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The Nation: Justice is not only le



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''.