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The Nation: Justice is not only le
- Subject: The Nation: Justice is not only le
- From: suriya@xxxxxxxxxxxx
- Date: Thu, 05 Mar 1998 21:01:00
Editorial & Opinion
Justice is not only legal
remedies
The second Asia-Europe Meeting (Asem)
will take place in the United Kingdom next
month. While economic and political issues
will no doubt be primordial, to what extent
will ''justice'' issues be raised? A key
component of the latter is the issue of
access to justice in the two regions.
While the notion of access to justice is often
associated with access to the courts and
legal remedies, this is incomplete. When
tested against the political,
socio-economic, cultural and other
backgrounds of both the Asian and
European regions, a variety of concerns
arise. They include the following:
- Access to justice in the political field
This is closely associated with peace,
democratisation and the right of
self-determination, particularly to choose
one's political system and government.
While there has been great headway made
since the end of the Second World War --
particularly with the decolonisation process,
the end of the Cold War, countries with
economies in transition opting for
democratic government in place of
authoritarian rule, and the advent of peace
in many countries -- authoritarianism and
armed conflicts are still ever-present in
some countries.
Even where ''juntas'' do not exist formally,
there may be certain practices among
governments of the one-party or
near-one-party kind that are undemocratic,
such as the silencing of opponents via
arbitrary means and the dampening of
multi-party rule.
Experience has shown that some
governments are quite willing to use some
ex-colonial instruments such as strict
national security laws (as exemplified by
internal security legislation) even in the
post-colonial era when they are supposedly
aspiring to be free from colonisation and
authoritarianism.
Even where juntas or the uni-party system
do not exist, there may be a tendency
among some governments to centralise
rather than decentralise and devolve
decision-making power to the localities in
the pursuit of broad-based people's
participation.
- Access to justice in the socio-economic
field
This is clearly linked with the term ''social
justice'' and ''equity'', implying that the need
to share resources more fairly among the
mass base of the population. In this
respect, it is clear that while several
countries pride themselves on their record
macro-economic growth (at least until the
recent downturn), that growth has tended to
benefit the few rather than the many, and is
thus illusory.
Ten per cent GDP growth has not meant
and does not mean that the poor become
automatically 10 per cent richer; the
converse may actually be true -- they might
be 10 per cent poorer due to the top-down,
hierarchical system that fails to share the
benefits of national growth. These countries
are also weak in terms of land
redistribution, and their tax base tends to
favour the rich rather than the poor.
- Access to justice in the cultural field
Many societies are still faced with a
pervasive paternalism based upon
ingrained cultural practices. This may lead
to the subservient status of women and
children, compounded by age-old
discrimination. Children in some settings
are still being regarded or treated as
chattel or property of parents to be dealt
with at the whim of the parents. Meanwhile,
violence against women and children is
pervasive in both developing and
developed countries.
On another front, minorities and indigenous
peoples are often discriminated against in
terms of language, code of dress and
access to power and resources, especially
land. Migrant workers are subjected to a
variety of violations in the new societies to
which they have been transported, including
poor employment conditions and
discrimination. Access to justice in this field
demands an appraisal of the cultural
practices of all groups to ensure that they
do not violate the international standards of
human rights.
- Access to justice in the legal field
This entails access to the legal and judicial
process and institutions. A key concern is
access to the courts and the independence
of the judiciary, coupled with safeguards for
the rights of all parties appearing before the
courts and a people-based constitution.
These components are encapsulated by
the term ''rule of law''.
However, the expectations should be
broader. They require that the legal process
and the courts to be more geographically
and financially within the reach of the poor
and distant communities. Hence, the need
for quicker, cheaper and more
decentralised and mobile courts, coupled
with affordable services and legal aid and
assistance for those in need. They indicate
the urgency for judicial and legal personnel
to be trained to become more
gender-sensitive and child-sensitive.
They call for not only independence of the
judiciary but also a transparent and
accountable judiciary. Clearly at stake in
some settings is corruption among law
enforcers, including police and judges, and
how to eradicate it. The public demands a
more quality-based recruitment process,
incentives for good law enforcers and
sanctions against corrupt law enforcers.
The door should be open to monitoring of
the law enforcers by civil actors such as
NGOs and community watchdogs.
This also calls into play the need for more
access by ordinary people to help
administer the judicial and legal process.
This is exemplified by lay magistrates or
judges and juries drawn from the public in
some countries. It also implies the need for
an alternative dispute settlement, such as
arbitration and mediation, whereby informal
processes can also be used in addition to
the formal processes such as the courts,
especially as the former are often faster
than the latter.
- Access to justice in the environmental field
A new phenomenon which has come to the
fore in the past decade is the call for justice
in the environmental field. The affected
people should be consulted before projects
affecting the environment are finalised
whether at the international or national level.
This is much linked with the call for public
hearings and inquiries prior to the
decision-making concerning the
environment.
Justice, in this respect, will also mean
safeguards against abuses by
power-groups that claim to act in the public
benefit but which are acting for their own
benefit. Ultimately, when individuals and
communities are affected by the negative
consequences of projects, such as
displacements, they need to be
compensated and to be helped to adapt to
new environments and/or livelihoods.
There is also a call to appreciate
environmental concerns not only from the
perspective of this generation but also
ensuing generations: in the
intergenerational context, we must act
wisely as trustees of the environment for the
children and those generations not yet born.
Thai wisdom advocates respect for the
lives of animals and others who share our
ecosystem.
Vitit Muntarbhorn is a professor at the
faculty of law, Chulalongkorn University.
This article is the second in a series on
''Asem, justice and human rights''. He is
author of a forthcoming publication ''Asem
Summitry''.