chapter  11
28 Pages

Conclusion and reflections

ByYASH GHAI, JILL COTTRELL

Even if equal access to justice is the primary virtue of the rule of law (and the principal source of its legitimacy), it is clear that a great majority of people do not enjoy it. Money, knowledge, connections and disparate degrees of familiarity with the ways of the state and economy, ensure that access remains unequal. The subject of this study, communities marginalized by history, social structure, gender, ethnicity, class or ideology, are excluded most of all from the benefits of a modern system of justice; they are indeed its victims. The preceding chapters have touched on a number of factors which result in the denial of equal access to justice, even defined in the narrow sense of being able to reach a court, secure legal representation, have a fair hearing and the impartial application of the law, and the enforcement of a decision favorable to them. The principal cause is their ignorance of the law and the ways in which it could protect them against exploitation, violations of their rights and expropriations of their property and labor. Even if there is some awareness of the benefits of the legal system, they are too intimidated by its formalism and at least to them, its arcane rules and procedures, that they can never be more than mere spectators, however deeply the matter before the court concerns their welfare, rights or dignity. They are unable to identify lawyers who might help them, and few of them can afford the expenses of legal action and trials. Often neither lawyers nor courts may be within easy reach. There are likely to be few lawyers or judges from their own community, with whom they might have some rapport, who can understand their circumstances and whom they can trust. They may be unable to understand the language in which the proceedings of the court are conducted, and are often without facilities for translation. They may fear that they would lose control over the matter once it is processed through the state legal system. Even more fundamentally, there is deep mistrust of the state and its legal

system. The law they encounter may be alien to them, reflecting different values and procedures from the customary ways in which they held property or settled disputes. They have little confidence that judges will hear their side

of the story, and they may have in the past sensed hostility from the courts. The kind of evidence they can produce to support their assertions may not satisfy the formal rules of the admissibility of evidence. They may have heard stories of corrupt judges. They know that litigation is a long-drawn affair. Some of them may have faced threats or reprisals were they to approach state officials or lawyers with complaints against the wealthy. Or they may be discouraged from going to courts by members of their own community, who may prefer that complaints be settled within the community. Encounters with the state in the past resulted in deprivation of property or rights; they may perceive their security now in distance from the formal system. All these statements are supported by the narratives told in this book. For a

variety of reasons (mentioned in the first chapter), states, often with the support or even pressure of the international community, are beginning to address obstacles to equal access to justice. There is also increasing recognition that some communities (and not merely individuals) suffer discrimination and other difficulties in the pursuit of justice under the state system. The case studies in this volume focus on two aspects: the community as party to litigation and other strategies to secure justice, and the community as the forum for dispensing justice, what we call community justice. We therefore begin the comparison of the case studies in this volume by a brief discussion of the nature of these communities.