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Key Text Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs

Author: M R Anderson
Date: 2003
Size: 36 pages (112 KB)

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Summary

How can it be ensured that the poor are protected by the law in the same way that the rich are? What factors deter the poor from using the legal system?

This paper examines the issues surrounding the judicial and legal systems in developing countries. It questions the claim that the rule of law helps to alleviate poverty. It also recognises that it is often the poor that are most vulnerable to being abused politically and unable to protect themselves against the injury and economic loss associated with such abuse. Elsewhere, the author argues that poverty remains a problem partly due to the powerlessness of the poor in existing political and social structures. The report also states that abuses of political power, which are not investigated, can undermine growth in a country.

There are a number of ways in which lawlessness contributes to poverty and disempowerment. These include: Unchecked abuses of political power; unchecked violence by police, prison officers and other public officials; regular payment by the poor for public goods and basic services to ensure access; and risk of losing property to either public or private theft, which is greater amongst the poor.

The poor are marginalised in the legal system as a result of:

The failure of the judicial system to enforce political accountability (due either to the constitution, legislation or the lack of judicial independence)
The lack of financial resources and ability to understand and use the system
Reluctance to use the law, often due to living in illegality, possessing a mistrust of the law, the existence of alien legal idioms and formalities
Lack of participation in civil society groups struggling for human rights.

Problems within the judicial system need to be addressed. Processes need to be utilised more efficiently in order to provide protection and redress against abuses of power by state agencies. Some suggestions for reform include:

Eradicating laws with a recognisable anti-poor agenda
Improving access to the legal system for individuals and NGOs acting in the public interest. Public interest and class action litigation has been successful in countries where the law allows it, such as India, Pakistan, Bangladesh, South Africa, Brazil and the Philippines
Reducing legal technicalities and simplifying legal jargon
Initiatives to increase legal literacy among the poor
Using international standards in national courts
Judicial training and support
Support for law-movements
Mobilising the media and NGOs to monitor the implementation of court decisions.

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Source: Anderson, M. 2003, 'Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs', IDS Working Paper 178, Institute of Development Studies.
Author: Michael Anderson , m-anderson@dfid.gov.uk
The British Institute of International and Comparative Law, http://www.biicl.org/