Another reason for this lack of knowledgfe could be the language barrier. The law, and norms guaranteeing the rights are phrased in technical legal jargon, incomprehensible for the poor, illiterate rural class in developing countries.even if they do gain information, it is difficult for them to understand it.
This legal obstacle secerely impedes access to justice.
Within these communities, some groups are even further marginalized and lack awareness, women being one such group. For instance, in some villages of India, men think it is their right to vote on behalf of the female members og the family. The women, completely unaware of their political rigth to cast a vote, simply accept this imposition, taking it as the norm. as they don’t view it as a rights violation, there is no way that they can identify it as such. Further, even if they do regard it as a violation, the social barriers such as family pressure and the stigma attached in going to the police prevents them from accessing justice.
DFID (SSAJ) gives the example of a rural woman who is raped by the village landlord. In such a situation even if that woman does identify the rape as an attack on her personal dignity and related rights, in blaming the landlord as the perpetrator she would face numerous other hurdles. At this stage the first legal instution comes into the picture; the police.be it the woman enforcing her right to vote or her right to physical integrity, her family would pressurise her into aqcuiescing in her fate due to the social stigma a complaint would enatil. Even if she does reach the police station, they would view her as being of ill repute and as trangressing the norms of their society for coming unaccompanied by a male member of the family. The police would more often than not side with the influential landlord, mainly because of the bribe whivch is advanced by the landlord in order to suppress the case without an F.I.R. being filed. This is the first instutional barrier that a victim faces. However, this is not to say that women are the only ones who suffer police repression. If the local landlord appropriated a poor farmer’s pice of land, the police would similarly do nothing about it.
Here, the geographical situation again becomes a hurdle. The victim would have to travel to another locality or town in order to find an institution or police station which would be sensitive to his of her situation. However, their poverty prevents them from possessing any means of transport or money to travel.
Due to this police brutality, which is channelled towards the victim, the aggrieved party usually just stays quiet, either accepting a small sum as compensation, or simply accepting their fate.
The institutional impunity towards the offender engenders lack of trust for the state, it being viwed as an enemy, thereby deterring futer victims from pursuing access to justice.
The social, institutional as well as legal barriers are prominent from the time a victim begins his cumbersome journey of accessing justice.
If the victim manages to somehow overcome these barriers, the claiming stage is even more difficult as a formal claim has to be made.
However, the plurality of legal systems operating within countries, moreso in the rural areas, are a significant barrier to accessing formal justice. These systems are usually biased in favour of the men, especially the rich and the influential.
For instance in Pakistan, the informal jirga or panchayat system is prevalent in most villages whereby instead of the courts, the village elders (mostly male) decide any disputes which arise. In 2002, the village elders in a village, Meerawala, in the province of Punjab, sanctioned the gangrape of a girl, Mukhtran, due to some conflict between two tribes. In such a situation, when the institution to be redressing the wrong is itself sanctioning it, how can access to justice be realized.
These informal systems are not under any threat from the criminal justice system as the village inspectors and time and again invited and given the price for their cooperation.
In africa, the customary law, dealing with most small criminala nd civil cases is not subject to the constitution and therefore women are not able to access land despite the constitution p[roviding to the contrary(Magaya v. Magaya).,
If the victims wish to take the case in front of a court, geographical hurdles are again a problem because the courts are situated far from the villages in big cities. The time, money needed to travel are sometimes beyond the victim’;s means. Further, the courts are seen as alien and feared as the unknown. They are usually inconsiderate and intimidating.
The judiciary has in some contexts tried to overcome some hurdles, as in Ex P Witham where it was held that excessive court fees would render the courts inaccessible and therefore deny access to justice.
Anderson has identified that one of the main caues why people avoid going to courts is the langual=ge of the law. Not only is it technical, it ios not framed for th poor. It serves the purpose of the property owner the employer.
The law, phrased in an alien language is not only difficult to understand, but it is also difficult to ascertain which law is relevant.
To pursue a case in court, a lawyer has to be appointed, with additional costs. These are very hard to bear. If the state provides legal counsel, it may be disintersted due to the little amount of money that is involeved and may lead to an undeserved conviction. (BOODRAM).
Women face these obstacles not just as victims but as women victims. The Zina Ordinance in Pakistan, based on a misconception of Shariah Law, prosecutes a woman who claims she has been raped but fails to produce 4 witnesses. This is what led to the conviction of a 17 year olf blind domestic worker, Safia Bibi, who was raped by her employers. Due to no witnesses, and the infuential standing of the rapists, she was put behind bars for committing adultery, while the offenders were left untouched.
In such a situation, the courts, being state institutionsbasic responsibility of the state; ensuring justice for all.
Roberto Gargarello notes that since its inception the judiciary has been far removed from the people and therefore is not only unaware of their needs but also prevents a feeling of trust in the judiciary from buliding.
However, the economic constarints do not end with bribing the police, travelling to the city and paying the lawyer. In recent years a new culture of ‘taylor made’ judgements has emerged. In other words, judges can be bribed for the decision to be in a particular party’s favour.
This is the most significant institutuonal barrier as the judiciary is the protector of rights.
A theme which runs through all these barriers is that of poverty. A rich victim bringing a claim would not be dependent upon the state to proveide disinterested legal counsel, or face hardship in bribing the judiciary.
The next stage is relatively easy, that being obtaining an order (winning), provided that the hurdles in claiming the order can be surpassed.
However, before going into the last and most important stage of the accessing justice, enforcement, the practical strategies to overcome the hurdles so far identified will be daelt with.
At every stage, the perfect solution would be poverty alleviation. But on a more realistic level,at the naming stage, the unawareness has to be met. This could be tackled by awareness raising campaigns. NGOs and other non-satae parties could be involved. Para-legals and semi-trained law students could go in and not only raise awareness but also give advice on the blaming and claiming stages.
The ADB project for improving access to justice in pakistan contains provisions for rights awareness and legal advice in the common language, Urdu.
This calls for linkages between state and non-state apparatus (DFID).
For instance, certain bonded labourers don’t even know that they are in an abnormal relationship, leave alone any knowledge aboyut the ILO Conventions.
The geographical isolation from the city could be bridgedby such campaigns.
The police in villages needs to be sensitized and reformed. It needs to shift focus from serving a particular sector of society to serving the general public.
The police should be independent from politics and should not be overawed by the influential and rich landlord and employers.
There should be partnerships between the police and local communty neighbourhood watches, in order for more efficient crime reporting.
The police should be trained in investigative and interrogative techiniques, and to avoid being biased in favour of the rich party, their salaries should be increased.
The social outlook towards certain groups has to be restructured. For instance, women need to be givenhigher status in society.
The outmoded and discriminatory laws need to be reviewed.
DFID has pointed out the importance of linking safety security and access to justice. It is only when the poor will feel secure will they invest in small businesses and trade. If there is the constant fear of there property being taken away and therte being no means of getting redress, they would not invest and therefoer would not develop.
For poor people access to justice is particularly important beacsue if a milkman’s cow is stolen and he does not have access to a responsive justice system, he would in effect be put on the street.
The local informal justice systems also need to be reformed in order to preserve the good aspects and dispose off the bad. Their knowledge of the area and experience should be utilized. Perhaps they could be trained and made aware of the needs and situation of the marginalized.
The high prices that lawyers charge serve as a deterrent when people think of taking a case to court. Therefore the state should provide adequate and appropriate legal services including lawyers and advice byt para legals in the rural areas in developing countries. This could significantly improve access to justice. In Tanzania, the no-win-no fee system has proved effective, whereby victims don’t have to pay the lawyer unless they win. Therefore lawyers put in extra efforts to win cases and discourage frivolous claims.
Judges also need to be sensitized. They need to be aware of the circumstances of the victims.
DFID has emphasised that the system should not only be viewed, but reformed from the victim’s perspective.
To avoid corruption, the decision amking process should be transparent and there should be checks on the judges salaries and living standards.
The geographical hurdles faced in travelling to court could be addressed by mobile courts or by the creation of local courts.
Further, the courts could, by expanding locus standi, thereby relaxing the rules of standing allow NGOs and paralegals to bring cases on behalf of those unable to access courts easily. This has been the approach in most countries in environmental law matters, and the Indian Supreme Court has gone a long way in promoting access to justice by allowing such claims in socio-economic issues, forced labour situations and situations of police atrocity.
Delays caused in the system could be tackled by partnerships between courts and alternatives to dispute resolution, like mediation and negotiation.
Increased police efficiency leading to more arrests and coupled with quick resolution by courts of ADR systems can lead to improved access to justice. The police, making evidence readily available to courts and cooperating would also help.
The judges could be given security of tenure and political independence in order to decide cases justly.
Human rights commissions could also play an active role by keeping police power in check and the discretion of the judiciary shoukd be limited.
Partnerships need to be formed between CSOs, businesses and legal institutions, in order to offer jobs and leisure acyvities to the yound offenders.
However, the main area of access to justice and one in need of reform is the last srage identified by Anderson. Enforcement, or the translation of the court order into reality has been said to be 50 percent of the battle, the first 4 stages representing the other 50.
It bridges the gap between formal and social justice.
However, courts and lawyers have focussed upon legal aid and courts improvemts, and no one has rallied for better enforcement.
Without enforcement, the court orders are mere paper promises.
Corrupt enforcement officials, and general lack of political will can lead to the whole process of getting to the courts and obtaining an order worthless.
In bangalore, over 10,000 cases are pending against officials for contem,pt of court for not enforcing judicial orders.
NGOs and other bodies are required to monitor the progress made on orders.
Stricter punishment for officials can be a way to ensure enforcement. For instance in Singapore, owners of businesses that caused pollution were asked to perform community serice. The shame caused was much more effiecient in enforcing the order.
Perhaps the orders being attached to the offenders salary would be an effective mechanism.
The girl raped by her landlord would only be satidfied if he is put behind bars and pays compensation, and not just by the courts issuing long, winding judgements.
Pending a complete overhawl of the system, the awareness raising campaigns and measures to increases institutional accountability as well as confidence in the system need to be pursued honestly, not discounting the importance of eliminating the root cause which creates opportunities for violations and impedes access to justice; poverty.
