Who do we ensure inclusive legal and judicial reforms? Photograph: Stephen Hird/Reuters
The phrase 'justice for all' is one of those terms regularly used by the development community, but not one we often stop to consider what it actually means and what achieving it would entail. Demanding change – from granting minorities the same right as majorities, to creating sensitive and compassionate court environments for victims and preventing the stigmatisation of the sick or disabled – justice for all is always easier said than done.
The reality is that both access to and quality of justice are major rule of law challenges. Over the past five years (2008-12), almost all the member states of the UN have taken part in the review of their human rights record at the United Nations human rights council in Geneva. Thisuniversal periodic review reveals that there are three important issues that hold back advances in the rule of law and justice:
Inconsistency between the law and what happens in real life: Lack of trust and confidence in the formal legal system is a pervasive issue for people in marginalised or disadvantaged groups. They often have grievances (such as systematic economic deprivation, forced eviction, rape, torture) that they do not feel empowered to address through the legal system, particularly where laws do not provide specific protection.
Formal justice systems have not reached out to the most disadvantaged people: They are largely not unable to access those systems. Where legal ways to access justice do exist, they are usually not used by disadvantaged groups due to distrust, alienation and lack of knowledge.
The slow pace of traditional reform is inadequate: Despite the modernisation of public institutions and the establishment of market economies, two formidable governance and rule of law challenges remain across many parts of the world. Weak political interest in further reform, which is a reflection of inadequate efforts to promote inclusive citizenship, afford protection to refugees and asylum seekers, and empower the excluded; and inadequate state capacity to implement reforms, deliver public services and ensure that powerful elites and duty bearers are accountable to taxpayers and constituencies.
Beyond governance flaws, the ability of a state to respect the rights of its citizens is reflected by the cultures and norms of that society. For example, gender-based discrimination is embedded in the laws of many countries. A World Bank-sponsored review of laws in Nepal identified 54 laws that discriminate against women. These include laws that prohibit transfer of the mother's citizenship to children (making married daughters ineligible to inherit property) and requiring a husband's consent for women's admission to certain educational institutions. And this is not unique to Nepal.
The challenge for justice systems at the national level is therefore, to address legitimate grievances of people who need legal protection the most. A more recent UNDP study – Strengthening judicial integrity through enhanced access to justice – (unpublished) shows that the main barriers for enhanced access to justice for women, persons with disabilities, and minorities are widespread poverty and public prejudice, low education of the target groups and lack of legal literacy. However, the most significant obstacles in accessing the courts are costs and duration of proceedings. Additionally, judges, lawyers and court staff lack sufficient awareness and knowledge about the specific needs of these groups and communities. They need more training and awareness to serve the actual needs. We are yet to harness the full potentials of innovative technologies and social media in the justice and governance systems.