We define a path to justice as a commonly applied process that users engage in, in order to cope with a legal problem. A legal problem is broadly defined as any situation in relation to other people that triggers a need for external norms or interventions. A path to justice begins when the user first starts the process and ends with an outcome on the moment of a final decision by a neutral, joint agreement of the parties, or an end to the process because one of the parties quits the process. An outcome of a path to justice may thus, for example, be a decision by a court or an arbitrator in a conflict between employer and employee. It may also be the result of an application for a government decision, such as a birth certificate obtained after an application procedure with a governmental agency. It may also be a solution negotiated between a personal injury victim and the insurance company of the party that caused the injury. Measuring the quality of an outcome means assessing the quality of this situation. The measuring instrument we are developing aims to evaluate access to justice from the perspective of the users. We thus look for criteria that reflect what people hope to find on a path to justice or are likely to be satisfied with, or what leads to other positive consequences for them. This is what social psychologists have called social justice. However, we take a broader perspective and also include other research traditions, such as legal theory, ethics, and fairness research conducted by economists.
Principles of justice can be regarded as the most basic rules that, according to a certain theory of justice, should be operated in order to govern the world justly. These can be perceived as the reasons underlying a certain outcome, reasons that are justified by justice theories. An example of such a principle is the distributive principle of equity from equity theory. Principles often have to be translated into criteria for assessing outcomes. These criteria are the actual standards corresponding to justice principles whereby justice may be measured. For example, a criterion for outcome justice related to the principle of equity is that the distribution reflects the contribution to the issue of both parties. Most of the time, the theoretical literature already gives such criteria. Sometimes, we had to formulate them ourselves.
Effective participation in the legal system through access to courts, tribunals and alternative dispute resolution Equating access to justice with access to legal services ignores the barriers that exist for the individual once they have made contact with a legal service. This can result in a failure to examine and criticise the aspects of the legal system that present barriers to the individual. This approach also involves an assumption that access to justice is ensured when legal assistance being provided to the individual regardless of what follows in the legal process and the many possible forms of injustice that they may face even with legal advice. Certainly, this assumption serves to place emphasis on the role of the legal profession in mediating the otherwise difficult relationship between the individual and the legal system. Court structures and litigation procedures bear directly upon the individual’s ability to resolve their legal problem. The more prominent issues are those of the cost and delay of legal proceedings, and some courts have responded to these issues with the development of case management systems to streamline the legal processes, encourage early resolution of disputes and to impose a timeline for the proceedings. However, there are other fundamental and equally critical issues which reduce access to legal processes. The complexity of the rules of court and court forms produces a significant barrier to litigants, especially those who are unrepresented. The lack of availability of interpreters and the difficulties associated with their use in courts remains a constant challenge for many courts and tribunals. Even the physical environment of courts, which may produce an atmosphere of exclusion, alienation or disempowerment, or may simply lead to problems of audibility, impinges upon the individual’s access to just processes. The emergence and proliferation of tribunals has been in response to many of the main barriers to equity and fairness inherent within the court system such as the complexity, cost and delay of proceedings. Tribunals function as court-substitute forums for administrative review and dispute resolution, and often operate without formal pleadings and without regard to technicalities or legal forms. They commonly dispense with many of the strict rules of evidence—in some cases with oral evidence altogether—and generally do not award costs. In some tribunals, however, the Understanding access to justice and legal needs 11 ‘informality’ is more in theory than in practice, as the tribunal hearing processes appear to replicate the same formalities and protocols which exist in courts. In many tribunals legal representation is either prohibited or discouraged by requiring leave of the tribunal. In these jurisdictions litigants are mostly unrepresented or represented by non-legal advocates. This can serve to equalise a power imbalance between the parties. These procedural differences permit tribunals to act expeditiously and at a much lower cost to litigants and applicants than is the case with courts. At the same time, they raise numerous issues of access to justice peculiar to their jurisdiction. For example, the informal and inquisitorial procedures have an effect on the extent to which a litigant or applicant is able to present their case, call witnesses and introduce evidence, and their right to appeal is generally more restricted. Finally, an increasingly important and expanding area of the legal system is what is known as Alternative Dispute Resolution (ADR). ADR mechanisms have been incorporated within courts and tribunals, in some cases as a statutory requirement and in other cases as an option available to parties by consent. Courts and tribunals generally introduce ADR mechanisms, such as mediation, pre-trial conferences and pre-trial conciliation, at an early stage in the proceedings as a way of preventing the disputes or matters from going to hearing. In some jurisdictions, particularly those of certain tribunals, the majority of matters are dealt with and finalised through ADR, hence the significance of ADR processes for dealing with the legal problems of economically disadvantaged persons. ADR processes themselves have raised other issues of access to justice. For example, there are issues as to whether the use of ADR processes in family law proceedings in situations where there has been a history of violence serves to obstruct access for the victim of such violence. In other situations and jurisdictions where there is a distinct power imbalance between the parties involved in the ADR process, there are similar questions of appropriateness, and whether in the pursuit of a timely and less costly result, the relative fairness of the process has been compromised.
Accessible, effective, and fair systems of civil, family, and administrative justice are fundamental and far-reaching components of democratic societies. They provide structured processes crucial to the maintenance of citizens’ rights and the peaceful resolution of private disputes. In Canada, civil justice systems have developed independently in each province and territory as well as federally. Each system tends to operate as if the matters of law with which it deals are discrete and contained. International research has increased recognition that our justice systems must be more responsive to the interrelated way that legal problems actually occur in people’s lives. “Justice for Nunavummiut: Partnerships for Solutions”, a report drawn from the Civil Justice System and the Public research, provides a compelling illustration of this point (available at http://cfcj-fcjc.org/publications/cjsp-en.php#20). In April 2009, as a co-author of this report, I was invited to take part in a Nunavut Branch Canadian Bar Association Learning Event in Iqaluit. Here I touch briefly on a few of the many key issues underlined by our research and by participants at this recent event.
Mediation and Other Less Formal Means of Dispute Resolution A fourth approach to promoting access to justice is the development of institutions for the resolution of disputes outside of courts and formal legal process. This category overlaps with those of court reforms and legal services; mobile courts in the Philippines, justices of the peace in Guatemala, and paralegals in Indonesia and Sierra Leone all engage in mediation of some kind. The Ecuador Judicial Reform Project piloted court-annexed mediation centers in three different cities. Trained mediators in the three centers received 417 cases and reached agreements in 136 of those cases. In 2002, the National Judicial Council decided to adopt the centers and finance their operating costs. The ICR considered the centers to be low in cost ($8,000 per month) and an independent audit by the Ecuadoran Controller General’s Office found them to be high in quality. The ICR notes, however, that many professionals within the judiciary see the mediation centers as competitors of the courts; the ICR therefore encourages continued education on “the merits of Alternative Dispute Resolution ADR.”41 Of course, it is possible that the ADR centers are both worthwhile and competitors to the courts. Like court reforms in Colombia or Sri Lanka, the Ecuador ADR centers were not evaluated for the extent to which they serve poor people. The ICR makes no mention of the makeup of the parties availing of mediation services. It would be useful to consider the needs of poor people at both the planning and evaluation stages of ADR programs. A relevant example here is the study of existing ADR programs planned by the Peru Justice Services Improvement Project. The study will include statistical analysis of cases and user profiles, organizational analysis of the cost and sustainability of the centers, and client surveys to assess the quality of services.42 Under the Law and Justice for the Poor Project, the JSDF grant that followed the Judicial Reform Project in Ecuador, 12 additional mediation centers were established that were not annexed to courts. In these centers, existing staff members of municipalities and, in two areas, NGOs working with indigenous people, were given a 100-hour training course in the theory and practice of mediation. A consultant evaluation judged these efforts to be highly sustainable because of the strong commitment of the host institutions and because the mediation service is provided by already-existing employees.43 At some point, however, the new mediation work might conflict with these employees’ prior duties. At the time of the evaluation, the centers were exploring sliding fee-for-service arrangements that might generate financial support for their services without compromising the goal of serving poor and marginalized citizens.44 The evaluation praised the services provided under the project for their respect for other existing methods of dispute resolution and their willingness to adapt mediation techniques to the particularities of local context. Standard rules of confidentiality, for example, were made more flexible in small communities in which most conflicts are public and the mediators and parties are known to each other. The evaluation recommended additional training on mediating criminal disputes, given the public interest inherent in criminal law. The evaluation also recommended the creation of a system for collecting user feedback so that the centers can better track the quality of services rendered.45 Voluntary dispute resolution has three potential advantages: it may be less expensive, less slow, and less acrimonious. None of these should be assumed, however. It is difficult, for example, to evaluate the claim in the Ecuador Judicial Project ICR that the centers were inexpensive without a point of comparison. The 136 cases were resolved during a seven-month period; at the cost of $8,000 per month per center for three centers, that amounts to more than $1,200 per case resolved. Even if the benefits of cost, time, and harmony do obtain, the empowerment perspective begs another question: are the outcomes fair for the less powerful party? It is important that mediation, which is supposed to be voluntary, not be strengthened and encouraged so much that it becomes a barrier to accessing justice in itself. For all their flaws, courts are intended to be that rare platform where a contest between two parties can take place on equal terms.46 Of course, that ideal is often a distant fiction in the courts that actually inhabit the earth. For this reason, the Justice for the Poor Program is interested in spaces of contestation that are incrementally more equitable than those of the status quo. The Cambodia Justice for the Poor program has produced studies on land disputes relating to a newly established land tribunal, on an NGO initiative to support the dispute resolution work of commune councils, and on the Cambodian Arbitration Labor Council, a nonbinding mechanism for resolving industrial labor disputes. The studies argue that both the land tribunal and the Arbitration Labor Council inhabit a fertile middle ground between law and realpolitik. On one hand, the Labor Council and the Cadastral Commission are far enough from the formal legal system to escape the dictates of patrimonialism. On the other hand, the institutions add structure and the timbre of legality to social contestation—between landowners and between unions and employers—which otherwise often devolve into violence and the rule of the strong.47 In Cambodia and elsewhere, the Justice for the Poor Program hopes to experiment further with the development of incrementally more equitable spaces in which disputes can take place.
Rule of law is meaningless unless there is access to justice for the common people. Having regard to the economical condition of the common people, the court congestion, legal cost and delays are the problems most open complained about by the public in Bangladesh and the frustration is mounting day by day as most people cannot afford to seek remedies in courts. It is absolutely necessary to undertake a meaningful legal aid scheme to ensure access to justice without which it is idle to talk about rule of law. ‘Access to Justice’ is one of the constitutionally recognized human and fundamental rights. The need for a pragmatic and scientific approach to reform aimed at making this right is a reality, in conditions typical to Bangladesh, has become gradually critical in the recent years.
Conception of Access to Justice:
Access to justice is often used as a term for access to the formal institutions of the legal system by those in search of a remedy (either individually in a particular civil or criminal case or collectively in a group action or constitutional challenge). It is also a term frequently used as a surrogate for a whole gamut of procedural and institutional matters such as access to courts, access to counsel, access to dispute resolution modalities other than courts, access in terms of being able to cut through the opaque nature of legal language in order to understand rights and remedies, access to information, access to remedies against abuse of authority and bureaucratic wrongdoing and so on. In short when we speak of access to justice, we are, generally, talking or writing rather less of substantive steps to the creation of the ‘just society’ (whatever that may be) and rather more of finding direct and affordable routes to a remedy for presumed wrongs, wrongs generally spoken of by lay persons as injustices.
To achieve access to justice as a procedural right and the substantive goal can be resolved partly through a flexible definition of a right of access. An important recent decision of the European Courts of Human Rights in Strasbourg illustrates a trend toward a more expensive view of what is meant by a right of access to justice. In the Airey case decided October 9, 1979, the court held that Ireland deprived Mrs. Airey of her right of effective access because it provided neither a lawyer of the state’s expense nor a simplified proceeding which would have enabled her to obtain matrimonial separation without the need of a lawyer. This kind of flexibility suggests that the procedural dimension of a right to access can be modified to favour less expensive, less formal procedures rather than access only to lawyers and formal courts the legal and procedural sources of the access to justice movement may be able to merge with the political and substantive goals which have also motivated reform. To allow individuals or groups to demand and obtain a full hearing in an independent court on their grievances and a reasoned decision based on the law.
The government has to facilitate access of the poor and the disadvantaged to the formal justice system of the country 15 . Further study will be undertaken to examine the existing government sponsored Legal Aid Scheme under (the administration of the National Legal Aid Committee) which remains practically unitized and determine the ways ; means of providing effective legal aid to the targeted people. The process and procedures of the Government legal aid will be suitably re-engineered to ensure that it disburses the funds effectively and fairly to the needy poor for the purposes of legal aid. The effectiveness of legal aid programmes run by NGOs would also be looked into for possible adoption. Fund from the project will be made available to match the existing government legal aid fund. This would enable legal aid fund to assist a larger number of poor and or handicapped litigants to secure justice. Lawyers in this regard have a considerable role to promote the project and effectively participate in conciliating the conditions of the poor and disadvantaged and to see that as a matter of fact and reality, the facilities of access to justice is provided and availed by them.
The government of Bangladesh as well in order to provide positive reforms in the matter of doing away with the backlog and delay in disposal of cases has undertaken the legal and judicial capacity building project in order to achieve improvement of civil justice delivery system by strengthening case management and improved Court administration, phased installation of automated Court administration information system (CMIS), training of District Court Judges and Court support Staff, upgrading and renovating the Court building, improvement of access to justice and supporting legal reform capacity building.
Importance of providing legal aid to the poor and disadvantaged is now universally accepted but how to make the justice equal in this unequal society is a question. There are number of agencies and organizations, viz. Bangladesh Society for Enforcement of Human Rights, Bangladesh Legal Aid Society, Bangladesh Institute of Human Rights and Legal Affairs, Bangladesh Commission for Human Rights, Society for Constitutional Law in Bangladesh, Amnesty International Asia Watch Body and Institute of Democratic Rights etc. operating in the field but the in the absence of any sustained and consistent effort and co-ordination those organizations are not in a position to make any headway towards providing legal aid to the people who need it. In this context I may take the liberty of making a few suggestions, which may be accepted as recommended by this Assembly. The Government may come forward with proper legislation to prepare a ‘Scheme’ so as to ensure the fundamental right of equality before law and equal protection of law as enshrined in our Constitution. A commission may be set up with the Jurists, Judges, Lawyers, Law Teachers and legal aid Activists to find out ways and means and to prepare a scheme for providing free legal aid to the needy so as to give it an institutional shape. In the meantime Bangladesh Bar Council can open a Legal Aid Cell and Legal Aid Committee in each Bar Association with the Senior and Junior members of the said purpose. The principle of affording legal aid should be accepted as principle of state policy to maintain social equilibrium in the society. The lawyers all over the country may accept this as a movement to give it an institutional shape on national basis and take this movement further ahead from national level to international sphere so that under the auspices of united nations organization it can assume the shape of International Labour Organization (ILO), World Health Organization (WHO), Food and Agricultural Organization (FAO), Human Rights Organization (HRO), International Economic and Social Corporation Amnesty International and the like.
Indeed, the Bank has coined a new term, “judicial efficiency” without precisely defining it. “Though there is little consensus on exactly what judicial efficiency means or how to measure it, people seem to agree that it is low. Judicial inefficiency is not only bad for litigants; it is also bad economic prosperity, undercutting a nation’s wealth and economic growth.” (Botero et al., 2003:61). An efficient judicial system shall provide speedy redress and less expensive court services to the parties involved. In an efficient judicial system, basic courts by the population regardless of income level; reasonable time to disposition; and adequate court provided remedies.
It is essential today for not only the effectiveness of rule of law but also enhancing Access to Justice as whole by introducing more cost effective ways to deliver court possesses which could entail the court and particularly judges and lawyers to take more responsibilities undertaking reforms and backlogs reduction requires in the judiciary. It was also held that there exist strong connections between efficient judiciaries and economic development. One according to this view, efficient courts will reduce the possibilities of abuse by the government and uphold the rule of law, and second, by creating an atmosphere conducive to transaction between parties which is important for a market based economy. For judicial reform there are plenty of schools of thought, (Botero et al., 2003) ranging from adequate funding to simplifying procedures. Common elements of different schools for enhancing the efficiency of the judiciary are reduction of the delay, decrease in the backlog, removing the hurdle for the poor to access justice and so on. Alternative forums for dispute resolution are expected to improve the competition and enhance the choice among the litigants, which will increase the judicial efficiency. Further, these forums along with small claims courts and specialised courts are expected to reduce the workload of the formal courts. However, one may note that, not all types of disputes are suitable for ADR mechanisms and more specifically and correctly one can identify the areas, higher will be the efficiency of the justice delivery system.
The Article was presented by Bashir Ahmed, Advocate, who participated as a delegate from Bangladesh, in the SAARC LAW CONFERENCE in Karachi, Pakistan on 03-05 October, 1997.