Expanding the Notion of ‘Access to Justice’

Introduction

The United Nations Sustainable Development Goal (SDG) No.16.3 appeals to all countries to ‘promote the rule of law and ensure equal access to justice for all’. The inclusion of SDG 16.3 by the Inter-Agency and Expert Group (‘IAEG’) -an international body comprising of the UN member states along with other observer agencies- has a deontological basis. It aims to see that development is not merely measured in digits, but is influenced by the growth of more inclusive societies respecting the rule of law. However, the indicators to measure the rule of law leading to ‘access to justice’ have been limited to; the proportion of victims that have complained to competent authorities and other officially recognised conflict resolution mechanisms (16.3.1) and the ratio of unsentenced detainees to the overall numerical strength of prisons (16.3.2). There are several inherent problems with the above-mentioned indicators. Not only is the official data insufficient (the same has been concluded in the findings of the Institute for Economics and Peace on a global audit) and in most cases highly politicised, but also the system lacks any kind of international harmonisation. Moreover, the indicators are greatly restrictive in their scope. This article seeks to make an attempt at suggesting which necessary indicators could be included to broaden the scope of ‘access to justice’ across communities.

Suggestions for Expanding the Existing Indicators

This section has been arranged to suggest the broader parameters that are being proposed, followed by their sub-parameters and explanations.

1.    Existence of Feedback Mechanisms

Previous academic reports and justice projects, such as the one that was undertaken by the Open Society Initiative in collaboration with the Organisation for Economic Cooperation and Development (‘OECD’) have aimed at the introducing a  broader feedback system to identify user’s perception of the costs and quality of litigation, the resultant outcome and the overall experience. Needless to mention that this system should be introduced to all stakeholders and not merely to the participants at the bar. Feedbacks must be obtained from litigants, law students and lay advocates. Moreover, this should not be restricted to the ‘officially recognised resolution mechanisms, but it should be extended to include what Martin Barry refers to as the ‘poor people’s courts’ and to those who are not seeking professional legal help. All stakeholders involved in the litigating process, should be involved in reducing the chances of biases that might arise from conducting opinion surveys where only the litigants are involved. One has to keep in mind that these litigants are not expected to be well-versed in the legal aspects to be able to decide whether their representation was proper. Researchers at the Vera Institute of Justice -a non-profit national research body– have also suggested the inclusion of questionnaire and interview methods to get a first-hand or a second-hand information regarding corruption, for example, whether litigants or prospective litigants have been previously asked to pay bribes.

2.    Provision of Legal Aid Resources and Other Forms of Assistance

The White House Legal Aid Interagency Roundtable along with a few other bodies have suggested the inclusion of legal aid as one of the indicators to the SDG 16.3. The committees have been vociferous about the provision of legal aid to pro se defendants and have constantly emphasised the cost and quality of legal aid, particularly, for criminal cases (not restricted to full legal representation and extended to first appearances, bail hearings.) Even where fees are charged, one must examine whether they are so expensive so as to deter litigants from seeking representation. Further, the potential indicator for legal aid should take account of the court fees, stamp fees and other burdensome expenses. The committees believe that legal aid resources available locally, in the form of self-help desks and paperwork assistance, should also be considered for measuring legal aid, as an indicator. Importantly, a few countries like Japan have tried to address the problems faced by duty attorneys while accessing their clients by providing them with economic support for travel purposes, easy access to settle in areas with a pressing need for representation and free training and technical advisory sessions. Some of the private attorneys who serve as duty attorneys are also motivated by the prospects of support to their law firms from the government. Pro se lawyers have often been found to be incompatible for the work assigned to them. To address this, cases must be assigned to voluntary lawyers on the basis of their experience in a similar line of work and the professional staff should diversified. These suggestions will likely address the issue of lawyers who are incompetent and unwilling to take up pro bono cases. The indicator for legal aid should evaluate various types of legal services including mediation and conciliation efforts or settlements done through negotiations on a community basis. The same committees during the course of consultation further  suggested that in case of pre-trial detainees, ‘early entry’ of lawyers must also be ensured as part of the process of evaluating legal aid. Police accountability and setting up of oversight bodies also find a mention in their report.

3.    Improving Infrastructure within Justice Institutions and Redefining the Role of the Judiciary

Interestingly, a few countries like Papua New Guinea have emphasised the development of court infrastructure and facilities and have prioritised them within their development agendas. The infrastructure within the court complexes must be aligned in such a way, so as to prove advantageous for women and the disadvantaged classes, including the disabled. It is the inherent responsibility of the courts to see that the parties are not prejudiced by the conduct of their counsels, and that there are no instances of misconduct or appearance of bias during the adjudication process. As a part of such revamp, judges must assume certain pro-active roles as well. They should see that the proceedings are carried on without regular adjournments and baseless rescheduling which ultimately drive up the costs for litigants. They should also ensure that the litigants are aware of their rights and have fully understood the basic procedures of the court system. This is an essential due process requirement of the parties’ rights. Mechanisms must be set in place to ensure that judges do devote adequate time on all cases. The Rule of Law Institute has suggested including sub-parameters such as ‘number and distribution’ of justice institutions. The sub-parameter aims at seeing that justice institutions are equally accessible through transport systems, have lower ‘up-front costs’ while initiating claims, and are ridded of any stigmas and threats. This sub-parameter is extremely relevant in the case of fragile and conflict-ridden states. Newer technologies must be employed to improve access to courts and other dispute resolution mechanisms where being present physically is not a viable option, for example, through online filing of applications, online dispute resolution systems, and video-conferencing facilities.

4.    Existence of (Accessible) Appeal Systems

Finally, access to justice must be measured on the anvil of whether there is a proper availability of appeal. This would include sub-parameters such as lower courts forwarding the relevant documents to the upper courts without any inconvenience on the part of the litigants. The European Network of Councils for the Judiciary (ENCJ) has gone as far as to suggest that appeals should not be restricted only to points of law but must extend to points of facts as well. However, to prevent unnecessary caseloads and overburdening the superior courts, filters must be used to allow only the meritorious appeals. The defining criteria for filtering purposes could be decided by members of the judiciary themselves, hearings could be restricted by limiting the time for oral pleadings of the parties. The Council also states that not all meritorious cases need to be heard on an oral basis, but some could rather be resolved on paper.

Conclusion

Even the UN Rule of Law Indicators propose indicators that far exceed the ones that have been assimilated, such as availability of interpreters for the litigants, redress and reparations where justice has not been delivered, special focus on gender-based violence redressals and official and unofficial fees required to access the courts. This article was merely an attempt to illustrate that ‘rule of law’ and ‘access to justice’ have multiple dimensions, and the present global indicators are no doubt going to fail at capturing all of them. The parameters and sub-parameters discussed within the article have already shown that a participatory approach has to be adopted from all segments of society. Justice systems everywhere need to coordinate and linked with each other in the form of civil society, governmental and private participation, so as to see that the developmental goals are not marred by the relativity of these terms.

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