Human Rights Advocacy
Easy access to justice: Overcoming the problems
Mohammad Yusuf Ali
The contemporary justice delivery systems are not only confronted with the explanation and implementation of various newly acknowledged rights but also with the instrumentalities or procedures to how justice can be made easily accessible to the mass people. Indeed, 'easy access to justice' is gradually getting the status of an important human right. This concept finds its jurisprudential basis from the recent (1970's) shifting of legal centralism to legal pluralism. Legal centralism put much insistence on formalism as a result of which justice became accessible only to the rich and influential people. The marginalised and disadvantaged people continued to be exploited and denied basic human rights.
As a reaction to such type of adjudication system informal justice system came into being under the shadow of legal pluralism. It aims at reaching justice to the doorsteps of every section of the society particularly to the unable, disadvantaged, illiterate, poor persons by overthrowing various procedural shortcomings. Legal pluralism sees law, a normative science, as an important part of social science and accordingly delimits its function in the society. Now, law is an effective weapon in the hands of the state to mitigate the social needs by ensuring justice for all. Such effort of law is liable to be failed if justice cannot touch every section of the society. Justice can never reach to the mass people if they do not have 'easy access to justice'.
Not only the recent attitude of jurisprudence but also the practice by courts, various organisations, construction of constitutional provisions, decisions in various cases supporting the legal aid, the current accent on justice to common man, emergence of public internet litigation (PIL), representative actions -- all of these manifestly support the notion 'easy access to justice' a and are engaged in intimate effort to create a legal atmosphere in which 'easy access to justice' will be acknowledged as a right and thereby ensured.
The concept
Now let us have a brief look at the meaning and characteristics of the phrase 'easy access to justice'. Easy access to justice means easy approach to justice i.e. the concept mainly implies that one can easily approach to the court for redress without compliance with various vexatious procedures. But it does not negate the inevitable steps of proceedings such as investigation, trial, production of witnesses, arguments etc. Rather, it negates the provisions [such as strict construction of locus standi, initial complexities in filing a suit, unnecessary delay in the disposal of cases etc] that act as blocks in the way of justice. It is thus committed to make justice more humane, more reliable.
The term 'easy access to justice' manifests the following features of justice:
*Justice should pay more attention to the aim rather than the to the form.
*Justice should reach to every section of the society.
*Justice delivery system should be less formal and less expensive.
*The scope of justice should be enlarged.
*Justice should not become the hostage of a class.
*Justice should not only solve the present problem but also the problems annexed to it, which are likely to happen in future.
*Justice should maintain equity.
Bar to easy access to justice
'Easy access to justice' is a flourishing concept. In the context of our country, it is still passing the infancy period. To make the infant adult we have to combat a lot of hurdles in its way of nurishment. The main obstacles to be overcome in this regard may be summed up as following:
*Strict legal formalism or strict procedural technicalities such as orthodox construction of legal terms like the Locus Standi so as to preclude public spirited persons from suing on behalf of the people.
*Lack of knowledge regarding filing of cases. Some people are even afraid of filing cases as they superstitiously believe it as an unholy process. The reason behind such perception is, as they believe, that (a) placing anyone before the court by filing case is insulting that person; (b) it is impossible to conduct a case without offering bribe to some vested groups at various stages of proceedings; (c) courts and jails are the places for the brokers, thieves, dacoits etc, if one goes there his/her status will also be lowered.
*Presence of outworn values in existing laws which do not conform to the present social needs.
*Multiplicity of laws on a particular matter.
*Delay in the disposal of cases for which people generally try not to have recourse to the court for vindicating their rights unless any kind of unavoidable situation arose.
*Cumbersome execution procedure of decrees in civil cases.
*Lack of judges and other officials in courts of law as a result of which cases are mounting up.
*Lack of means, which generally results in lack of access to courts.
*Lack of utilisation of modern technology in keeping records and documents. It is acutely felt in land related suits. As the records are kept in written papers some of them get tattered in course of time and it becomes so hard to find them out. As a result those litigations suffer from delay and non-availability of documentary evidence.
*Bribery, corruption, lack of information, lack of awareness, scanty legal aid, unethical conduct of some lawyers and so on.
Some suggestions
In human rights terminology rights mean enforceable and vindicatable rights. Rights, which are beyond enforceability and vindication, are not rights at all. The best forum for enforcement and vindication of rights is the courts administering justice. So, the courts should be easily accessible. If the courts are easily accessible, the very right 'easy access to justice' can be realised. In that regard the following measures may be suggested.
*Taking rights based approach towards 'easy access to justice." It implies that the concept must be acknowledged as a right and must not be denied.
*Multiplicity of laws and variance of laws on a particular matter should be avoided. For such cases uniform laws should be enacted.
*In passing laws socio-economic condition of the people of the country must be considered.
*Laws should be interpreted keeping pace with the contemporary social needs.
*Representative actions like social action litigation (SAL), public interest litigation (PIL) should be practiced on a wider scale.
*The scope of epistolary jurisdiction of the court should be enlarged.
*Free legal aid should be given on a wider scale than is given today. In this regard, vis-a-vis the efforts of national organisations like BLAST, ASA, ASK, BELA, international efforts should be sought.
*Outworn procedural technicalities should be avoided.
*In preserving various records of the courts modern technology like computer software should be widely used.
*Delay in the disposal of cases should be avoided in this regard, frequent taking of time by the lawyers must be stopped.
*Suo Moto intervention of the court in various cases of grave injustice [such as languishment in jail of a person without trial] should be increased. In this regard the Supreme Court can establish a fact-finding commission.
*Informal legal education, human rights education should be imparted on a wide scale so that the prevailing misconception of the mass people towards law can be changed. In this regard, various programmes (seminar, symposium, conference) on legal and human rights issues should also be arranged in district and Upazila level.
*Last but not the least, lawyers should engage some sort of mental insight into the law rather than strict legal insight.
Mohammad Yusuf Ali is lecturer, dept. of law, Sylhet International University.
