By Preeti Sikder
It cannot be denied that, people who become victims of oppression on a regular basis or are marginalized mostly do not have access to justice. But it is also true that the issue of accessing justice is not merely a concern for the poor and disadvantaged ones only as it is misunderstood often. It is in fact crucial in everyone’s life. For example, these days, we cannot even download any mobile application without agreeing to legal terms. Therefore a question obviously arises, wasn’t access to justice an important fact since the inception of organized legal systems? But the answer would probably be negative.
‘Access to Justice’ was primarily known as the ‘access’ to the justice system and in-court representation by a lawyer. Consequently, in the post-World War II discourse; this concept was described as the goal and benefit of legal aid, or of the means to equality before the law. In the late 1970s, the idea had transformed to be expressed as an ability to avail oneself of the various governmental and non-governmental institutions, in which a claimant might pursue justice. This concept mainly indicated to devising new arrangements for institutions so that certain barriers, for example: cost and complexity of the court, language limitations between claimant and court etc might be relented. Therefore, the struggle for establishing access to justice is reflected in modern legal systems as the movement to improve such access is distinctively new.
It was a comparative research project titled ‘Florence Access-to-Justice Project’ which first shed light upon the holistic feature of access to justice. Funded by the Ford Foundation, the Italian Research Council and Italian Ministry of Education undertook this project being led by general editor Mauro Cappelletti. He codified a broadened notion of access beyond representation by lawyers and beyond courts as the site of justice seeking. Publications of this mammoth project identified ‘three waves’ of evolution of access to justice in the late 1970s. Which were:
- First wave: In 1965, neighbourhood law firms in the United States initiated reform of legal institutions by introducing legal aid.
- Second wave: Through the representation of ‘diffuse interests’, public interest law firms of the United States emerged in the 1970s. This era saw the surge of class actions and public interest litigation and the emergence of public interest centres as well.
- Third wave: Going beyond the case-centered advocacy, this wave represents a broadened idea of less adversarial and less complex approaches therefore, less formal alternatives to courts. Changes in forms of procedure, changes in the structure of courts, or the creation of new types of courts, the use of paraprofessionals and changes in the substantive law itself characterised this wave.
Through the changing nature of these three ‘waves’ it becomes clear to us that it was with the popularity of welfare states, that the concept of access to justice gained momentum. But due to the subsequent failures of that model, development works have been transitioned more towards a human rights-based approach to development. In this modern innovative model, the new role of State and other actors is to help the poor overcome obstacles blocking their rights and give governments the tools and training to provide these rights. It was firstly Article 7 of Universal Declaration of Human Rights (UDHR) and subsequently Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which promoted the importance of access of justice. Since then the essence of access to justice has become apparent from these norms as the urge to uphold equality and non-discrimination. Basing on these concepts, the United Nations Development Programme (UNDP) defines “Access to Justice” as:
“The ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards.”
The human rights standards mentioned in this widely accepted definition is based on other international documents prepared by the United Nations to some of which Bangladesh is a party. Bangladesh Government therefore is surely under the obligation of ensuring access to justice for all of its citizens. The bill of rights contained in the Constitution of Bangladesh include the core commitments that underpin the right of access to justice which have also been formally recognised and underpinned by specific legislations in Bangladesh. Words of bigger hope are, ‘Access to Justice’ has been added as a standalone goal in the list of Sustainable Development Goals (SDGs). The Goal 16 of SDG is to –
“Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”
Therefore, renewed efforts to ensure access to justice is now of greater importance than ever in the whole world. In attaining this goal, every country will now strive to provide equal opportunities to all and we all expect Bangladesh to continue the progress. So that every citizen especially the marginalized and deprived ones can be treated justly.
Preeti Sikder is a Lecturer at the Department of Law and Human Rights, University of Asia Pacific. She received the Prof KAA Quamruddin Memorial Fellowship at the Human Rights Summer School organized by ELCOP in 2013, and has published a research paper on climate justice in the same year. Ms. Sikder has also worked as Research Assistant at the Bangladesh Institute of Law and International Affairs (BILIA) and volunteered for the Human Rights Law Clinic under UNESCO Madanjeet Singh South Asian Institute of Advanced Legal and Human Rights Studies (UMSAILS).