Towards socioeconomic, environmental justice for achieving integrated, indivisible sustainable development

goal16Commenting on Goal 16 of the Sustainable Development Goals (SDGs), adopted by the UN General Assembly, the following report by the Centre for Social Justice, Ahmedabad, says that, among other things, it seeks to strengthen of civil society and informal judicial grievance system in order to maximize the reach of judicial system among the people as far as these non-states/informal judicial system are in consonance with the International Human Rights Standards:

The 193 member United Nations General Assembly formally adopted the 2030 agenda for sustainable development in September 2015. The agenda, “Transforming Our World: The 2030 Agenda for Sustainable Development”, is composed of 17 goals and 169 targets to wipe out poverty, fight inequality and tackle climate change over the next 15 year.

These goals seek to build on the (MDGs) and complete what these goals did not identify or achieved. They seek to realize the human rights of all and to achieve gender equality and empowerment for all. They are integrated and indivisible and balance the three dimensions of sustainable development: economic, social and environmental.

(MDGs) (https://sustainabledevelopment.un.org/post2015/transformingourworld)

Out of 17 goals, the Goal 16 builds on the need of access to justice to the people of this planet so as to develop the lives of people and bring peace and prosperity to this planet.

Goal16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

16.1 Significantly reduce all forms of violence and related death rates everywhere.
16.2 End abuse, exploitation, trafficking and all forms of violence against and torture of children.
16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all.
16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime.
16.5 Substantially reduce corruption and bribery in all their forms.
16.6 Develop effective, accountable and transparent institutions at all levels.
16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels.
16.8 Broaden and strengthen the participation of developing countries in the institutions of global governance.
16.9 By 2030, provide legal identity for all, including birth registration.
16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.
16.A Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime.
16. B. Promote and enforce non-discriminatory laws and policies for sustainable development.

Justice serves as the fundamental part of the dignity of human lives as human life is qualitative when it possesses rights in rem i.e. against all to preserve its dignity which makes it more than a mere existential life. “The first requisite of civilization is that of justice”, said Sigmund Freud.

Justice can’t be read as an abstract concept which seems impossible to achieve but is required to be quantifiable and qualitative so as to sever to the human dignity. “At his best, man is the noblest of all animals; separated from law and justice he is the worst”, said Aristotle.

Justice should be in the reach of people to make it a virtue capable of being realised. “The hope of a secure and liveable world lies with the discipline non- conformists who are dedicated to justice, peace and brotherhood”, said Martin Luther King Jr.

What is access to justice and why is it a primary duty of the state?

Access to justice is defined as ability of an individual (citizen, non-citizen, civil society) to seek and obtain legal remedy for an infringement of any right through formal or informal justice mechanism and necessarily to be in compliance with International Human Rights Standard.

It is more than guaranteeing legal representation and providing individual access to courts, it includes normative legal protection, legal aid, legal awareness and counsel, adjudication, enforcement, civil society oversight.

The concept of access to justice become meaningless if the individuals fears the system, perceive it as an alien and do not access it due to unavailability of finance, lawyers, knowledge of rights and existence of a weak judicial system.

There are several barriers to justice like financial, geographical, linguistic, logistical, gender- specific and race, religion, ethnicity, culture or any community specific.

Access to justice can be improved and established by not only by improving quantity (increase in number of court staff, police personnel in investigation etc. but quality (better prepared attorneys, technical skill equipped investigators, judges, attorneys, creating awareness about functioning and scope of justice delivery system ) too.

The strengthening of civil society and informal judicial grievance system should be encouraged so as to maximize the reach of judicial system among the people as far as these non-states/informal judicial system are in consonance with the International Human Rights Standards.

(http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/7-rule-law/access-justice)

The very inception of state was based on the social contract between the people and state where people surrendered their rights to the state in consideration of the protection of their rights so as to remove chaos and instability in the society.

Access to justice to the people is an extension of the consideration on the part of state to safeguard rights of the people against each other as well as against its own violation.

Providing access to justice becomes the primary duty of state as it is the guardian of the Human rights of its own people as well as people in its territory (e.g. refugees and asylum seeker). Access to justice by the people guarantees the protection of their rights and serves as the only remedy against the state and other violators of their rights.

The Access to justice is meant not only for the citizens of a state but to the non- citizens (refugees, asylum seeker, illegal migrants etc.) so as to uphold the principles of UDHR and establish international peace, security and justice.

Access to justice under Kenyan constitution:

Access to justice under the recent Kenyan constitution, 2010- the Kenyan constitution is a modern day welfare constitution which envisages the protection of the rights of an individual with a great deal of emphasis on the right to access to justice as a fundamental right so as to avoid injustice to any section of the society. The constitution has also empowered the chief justice to frame rules in order to provide every person- the right to access to court sand seek enforcement of their rights.

The constitution ensures that there are no factors that impede access to justice by ensuring that no fees are charged for commencing proceedings, removing strict legal requirement of providing locus standi, minimizing procedural formalities, acceptance of the informal documentation so as to maintain right to access justice as one of the important priorities of the constitution. The constitution also expressly provides the right to access to justice against administrative action before administrative bodies which expands its scope from access to courts to administrative bodies too.

But under its criminal justice system, the access to justice for an accused becomes conditional as is provided in the matters where substantial justice would result otherwise which is inclined towards the presumption of the accused to be guilty until proved innocent.

The constitution recognizes the ADR and other traditional dispute resolution mechanisms so as reduce burden of judiciary and opt for a less time consuming mechanism in accessing justice.

The indicators in analysing the progress of the access to justice are in consonance with modern credentials and indicators which are broadly interpreted to meet the most fundamental need of the society.

(http://www.kmco.co.ke/attachments/article/110/A%20Paper%20on%20Improving%20Access%20to%20Justice%202.pdf)

Access to justice in Morocco:

The 2004 revision of the Moroccan personal status code or Moudawana has been termed as one of the most legal reforms in the Islamic world.

The reform elevates the status of women, limits some rights men had over women, and grants women more affirmative rights in their affairs.” The reform includes a restriction on polygamy under certain circumstances (including when a wife inserts a monogamy clause in her marriage contract) and an increase in the minimum age for women to marry to 18 (same as for men), up from the minimum age of 15, although judges retain discretion to reduce the age under certain circumstances, and more as documented in the literature.

But the government failed to provide basic legal awareness to the people (especially women, children, rural people and disabled) about their basic rights with the high percentage of illiteracy, lack of infrastructure and roads connecting rural to urban areas which implies the limited scope of the concept of access to justice in its legal framework.

The provisions of the 2011 constitution to better guarantee and protect economic, social and cultural rights especially to marginalized and disadvantage sectors of the Moroccan society but the discrimination in accessing the justice against women in areas that are fundamental to ESCR, such as inheritance, or family law are regressive in nature.

The indicators of analysing the scope of justice remain narrow under the Moroccan laws discriminating on the basis of gender and but it has also limited the access to civil and political rights leaving aside economic, social and cultural rights.

The inaccessibility of judicial remedies for victims of violations of ESCR for procedural reasons, and the weakness of sanctions in certain cases of abuses of ESCR (for ex. in labour matters) is another area of concern.

(http://www.icj.org/new-icj-study-on-access-to-justice-for-economic-social-and-cultural-rights-in-morocco/)

(http://www.moroccoboard.com/viewpoint-5/380-norman-greene/5475-panel-examines-access-to-justice-in-the-middle-east-and-north-africa-before-and-after-the-arab-spring-reforms-to-date-reforms-to-come)

The indicators to observe the right of access to justice in Mediterranean partner countries (Algeria, Israel, Jordan, Morocco, Palestinian Authority and Tunisia) are as follows:

Access to legal information through published legal information:

Is legal information published easily accessible to public Algeria

Yes

Israel

yes

Jordan

yes

Morocco

yes

Palestine

Yes

Tunisia

yes

…… legal documents (codes, laws, regulations, etc.) Y y y y Y y
…case law of high courts N Y N Y Y Y
..case law of lower courts Y Y Y Y Y Y
             

Free legal information published on official Internet websites:

Do free official internet websites provide public with access to legal information? Algeria

Y

Israel

Y

Jordan

Y

Morocco

Y

Palestine

Y

Tunisia

Y

..Legal documents, codes regulations .etc. Y Y Y Y Y Y
..case laws of high courts N N N Y Y Y
Case law of lower courts Y N Y Y Y Y
             

Existence of charter of litigant’s rights and obligations:

Algeria Y
Israel Y
Jordan Y
Morocco Y
Palestine N
Tunisia     Y  
         

Existence of specific information available to public free of charge, to provide information and support for victims of offences:

Algeria Y
Israel N
Jordan Y
Morocco N
Palestine Y
Tunisia N

Existence of information specifically adapted to a variety of situations:

Countries Algeria Israel Jordan Morocco Palestine Tunisia
Cases of domestic violence N Y Y Y N Y
Cases of minor at risk N Y Y Y N Y
Divorce cases N Y N Y N N
Places of detention N Y Y N N Y

Number of tribunals and courts of appeal meeting the criteria proposed for access to legal information:

  Algeria Israel Jordan Morocco Palestine Tunisia
Do the courts have an information centres to attend visitors?

 

100% 100% 51-90% 11– 50% 0% More than 90%
Within the courts can the public and litigants find staff responsible for reception that have been specially trained to explain working methods, rules of procedure and other practical information? 11-50% 51-90% More than 90% 11-50% 51-90% 51-90%
Is there an up-dated list of lawyers available at the reception desk of courts or on their Internet site? 100% 0% 0% 100% 100% More than 90%
Are there information brochures available for litigants received by the courts? 11 to 50% 0%   51-90% 0% More than 90%

In Algeria, since 2008, a DVD including around forty sketches, in colloquial Arabic, shows procedures and other practical information, has been available to those receiving and attending to citizens, so that they can be prepared and possibly, if requested, project the film corresponding to the question asked. In certain courts, this film is directly accessible to the public via a computer screen. Other DVDs adapted to the deaf and those with difficulty in understanding are also available at reception and attendance services.

The other indictors which reflect the position of the right of access to justice are:

  • Number of tribunals and courts of appeal meeting the criteria proposed for access to court information.
  • Legal costs are covered or exonerated by legal aid.
  • The grounds considered by state for granting legal aid.
  • Nature of the authority granting or refusing legal aid.
  • Right of bar associations to organise pro bono practices.
  • Implementation of pro bono practices by the combined efforts of state and bar.
  • Existence of private insurance schemes for legal protection.
  • Existence of class action schemes.
  • Cost of the proceedings taken into consideration by the judge for the litigating parties
  • Transparency and predictability of lawyers’ fees for litigants.
  • Method used to regulate lawyers’ fees.
  • Possibility for the judge to decide on the division of the costs of justice among the parties in litigation.
  • Number of tribunals and courts of appeal meeting the criteria proposed for physical access to these places.
  • Existence of legal mediation.
  • Legislation on judicial mediation.
  • Possibility of legal aid within the framework of the mediation process.
  • Demand for a contribution to be made by parties benefiting from legal aid in a mediation procedure.
  • Cost of a mediation procedure compared to a traditional procedure (without legal aid).
  • Existence of a mechanism guaranteeing the quality of mediation services.
  • Equipment available in the courts for hearing litigants and witnesses by video-conferencing.
  • Hearing room, wide angle camera at ceiling.
  • Right of the litigant to be present or represented throughout the proceedings.
  • Existence of a monopoly of lawyers for legal representation.
  • Possibility of being represented by an association or a syndicate in the absence of a monopoly of lawyers.
  • Number of tribunals and courts of appeal meeting the criteria proposed for quality of reception in these places.
  • Existence of fast-track procedures for urgent matters.
  • Possibility of an agreement between the court and the lawyers of parties in the mode of handling matters (date for submitting documents, deadline established for closure, booking dates for hearings, etc.
  • Number of new cases per 100,000 inhabitants compared to the rate of variation of the number of pending cases.
  • Formalities to be adopted in presenting the decision of the court in general courts.
  • Number of interpreters or translators accredited as judiciary specialists.
  • Number of interpreters (or accredited translators) as judicial experts per judge.
  • Simplification, to the benefit of those vulnerable, of conditions required for certain acts.
  • Existence of forms easy to use for those who are vulnerable so as to help them with procedural measures (when representation is not obligatory).
  • Possibility of discussing proof in advance to avoid a later hearing becoming impossible due to an illness or handicap becoming worse.
  • Possibility of recording statements made by those who are vulnerable, using audio-visual means.

(http://euromed-justiceii.eu/files/site/English_book_Study_Access_to_Justice.pdf)

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