Rule of Law and Access to Justice

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.

Background:

Bangladesh achieved its independence in 1971 [1] through a long struggle and nine months civil war. The aspirations of the common people were to free the country from autocratic military rule and to establish a just and democratic society. For the cause of its independence, three million people sacrificed their valuable lives and more than two hundred thousand mothers were dishonoured. Thereafter, Bangladesh adopted an excellent constitution, which is the supreme law of the state, where it is pledged in the preamble that ‘the fundamental aim of the state is to realise through the democratic process a socialist society, free from exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social will be secured for all citizens’.

Bangladesh as a member state of the United Nations adopted many of the provisions of the Universal Declaration of Human Rights in its Constitution. This is reflected firmly in the statement made in the preamble of our Constitution. In respect of human rights, a guarantee provision was adopted in Article 11 of our Constitution that ‘The republic shall be democracy in which fundamental human rights and respect for the dignity and worth of the human person shall be guaranteed’ [2] .

Despite the constitutional guarantee, in absence of proper check and balance mechanism, violations of human rights are not sporadic. However, in order to promote and protect human rights, various professional, social and non-governmental organisations, in different capacity, are providing very important services.

Rule of law and Access to Justice:

Since the people became conscious about ‘self’ or knew thyself and consequently a sense of possession developed and in order to protect the same conflict between them arose and the early example is that Kabil killed Habil [3] . Possibly it was due to mighty Kabil prevailing over Habil and the rule of might is right thus generated which is still reigning the field. Thus power or authority concentrated in ourselves tend to corrupt him and the theory had developed power corrupts and absolute power corrupts absolutely evolved. Be that as it may, with the development of society, certain norms were evolved and developed in order to regulate themselves. In the society man have developed rules to regulate their conduct towards one another and someone amongst them to demand and enforce obedience to those rules. As the man is a rational being in order to prove its superiority over other living being has to abide by a set of values, rules and principles collectively called ‘law’ which regulates the conduct and relationship of the members of the society enforceable under the sanction of the state and is in essence the foundation of the society and state. At the time while the people used to be ruled by a person or a group of persons there was no such necessity for promulgating law as to administer the people the will of the rulers was enough but with the growth of the society and concept of democratic state the importance of law to regulate the conduct of human affairs has become imperative. In the civilized world human life without law cannot be conceived of and law is the instrument of social order. The law is so intimately connected with society that it cannot be isolated from the life in the society. It is not only the foundation of the society but also is an index of civilization. The supremacy and superiority of law is universally recognised for regulating the conduct of human being in the modern society particularly when democratic principles and norms are followed. Law is above all and nobody is above law is now established and universally accepted concept in all the states for regulating the life of the man. The rule of law’s central core comprises the enduring values of regularity and restrain embodied in the slogan of ‘Government of laws and not men’ and for establishing rule of law doors of law and law courts must remain open for the access to all sections of the people including the disadvantaged and financially handicapped.

The Origin of Rule Law:

Thus rule of law is an ancient concept of jurisprudence. It is expression of what is most sublime in the yawning of human spirit according to the record history of law. Second millennium (1700 B.C) saw the evolution and efflorescence of the legal concept in Rome during the legal period (753-510 B.C) which culminated in the reforms of the Roman Legal System during the reign of Servius Tullius [4] . The Government of Roman Republic (510 B.C 31 B.C) are the fruit of Man’s long struggle to establish a Government of Rule of law instead of a Government of a Rule of person. With the expulsion of Tarquin the seventh, the last king of Rome the Royal authority was abolished and the Roman Republic was founded in 510 B.C which heralded a new era of Rule of law, such as establishment of Senate, the legislative assemblies like Comitia Curiata and Comitia Centuritiate etc.

The application of twelve tables in 481 B.C. which continued to be an ancient source of law guaranteeing certain rights to the plebeians whereby the patrician Magistrate could no longer twist the law and utilise the uncertainties of law to pass arbitrary decisions on the plebeians, the Madina Charter at the down of Islam in the 5th century reigning the rights of the citizens and the protection of minorities, the signing of Megna Carta in 1215 AD between King John and his subjects (Barons), the petition of rights of 1628 barring the declaration of Marshal Law in England in times of Peace, the decapitation of Charls I in 1649 AD leading to establishment of the British Parliament, the overthrow of James, the despot, resulting are mile stones of man’s long struggles and sustained efforts for the establishment of Rule of law on the Cardinal principles of equality before law, the treatment of all citizens before the courts law and equal treatment of all citizens before the courts of law and equal treatment to the citizens without discrimination on grounds of sex, religion and place of birth and on the bar of the degrading treatment of the common law offenders [5] The Glorious Revolution of 1688 [6] and signing of Bill of Rights in 1689, the Habeas Corpus Act of 1679 and 1816, the Act of Settlement 1701, the Parliament Act 1911.

Dilating further on the subject, ‘Rule of law’ we must have notion of ‘what is law’? Accepting the meaning of the term ‘law’ given by the celebrated jurist Blackstone that ‘Law in its most general and comprehensive sense signifies a Rule of action and is applied indiscriminately to all kinds of action whether aminate or inaminate, rational or irrational’.

We know the Locke’s statement – ‘where law ends, tyranny begins’. Rule of Law is not a ‘mantra or magical sound’ that chanting of which will bring a magical change in the society and realize its revolutionary potential for equity, justice and universal well-being. I believe that we can best secure Rule of Law and promote, respect for human rights by rooting the efforts in our own cultural and spiritual traditions, without, however, turning a blind eye to the positive lessons from the experiences of other countries around the world.

We cannot ensure all the right things in society by making some laws and by applying them alone. Law cannot teach a person to be compassionate, caring and sensitive to other people’s sorrow and joys. So, it would hardly be possible to establish the Rule of Law and to protect or promote human rights in a society where those qualities are weak or absent. For example, oppression and atrocities on poor and weak people of the society cannot fully be stopped by Rule of Law or legal methods alone, because social maladies call for social remedies.

Evolution of human society has followed the path from agricultural society of industrial, information and the present day knowledge society. In agricultural and industrial society, human being and machines were dominating factors. In the information and knowledge society, intellectual capacity is considered as a dominating factor. Intellectual domination is represented by ideologies, principles and faiths.

Wherever they cross paths between individuals, societies and nations, then il denounces human rights and debacles the social justice, peace and harmony. To check such propensity of violating the human rights and to secure Rule of Law, we have no alternative but to follow the roadmap for graduating into a “Standard Human Being”. I believe ,the Standard Human Being can be created if we could get the combination of four essential elements, namely; a) education with value system; b) religions graduating into spirituality; c) removal of poverty through a vision for the nation; and d) responsible judiciary and human rights.

This indiscriminate use of law is the Rule of law for the pursuit of human happiness through dispensation of justice by courts of law.

Prof. A.V. Dicey who made significant contribution to the Rule of law influenced the flowering of juristic thoughts and ideas through his treatise, ‘An introduction to the study of the law of Constitution’.

American version of Rule of law is the due process of law which was inserted in the American Constitution by the fourteenth Amendment. The ‘Due process of law’ was treated in organic sense as term applicable to legal procedure in the year 1887 in the Menosata Rat Case (290 US 398). From the time onwards a conflict is noticeable between the power of the state and the due process of law clause of American Constitution. The approach of the Federal American Supreme Court to the interpretation of the due process clause was not uniform. Despite the frequent oscillation and adjustment in the interpretation of the ‘due process clause’ particularly during the New Deal Era of President Franklin D. Roosevelt (1933-45) the American Supreme Court has maintained its prestige and glory by upholding the right of judicial review of the legislation by courts of law [7] was not followed by Pakistan Supreme Courts as being not binding upon it. Later on the Rule of Law has made considerable progress in upholding the fundamental rights of the people through various judicial recognitions in the Sub-Continent. [8]

The concept of rule of law is designed to secure the social justice has a reference to the natural right of men, that all men are equal, born free and equal in sharing the common bounties of nature. The claim of equality or any of its cognate expressions in the social, economic and political realm, is ground of race, creed and heredity, is the principle invoked mainly for the implementation of justice in social, political and economic field. In Western philosophy Plato was the first thinker to have given the world the theory of ideas reflecting the vision of equality of man but he could not go to the extent of slavery anything against which was the antithesis of the theory of equality. Slavery was ultimately abolished [9] , the Americans, could abolish it during the time of Abraham Lincoln who laid down his life for the cause of emancipation of slavery. Social justice was initially a doctrine of social philosophy but ultimately it has entered into state craft and has occupied a place in the Constitutional field, social justice secured equality whereas political justice secured liberty. The glorious Revolution of 1688 in England with the achievement of Bill of Right (1889) the American war of Independence in 1776, the French Revolution with its declaration of human rights of men (1789) and Russian Revolution in 1977 against the deposition of czars were political in outlook and consequences but were motivated by social cause. The fatal onslaught on the Divine right of the Kings was the political corollary of great social upheaval which was more a rebellion against inequality than against despotism. The revolution had been the main purpose of reorientation of the society which was previously consisted of privileged and the unprivileged class. The relish of the natural right of men in the liberty, equality and fraternity was the dedication of revolution to mankind, social justice narrowed down to happiness to the greatest number economic justice which is also a counterpart of social justice. The state exists for the welfare of the society and is a means to an end. The modern state has undertaken the arduous task of overall development of man and society in all walks of life. The basic duty of a welfare state is to redeem mankind from hunger, ignorance, misery and other social and economic ills. It is to undertake and safeguard mental, physical and moral heath of individual by making provision for housing, employment, descent standard of living and leisure & recreation. All those are to be done by legislation which is the added liability of the state and has widened the field of administration of justice. This enjoins upon the state to set a way how justice is to be administered. When the justice was administered by the kings there was no system of laws. To ensure impartiality the administration of justice was handed over to impartial persons. There are some universal law which cannot be changed. The Constitution of different country may be different but the human trend, common to all is that each one of them aspire to secure justice by the government of laws and not of persons the law of different countries may be different but the justice is one and therefore the fundamental of justice are universal and immitable. The natural justice is justice in deed and in reality, while the legal justice is more or less formulation of natural justice by civil law for the direction of Courts & Tribunals by which the justice is administered.

The parliament is sovereign but the sovereignty of parliament does not mean the power to legislate arbitrarily. If the Parliament legislate law against the morality and against the principle of fair play such legislation can be knocked down by judiciary which is supreme in the field of administration of justice. Man is the creation of nature and member of society and on this assumption justice can be two kinds; natural and social. Therefore, circumstances of the just state are the concurrence with the just order of the society. Just state is that which strives to promote the welfare of the people by securing and profiting of the liberty of the liberty of the people as efficaciously as possible. The state strive to secure social justice for her people the right to adequate means of livelihood, to secure equality before the law and equal protection of law in the day today life and in the Court of justice. In the language of Salmond ‘Justice is the harmonious reconcilement of individual conduct with the general welfare of the society, social wisdom to regulate the routine of public life, law and justice and co-related; justice is not only to be conceived but has to be perceived and justice also must appear to be meaningfully done.

Ours is a democratic state and all the ideals for a welfare state ensuring Human Rights declared in the Declaration of Human Rights in the UNO charter has been embodied in our Constitution either as fundamental rights or as fundamental principle of state policy. Thus is our preamble to the Constitution as well we have pledged that it shall be a fundamental aim of the state to realise through the democratic process a socialistic society, free form exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizen. From the above it appears that the idea of providing legal aid to indigents which had its origin in the developed countries has now been accepted as one of the fundamental principle of administration of justice. Our neighbouring country has also laid stress on the legal aid system and public interest litigation being in corporate [10] .

The overall objective in formulating the fundamental principles of administration of justice is to improve the efficiency, effectiveness and accountability of our justice delivery system and to increase access to justice particularly for women, children, poor and disadvantaged persons thereby making the justices system more accessible, less costly and capable of disposing of cases in a timely and just manner for all.

Nothing above could be effectively done unless the components to the justice both the learned lawyers and the learned judges are trained with adequate trainings and motivation for improvement of access to justice.

It is the duty of every judges and lawyers to uphold at all times dignity and high standard of his profession as well as own dignity and high standing as member thereof, for they are expected to contribute significantly toward creation and maintenance of condition in which a government established by law can function efficiently so as to ensure the realization of political, economic and social justice for all citizen and thus learned lawyers have a considerable role for the protection of law and giving advise to secure to rights and protection of their rights of the citizens by advising the clients honestly and not counselling any perjury in order to secure to the citizen the enjoyment of their lives, property and honour.

Similarly the learned judges are also oath and/or duly bound to secure for the society and the citizens the enjoyment of their lives, property and honour. The learned judges should have vision and commitment to dispense with even headed justice come what may under any circumstances. The Government has as well as started training scheme for the judges towards achieving these goals though judicial administrative training institute.

The following are certain tools for improvement of access to justice:

Enhancement of Gender Sensitivity: Steps will be taken to raise the level of gender-sensitivity in the judiciary. Appropriate training in gender sensitivity, both upon induction and during service will be organized in the JATI. In line with the government’s strategy in terms of Constitutional mandate efforts should be made to have increased representation of women in the judiciary.

Measures would be initiated to reduce the cost of litigation for the underprivileged litigant. For this steps would be taken to strengthen, improve, and revitalize the Small Causes Courts and the Family Courts [11] . Such courts will apply the mediation or informal procedures available to them and will encourage dispute resolution by ‘Shalish’ and mediation or reconciliation method [12] .

Recently provisions have been made for alternative mechanisms in our legal system for resolving disputes in a consensual manner, through conciliatory (and less adversarial), less formal and more flexible (and so less costly) processes. The new Arbitration Law and recent amendment in the Code of Civil Procedure has been enacted so as to enable parties (both in respect of commercial and non-commercial disputes), with a genuine desire to resolve their disputes by-passing the logjam of the court and have their matter determined by an expert decision-maker of their choice [13] . Also certain NGO sponsored/ run traditional community structures for settlement of disputes (shalish) may be refined and placed on a formal, systematic footing, to benefit especially the underprivileged litigant. Qualified NGO’s will be assisted to do this job [14] . They will present proposals for financing, on the basis of pre-determined criteria to meet the most basic needs of traditional ADR development schemes/programs, in the areas of training, training equipment and materials, and research and library facilities and for holding workshop and for meeting sundry expenses. Activating the existing Grameen Court system may also be studied in this context.

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.

Conclusion:

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.