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| Mind the justice gap: ensuring inclusive legal and judicial reforms | Mind the justice gap: ensuring inclusive legal and judicial reforms |
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| The phrase 'justice for all' is one of those terms regularly used by the development community, but not one we often stop to consider what it actually means and what achieving it would entail. Demanding change – from granting minorities the same right as majorities, to creating sensitive and compassionate court environments for victims and preventing the stigmatisation of the sick or disabled – justice for all is always easier said than done. | The phrase 'justice for all' is one of those terms regularly used by the development community, but not one we often stop to consider what it actually means and what achieving it would entail. Demanding change – from granting minorities the same right as majorities, to creating sensitive and compassionate court environments for victims and preventing the stigmatisation of the sick or disabled – justice for all is always easier said than done. |
| The reality is that both access to and quality of justice are major rule of law challenges. Over the past five years (2008-12), almost all the member states of the UN have taken part in the review of their human rights record at the United Nations human rights council in Geneva. This universal periodic review reveals that there are three important issues that hold back advances in the rule of law and justice: | The reality is that both access to and quality of justice are major rule of law challenges. Over the past five years (2008-12), almost all the member states of the UN have taken part in the review of their human rights record at the United Nations human rights council in Geneva. This universal periodic review reveals that there are three important issues that hold back advances in the rule of law and justice: |
| Inconsistency between the law and what happens in real life: Lack of trust and confidence in the formal legal system is a pervasive issue for people in marginalised or disadvantaged groups. They often have grievances (such as systematic economic deprivation, forced eviction, rape, torture) that they do not feel empowered to address through the legal system, particularly where laws do not provide specific protection. | Inconsistency between the law and what happens in real life: Lack of trust and confidence in the formal legal system is a pervasive issue for people in marginalised or disadvantaged groups. They often have grievances (such as systematic economic deprivation, forced eviction, rape, torture) that they do not feel empowered to address through the legal system, particularly where laws do not provide specific protection. |
| Formal justice systems have not reached out to the most disadvantaged people: They are largely not unable to access those systems. Where legal ways to access justice do exist, they are usually not used by disadvantaged groups due to distrust, alienation and lack of knowledge. | Formal justice systems have not reached out to the most disadvantaged people: They are largely not unable to access those systems. Where legal ways to access justice do exist, they are usually not used by disadvantaged groups due to distrust, alienation and lack of knowledge. |
| The slow pace of traditional reform is inadequate: Despite the modernisation of public institutions and the establishment of market economies, two formidable governance and rule of law challenges remain across many parts of the world. Weak political interest in further reform, which is a reflection of inadequate efforts to promote inclusive citizenship, afford protection to refugees and asylum seekers, and empower the excluded; and inadequate state capacity to implement reforms, deliver public services and ensure that powerful elites and duty bearers are accountable to taxpayers and constituencies. | The slow pace of traditional reform is inadequate: Despite the modernisation of public institutions and the establishment of market economies, two formidable governance and rule of law challenges remain across many parts of the world. Weak political interest in further reform, which is a reflection of inadequate efforts to promote inclusive citizenship, afford protection to refugees and asylum seekers, and empower the excluded; and inadequate state capacity to implement reforms, deliver public services and ensure that powerful elites and duty bearers are accountable to taxpayers and constituencies. |
| Beyond governance flaws, the ability of a state to respect the rights of its citizens is reflected by the cultures and norms of that society. For example, gender-based discrimination is embedded in the laws of many countries. A World Bank-sponsored review of laws in Nepal identified 54 laws that discriminate against women. These include laws that prohibit transfer of the mother's citizenship to children (making married daughters ineligible to inherit property) and requiring a husband's consent for women's admission to certain educational institutions. And this is not unique to Nepal. | Beyond governance flaws, the ability of a state to respect the rights of its citizens is reflected by the cultures and norms of that society. For example, gender-based discrimination is embedded in the laws of many countries. A World Bank-sponsored review of laws in Nepal identified 54 laws that discriminate against women. These include laws that prohibit transfer of the mother's citizenship to children (making married daughters ineligible to inherit property) and requiring a husband's consent for women's admission to certain educational institutions. And this is not unique to Nepal. |
| According to a UNDP survey, Access to justice in Europe and commonwealth of independent states, 64.3% of women and children are marginalised – the highest percentage among vulnerable and marginalised groups in the region. The regional human development report – Beyond Transition: Towards Inclusive Societies confirms this trend, showing that an estimated 35% of people in the region are excluded from society, ranging from 12% in the FYR Macedonia to 72% in Tajikistan. The severity of exclusion for vulnerable groups, such as Roma and internally displaced people (IDPs), increases when they face additional risks, such as disability. | According to a UNDP survey, Access to justice in Europe and commonwealth of independent states, 64.3% of women and children are marginalised – the highest percentage among vulnerable and marginalised groups in the region. The regional human development report – Beyond Transition: Towards Inclusive Societies confirms this trend, showing that an estimated 35% of people in the region are excluded from society, ranging from 12% in the FYR Macedonia to 72% in Tajikistan. The severity of exclusion for vulnerable groups, such as Roma and internally displaced people (IDPs), increases when they face additional risks, such as disability. |
| The challenge for justice systems at the national level is therefore, to address legitimate grievances of people who need legal protection the most. A more recent UNDP study – Strengthening judicial integrity through enhanced access to justice – (unpublished) shows that the main barriers for enhanced access to justice for women, persons with disabilities, and minorities are widespread poverty and public prejudice, low education of the target groups and lack of legal literacy. However, the most significant obstacles in accessing the courts are costs and duration of proceedings. Additionally, judges, lawyers and court staff lack sufficient awareness and knowledge about the specific needs of these groups and communities. They need more training and awareness to serve the actual needs. We are yet to harness the full potentials of innovative technologies and social media in the justice and governance systems. | The challenge for justice systems at the national level is therefore, to address legitimate grievances of people who need legal protection the most. A more recent UNDP study – Strengthening judicial integrity through enhanced access to justice – (unpublished) shows that the main barriers for enhanced access to justice for women, persons with disabilities, and minorities are widespread poverty and public prejudice, low education of the target groups and lack of legal literacy. However, the most significant obstacles in accessing the courts are costs and duration of proceedings. Additionally, judges, lawyers and court staff lack sufficient awareness and knowledge about the specific needs of these groups and communities. They need more training and awareness to serve the actual needs. We are yet to harness the full potentials of innovative technologies and social media in the justice and governance systems. |
| Of course, the goal of legal and judicial reform is to build legal systems based on the rule of law, particularly, with laws that are pro-people, publicly known and are enforced in a predictable way and through transparent mechanisms. For example, the 'transition momentum' that inspired an unprecedented wave of democratic reforms in eastern Europe in the 1990s has largely stalled, has not benefited many vulnerable communities. This has prompted the need for much closer attention to details of policy measures, innovative advocacy strategy, and to the wiser choice of implementation modalities, and for nurturing the internal factors of rule of law and justice. They experience different legal problems from the general population. | Of course, the goal of legal and judicial reform is to build legal systems based on the rule of law, particularly, with laws that are pro-people, publicly known and are enforced in a predictable way and through transparent mechanisms. For example, the 'transition momentum' that inspired an unprecedented wave of democratic reforms in eastern Europe in the 1990s has largely stalled, has not benefited many vulnerable communities. This has prompted the need for much closer attention to details of policy measures, innovative advocacy strategy, and to the wiser choice of implementation modalities, and for nurturing the internal factors of rule of law and justice. They experience different legal problems from the general population. |
| Therefore, policymakers need to be mindful of all different situations. For instance, people living in remote and rural areas might need radically different types of interventions to experience improvement in terms of access to justice than urban poor. There is a clear distinction between the various 'groups and communities' although there will be many overlaps. In order to design effective interventions and instil bottom-up rule of law reforms, these actual but varied needs have to be carefully studied, analysed, and factored into development cooperation. | Therefore, policymakers need to be mindful of all different situations. For instance, people living in remote and rural areas might need radically different types of interventions to experience improvement in terms of access to justice than urban poor. There is a clear distinction between the various 'groups and communities' although there will be many overlaps. In order to design effective interventions and instil bottom-up rule of law reforms, these actual but varied needs have to be carefully studied, analysed, and factored into development cooperation. |
| This is becoming critical as the international community is pushing governance agenda in post-2015 framework. The traditional development interventions focusing heavily on developing state capacities are inadequate, to say the least. Rule of law institutions and services will have to be more inclusive, innovative and accessible. Will this find stronger resonance in post-2015 development agenda? | This is becoming critical as the international community is pushing governance agenda in post-2015 framework. The traditional development interventions focusing heavily on developing state capacities are inadequate, to say the least. Rule of law institutions and services will have to be more inclusive, innovative and accessible. Will this find stronger resonance in post-2015 development agenda? |
| AH Monjurul Kabir is a lawyer and governance adviser, specialising in rule of law, justice and human rights. He writes here in his personal capacity and tweets as @mkabir2011 | AH Monjurul Kabir is a lawyer and governance adviser, specialising in rule of law, justice and human rights. He writes here in his personal capacity and tweets as @mkabir2011 |
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