UNITED NATIONS DEVELOPMENT PROGRAMME
PROGRAMMING JUSTICE - ACCESS FOR ALL
THE ACCESS TO JUSTICE PRACTITIONERS' GUIDE
The Hon Justice Michael Kirby AC CMG*
I like this book. It aims to help officials, aid agencies, civil society organisations and judges and lawyers to fulfil the true purposes of law.
The book has grown out of the fine objectives of the United Nations Development Programme (UNDP). I honour UNDP and the officers who work within it. Truly, they participate in an agency that takes seriously the fundamental purposes of the United Nations Organisation, declared in the Charter. From the start, the United Nations has been founded on the tripartite principles of attaining peace and security; upholding human rights and fundamental freedoms; and promoting economic equity and justice. The subjects of this book are important for the promotion of these objectives. Attaining them is essential to building a better, safer and more equitable world.
I have seen UNDP at work in the post-conflict situation in Cambodia; in the changeover to multi-party democracy in Malawi; and in a myriad of programmes in many other lands. The people of the world thirst for real justice and not just words and shibboleths. This book is aimed at responding to that thirst. It has taken a practical, simple and hands-on approach.
At the threshold there is a fundamental problem in preparing a book such as this. It must be capable of being used in many lands, specially in the Asia/Pacific region. Yet the diversity of legal systems, the sharply differing institutions and rules of law, the disparate cultures, religions and values and the divergent traditions of the respective judiciaries and legal professions to whom the book is addressed make it difficult to state general rules.
For instance, in the opening of the book, reference is made to a hierarchy in which constitutional and international law are placed above the ordinary rules of national and local law and the common law. Yet in many countries, including within the Asia/Pacific region, international law remains a poor cousin of the established national legal systems. The dualist theory still tends to banish international law to the periphery of practical concerns. Even where there is a fundamental conflict between national (including constitutional) law and the international law of human rights, it may be the duty of local judges and lawyers to uphold the national law.
This problem arose recently in my own court in Australia. It appeared fairly clear that a federal law that required automatic detention of infant aliens who arrived or stayed in Australia without proper visas, was in conflict with international law, including provisions of the Convention on the Rights of the Child. Yet because the national law was held to be clear and within the constitutional powers of the Australian federal Parliament, it was upheld. It had to be obeyed within Australia. The most that the court could do was to call attention to the disparity between Australian law and the country's international obligations under international law.
Nowadays, communications about such disparities can often be taken by those affected to regional or international human rights courts or other bodies. National courts will commonly try to avoid, or reduce, such disparities. The influence of international law upon national law is increasing all the time. Even in the sphere of constitutional law, the Supreme Court of the United States, in a legal culture traditionally isolationist, has been looking closely and beneficially at the international law of human rights to cast light on the meaning of the American Constitution. So this is an age of transition in the law. But the tension between the two worlds cannot be brushed aside by judges and lawyers. The rule of law means that judges and lawyers must uphold the governing law, once it is ascertained.
I like the fact that this book inserts in its text practical examples from many countries to illustrate its themes. Thus, there are notes on pertinent developments in Bangladesh, Cambodia, Nepal, the Philippines, India, Timor Leste and Vietnam. Concrete illustrations will help readers and users of this book to view their problems in context and to take heart from instances where the justice system has been improved.
I also like the fact that the book is strong on practical measures for translating the aspirations of international human rights law into practical means of assuring access to justice for all people. Thus, there are useful notes on expanding alternative dispute resolution; on promoting the use of information technology in court registries; on coordinating the initiatives of donor agencies; on helping in judicial training in ways that respect the independence of the judges from propaganda; on tackling corruption; on promoting public interest litigation; and on teaching people about their rights and how they can use the courts to repair violations and to promote the entitlements of the vulnerable.
There are also useful chapters on particular groups who need added help to turn the legal system into an instrument of justice. These include women; indigenous peoples; immigrants and displaced persons; people living with HIV and AIDS; and people with physical and mental disabilities. Yet these groups do not exhaust the classifications of human beings who often miss out in protection of their rights within the legal order. Other such groups include illiterate persons; religious minorities; injecting drug users; prisoners and detainees; homosexuals and other sexual minorities; and commercial sex workers.
The principle of "equal justice under law", carved into stone over many a courthouse, needs to be translated into action in our world. And we have to realise that gaining real access for all to the justice system is only the beginning of the attainment of justice. Thus, many people who, after a struggle, obtain access to courts, find indifference to their concerns; lack of sympathy for their vulnerability; antagonism to their claim of rights. Or they find that the law is completely out of date, with no reform mechanism to improve it and no real interest to repair its injustices and inefficiencies. Sadly, it is in such circumstances that corruption breeds; because corruption is all too often the solution that economics provides to remedy outdated, unjust and inefficient laws. We do not cure corruption only by imposing big punishments. We must tackle the inflexibilities of the justice system with precisely the same energy with which we endeavour to promote access to it.
I welcome the instruction of this book to its readers never to lose sight of the big picture; always to encourage participation of affected groups; to attend to minorities; and to promote institutional change. Sixty years ago, a great Australian Chief Justice, Sir John Latham, said that it was comparatively easy for legal systems to uphold the rights of majorities and the powerful. The real test comes when they are asked to protect the vulnerable, minorities and the weak. This remains true today. This practical book suggests ways in which judges and other actors can rise to the challenge. Doing so, they will bring to bear that happy blend of idealism and practicality that is the hallmark of a justice system worthy of that noble name.
18 March 2005
High Court of Australia
(*) Justice of the High Court of Australia. One-time President of the International Commission of Jurists.