Access to justice
The access to justice movement has been part of broader legal reforms in several countries. It aims to breathe life into the principle that all citizens are equal under the law. We can approach this in several ways, practical as well as theoretical. The former is well understood and thoroughly discussed: what can be expected of legal institutions, such as courts, and what answers can they give us? We may call this ‘justice supply’, the overall efficacy of the judicial system in addressing the demands, needs, and problems of our societies.
If we go deeper, however, we are faced with notions of ‘right’ and ‘justice’ under the umbrella of equality. Here our discussion must be broadened further, beyond rules and procedures. We need to look at the society at large, because it plays a role in shaping and pronouncing demands for justice. We may call this category ‘Expectations of Justice’, where the first step in the tale of accessing justice begins with the individual herself and her perception of justice. Through her attitudes, values, and knowledge, accessing justice might be hindered or pursued.
Another reason may relate to a lack of confidence in the legal institutions, which also plays a role. Access to justice might also be influenced by other equally, important groups. Those that are at the very front of the courthouse, the ‘gate-keepers of justice’. Lawyers, judges and those actors that are intended to facilitate and achieve justice on behalf of their citizens. This constitutes the very heart of justice and its real manifestation in society. Through the eyes of legal actors, justice might be given in abundance or it may even be withheld.
Assessing the concept of access to justice should be explored in light of the above categories. It is the aim of this component to open up a discussion where we can look at this movement in light of our societies that is represented by diversity, and issues different from the rest of the world. The social dimension added by access to justice allows for law and justice to be contextualized. It is a practical concept of the law where society and law go hand in hand.
I. Justice Supply (and demand)
The overall efficiency of the judicial system in addressing the demands of its citizens.
A judge cannot ‘deny justice’ and in principle, every citizen has the possibility to go to court with the legitimate expectation of receiving a judgment. Theoretically, this makes the judiciary a more accessible institution than the political branches. However, there are limits to access this and may be imposed to reduce litigation and prevent the system from becoming overloaded. Several ‘barriers’ exist and while the form and goal of these barriers differ they do have an impact on the access to justice.
The first barrier is the economic cost. This is a global issue, where the poverty of many people has little or no access either to information or adequate representation.
a. Should the law be concerned with this social dimension by providing for legal aid and information or should we consider poverty as a ‘misfortune for which the law cannot take any responsibility’?
The second barrier is procedural. There is a gap between traditional standing requirements that allows legal representation only to individuals who can demonstrate a personal and direct interest in a dispute.
b. What are the procedural barriers comparatively speaking? Are they a hindrance or effective in their goal?
The availability of alternative routes to justice and non-judicial forums for dispute resolutions is a different, yet equally important form of justice supply. Traditional avenues of dispute resolution are deeply entrenched in the identity of several communities. It is still practiced and some would claim that it is a better forum for receiving justice than institutionalized, courts. They are often resorted to because they are quick, efficient and affordable. In some instances, they operate in harmony with the state’s legal institutions.
c. Is traditional mediation, such as tribal law and custom better? Should we allow for a greater resort to tribal custom or should we remove it entirely?
II. ‘Expectations of Justice’
The attitudes, shared values and beliefs concerning the relationship between law and citizens. Society’s expectations on what they can get in courts are important. We cannot only consider the rules, forms and procedures aimed to solve the societal need for access. Legal culture is not one, but many, informed by religion, society, history, and politics. These are deeply penetrated in our societies. Culture will frame our understanding of the law and how to access justice.
a. Is there a lack of transparency in legal culture among the population?
b. Is there a general lack of awareness of persons of their right to demand legal aid and redress?
c. The plurality of legal culture will also form expectations. An essential question is, what informs our notion of justice and the access to it? Questions like this matter because they act as pre-conditions, beginning in the mental state and before the act of pursuing it.
d. Do individuals and society as a large view the legal institutions as a good avenue or, is there an expectation that courts will not be able to grant redress?
III. ‘Gate-Keepers of Justice’
The intermediaries between justice and citizens
A different issue but equally important in the access to justice relates to those in control of it, and those that act as mediums between citizens and justice. Lawyers, prosecutors, judges and bailiffs amongst others can regulate and control the access to justice. The attitudes beliefs and values of gate-keepers, their willingness to provide for redress shapes the flow of rendering justice to those in need of it.
Lawyers act as mediums between citizens and courts. Their attitudes and beliefs may shape the flow of claims brought to court and the willingness of lawyers to engage in disputes is important in relation to legal assistance for people lacking resources or are socially disadvantaged. In particular, is legal actors’ willingness to engage in political advocacy.
a. Should lawyers encourage mediation as a first rule?
b. What are the advantages/difficulties in political advocacy and why should it be encouraged/discouraged?
c. Are there any better arenas for collective action than courts?
The legal process and judicial powers of intervention in legal proceedings are important. Access to justice does not stop once entry into court has been granted, rather it continues in the courtroom. The judge may have powers to affect the process and outcome of the case as well as the prosecutor. Litigants themselves may be able to control their own case and thus its final outcome.
d. What actors in addition to judges and prosecutors may have an influence inside the courtroom?
e. Those who can influence justice, are the mechanisms available to them only related to process, or do they possess a psychological dimension?
IV. Due process and Fair trial
The rules surrounding due process cannot be ignored when speaking of access to justice. Access to the law is an absolute condition in achieving a fair trial. Recent definitions of the fair trial are increasingly progressive in the sense that the entire process before the courts seems to be integrated into it. The term of ‘fair trial’ is mentioned in almost all the constitutions and rules of procedure of Arab countries and we find the term occurring frequently. This leaves us in the interrogation of what is the “fair trial” quoted in these texts. Is it merely a presumption of innocence or does it embody other principles?
a. Pre-trial: access to the law and to information. Here we need to assess the kind of role key-people involved in the process play. For instance, what role does the lawyer, court registries, and bailiffs (in their duty to notify) play?
b. During the trial: Here, the rules of procedure, the actors involved in the trial, and their duty and obligation to render a fair trial are important features. Judges and prosecutors have clearly set rules to follow in particular, ethical ones during the trials. For our purposes, what kind of duty and what kinds of ethical rules must judges and prosecutors follow? We must also assess what the rights and obligations are imposed on the parties to the dispute.
c. After the trial: Following European jurisprudence, Hornsby argues that a reasonable period of execution of the court decision is a condition of a fair trial.1 Who if any, are the main players in the post-trial phase? Does the role of justice stop at the decision of the court is there a temporal extension in Arab-speaking countries?
The questions mentioned above will, therefore, be the main object of our debate on this component of the platform.
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Thank you for your comment Daniela. I completely agree with your observations. The equality principle can be found in several types and forms, even without a centralised system. In legal systems where the model is often fragmented into a plurality of courts for example, a decentralised principle of equality is possible and of course, should be necessary for an administration of justice based on equality. You mention something compelling: that the principle of equality in action which I think is worthy of further consideration. I agree that principles entrenched in law and procedure will serve to satisfy the final aim which is for citizens and society, yet I wonder would there be other avenues where this would be ensured?
The Italian system seems to suggest that in fragmented, differentiated, and loosely coupled systems, i.e. systems whose components are not tied up into a rigid pattern of command and control, the regulative function performed by a center is particularly necessary to ensure that the final response provided by the system to the citizens obeys to the fundamental principles that are embedded into its formal rules. It seems that there is a strong case to be made where the equality principle is applied without a regular and accountable mechanism of monitoring and assessing. The solution to the problem enlightened above is not in fact to elude the equality principle. Rather the opposite. It is to see the equality principle in action and ensuring that principles once entrenched and assured by the legal clauses are then transformed and made into functional procedures, practices, and ultimately results for citizens and societies.