justice for all, and justice itself understood as including the protection of political, civil, economic, social and cultural rights.

In the ABA concept, the ROL is an unqualified good. Many others have expressed strong criticism of it. Its critics trace its origin in the development of the modern nation-state and the market economy; a system and supremacy of law is considered critical to both. Others see the ROL as the ideology and mechanism of class domination. The ROL is seen as technology for bureaucratic rule, promising much to the ordinary citizen but delivering little.

Many critics of the liberal state associate the ROL with it. Bhikhu Parekh, for example, describes various institutional and structural features of the modern state which in his view impose uniformity and ignore diversity. The organizing principle is state sovereignty, which justifies the centralization of power and displaces local and group sites of power. This sovereignty operates on a territorial basis, with hard boundaries. Rules for the exercise of this sovereignty are biased towards majoritarianism, stifling the voices of minorities. People relate to the state through the concept of citizenship, based rigidly on equal rights and obligations of all persons, premised on loyalty to the state, and acknowledging no distinctions of culture or tradition. Citizens have rights but these are rights of individuals, based on an abstract and uniform view of the human person, without recognition of the difference made by gender, ethnicity, age, etc. The state operates through the medium of the law, but it is the law created by the state, rather than pre-existing bodies of customs or local law. The state favors the uniformity of structures and seeks to achieve the homogenization of culture and ideology, propagating them as universal values. The domain of the state is the public space, with an ever-shrinking area of private space, which alone allows some expression of cultural diversity (Bhikhu Parekh, 1997).¹

Frequently commentators have seen a contradiction between the ROL and democracy (for recent perspectives, see José María Maravall and Adam Przeworski (eds) 2003). Democracy as the will of the people and their rulers, tended towards the expansion of state power, and was seen to threaten the rule of law. The notion of people’s power implied restrictions on the jurisdiction of judges, so as not to subvert its sovereignty. The ROL began to be seen as a conservative ideology, blocking social and economic reform.

Various attempts have been made to bridge the gap between democracy and the ROL, particularly by the common acceptance of the centrality of human rights over the last several decades. The concept of the ROL has been broadened, from absolute fidelity to any law, to the notion of just law made through the democratic process. The ROL now also focuses on institutional arrangements of the state, including the separation of powers, and the franchise. The notion of democracy has itself become more substantive than procedural, emphasizing the rights of citizens and the protection of minorities. Some have incorporated notions of substantive justice in the ROL, invoking social, economic and cultural rights as an essential component. This broader concern first appeared in the Delhi Declaration on the Rule of Law in the 1950s (and is now extensively elaborated in the American Bar Association Index on the Rule of Law).

It was not the immediate concern of the project on access to justice (A2J) to engage directly with these controversies. Most contributors were aware of how the ROL can be used to establish class dominance and how its connections with the ideology of the nation state can marginalize particular sections of citizens. But they were also alert to the contradictions in the concept of the ROL that could be turned to the benefit of the marginalized. And those who have experienced or observed the terrible atrocities inflicted on innocent people can argue that the breakdown in the ROL facilitated the atrocities. The objective of the project was to look at an aspect of the ROL in detail, in order not only to understand its role and potential to bring about greater justice, but also to gain insights into the broader dimensions of the ROL.

Access to justice

For this purpose, the focus on access to justice was selected. Access to justice is central to the ROL. A critical and attractive feature of the ROL is the equality of all before the law. As part of this equality, all persons are entitled to the protection of their rights by state organs, particularly the judiciary, concerned with the enforcement of the law. As with the concept of the ROL, there is a narrow and a broad meaning of A2J. The narrow concept focuses on the courts and other institutions of administering justice, and with the process whereby a person presents her case for adjudication. The broader concept addresses, additionally, the process of law making, the contents of the law, the legitimacy of the courts, alternative modes of legal representation and dispute settlement. An intermediate concept would focus on dispute resolution, whether by official or unofficial mechanisms, but not include law making or content of the law (although adjudication often involves interpretation, and thus the broadening or narrowing of the law).

Access means approach, entry into; accessible includes the idea of being able to influence. So access to justice means more than being able to raise one’s case in a court or other relevant institution of justice. Justice is defined as fairness; in the legal and political sphere; it usually means “exercise of authority in maintenance of rights”. Fairness covers both the procedures of access and the substantive rules that determine the exercise of authority. Access to justice therefore means the ability to approach and influence decisions of those organs which exercise the authority of the state to make laws and to adjudicate on rights and obligations.

Defined in this way, A2J can be a very broad concept, covering the conduct of most organs of state and the processes of getting to the courts. Many current projects on the A2J define the concept to include the entire machinery of law making, law interpretation and application, and law enforcement. Thus it also covers the ways in which the law and its machinery are mobilized, and by whom or on whose behalf. Since justice is value laden, these projects focus on the content of the law and the ways in which it can be reformed to reflect the concerns of the groups in whose name the projects are undertaken – the poor, the disadvantaged and the marginalized. UNDP, a key international player in this field, states, “Access to justice entails much more than improving an individual’s access to courts or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable” (UNDP 2004: 6). The World Bank, adopting a broad view of A2J, says that “Justice institutions play a key role in the distribution of power and rights. They also underpin the forms and functions of other institutions that deliver public services and regulate access to resources. Clear, equitable rules and processes can facilitate effective and peaceful transitional change, and can create the enabling conditions for a functioning social and economic net by challenging inequitable practices” (2008: 1). The Asian Development Bank also uses a similarly broad view.

Another reason for the focus on A2J is that a great deal of reform activity sponsored by international and bilateral agencies, under the rubric of the ROL, has focused on it. Many financial and human resources have been expended, in an area which has become increasingly controversial (Carothers 2006 a and b, and other contributors to Carothers (ed.) 2006; and Rajagopal 2007). Some have said that despite the broad definition of law and justice, the focus of this internationally supported effort has been to create the conditions for the integration of the economies of developing countries into the international capitalist system through the market, to the great disadvantage of the people of these countries. They argue that another, related, concern is to increase the capacity of the state to maintain law and order, and to reduce challenges to it from groups and communities disaffected by international economic and political developments. The emphasis in these projects is therefore essentially technocratic.² Little has been done to ensure that the programs are “well designed, consistent and coherent” (Carothers 2006a: 10). He says that aid agencies prescribe rule-of-law programs to cure “a remarkably wide array of ailments in developing and post-communist countries, from corruption and surging crime to lagging foreign investment and growth” (Carothers 2006b: 17). He questions the connections between the ROL and democracy and economic development (18). Others say that all these efforts have failed; for example, McInerney points out in summarizing the state of the field, “Recent scholarship seems united in the belief that the promotion of the rule of law and good governance have, until now, failed to deliver either improved rule of law or improved governance” (McInerney 2005: 110). It is based on a misreading of the trajectory of economic and political development in the West (Carothers 2006b: 19), and the unwillingness to try to understand local laws, traditions, customary laws, etc. The problem is that most of the compliance with the law does not come from strengthening the judiciary or court systems. A focus on a specific aspect of these efforts, we considered, would help to provide some basis for evaluating this debate.

The scope of activities under the A2J projects

Two approaches can be detected in A2J projects (Golub a and b 2006). The first is what may be called the ‘supply side’, that is, the reform and strengthening of the machinery for the administration of justice and procedures for bringing disputes to courts. Typical activities are upgrading the skills of judges, improving their working conditions including remuneration, providing them with technology that can speed their work, building more and better court houses, digitalizing legislation and law reports, assistance to bar associations for better and continuing training of their members, assistance to law schools to improve standards of legal education and grants for research and publications, and funds and technical assistance for law reform (often through law reform institutions), codification of law and better drafting. These measures enhance the capacity of the legal and judicial systems to cope with the demands that people make on them. To some extent this approach reflects, and seeks to respond to, the wide perception of ‘mess’ in legal systems – backlogs, corruption, expense, alienating and obfuscating procedures, physical inaccessibility.

The other approach, the ‘demand’ side, is the facilitation of the use of the courts, ombudspersons and other complaints mechanisms by the people. Typical activities are the use of local languages in courts, rules of procedure, including the standing to start legal proceedings, special rules for public interest litigation, waiving costs for arguable public interest and human rights issues, various forms of legal advice and representation (citizens advisory centres, legal aid administered by the state or the legal profession, pro bono services by the legal profession, state financed or managed public defender or public solicitors’ offices), the role of paralegals, provision of popular legal information, human rights education, establishment of community or nongovernmental organizations (NGOs) to raise public awareness of their rights and assist the people, particularly the poor and the disadvantaged, to get access to the courts and other complaints mechanisms. The more radical and political aspects of promoting ‘demand’ is said to involve the ‘empowerment of the poor and the marginalized’, so that they can overcome the sense of their own inferiority and the fear of the law and officials. Litigation is used in creative ways, not only to settle a particular dispute, but to promote a right or entitlement more generally, and even to instigate the process of law amendment or reform. The aim here is to overcome the obstacles to access posed by poverty, ignorance and fear. However sometimes the distinction between supply and demand may not be very clear. The supply may not be the real response to a problem but one conjured from western experience; equally ‘supply’ may take the form of repression, by restrictive jurisdiction of courts or the ignoring of indigenous laws (as in Cambodia).

Somewhere between the two approaches is the role of ‘community justice’ as opposed to justice provided through the state system. In Africa this takes the form of customary law and tribunals, in India people’s courts like Lok Adalat, and in Latin America various associations especially among the indigenous peoples. ‘Community justice’ (a term which can cover quite diverse phenomena, including informal settlements, particularly by community elders, traditional or formal community tribunals, application of customary or religious laws, or even hybrid tribunals, drawing on traditional systems but expressed and modified through state mechanisms) is supported because it is deemed to reflect more closely the cultures and mores of the community concerned; it is informal and non-technical so that the poor and uneducated feel comfortable, is quick and easy to access, and the primary focus is mediation and resolution through forms of restitution. It thus enjoys considerable legitimacy – and takes the load off the official system. Its critics say that these tribunals operate without any clear rules of procedure, local politics permeate them, rules are often discriminatory, especially against women and children, and at least in some communities, punishments can be harsh, even cruel. Little regard is paid to human rig...