Luận văn the rights of access to justiceundp s approach and vietnamese perspective

226 Civil Socicty and Parliamentary Oversight THE RIGHT TO ACCESS TO JUSTICE IN VIETNAM: ANALYSIS FROM UNDP’S APPROACIL An overview of the Vietnamese legal system related to ensuring t

VIETNAM NATIONAT UNIVERSITY

SCHOOL OF LAW

TRAN THI ANH HONG

THE RIGHTS OF ACCESS TO JUSTICE:

UNDP'S APPROACH AND VIETNAMESE PERSPECTIVE

MASTER THESIS

HA NOT - 2020

VIETNAM NATIONAT UNIVERSITY

SCHOOL OF LAW

TRAN THI ANH HONG

THE RIGHTS OF ACCESS TO JUSTICE:

UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE

Spccialized in Law on human rights

STUDENT DECLARATION

1, Tran Thi Anh Hong, declare that this Master thesis ts my work

The figures, references, and examples are accuracy, honesty

Student

Tran Thi Ánh Hong

ACKNOWLEDGEMENTS

With great joy have | written this thesis, but [ could not have done it all

by myself Special thanks to A/Prof Vu Cong Giao, I could not wish a better instructor, who always by my side inspires me “do not give up, do not give up”

His willingness to help students, have face-to-face meetings for discussions

with cvery step of my research, has helped me complete my thesis

Special thanks also to the School of Law, where we are always welcome Thank you, the Government of Australia, that has sponsored the postgraduate

program of human rights, supporting us the diversity of loaning matonals and

seminars relating to human rights

At last, but certainly not least, my family and friends, who always encourage

me to move on

STUDENT

Tran Thi Anh Hong

TABLE OF CONTENTS

Student declaration

Acknowledgements

Table of abbreviations

List of figures and tables

CILAPTER 1: TIIEORETICAL ASPECTS OF TIE RIGIIT TO

Conception of the Right to Access to Justice

Characteristic and connotation of the Right to Access to Justice Mcthods to ensure the Right to Access to Justice

The Role of the Right to Access to Justice : The Right tu Access tu Justice in International Law

An overview of the Right to Access to Justice from

226 Civil Socicty and Parliamentary Oversight

THE RIGHT TO ACCESS TO JUSTICE IN VIETNAM:

ANALYSIS FROM UNDP’S APPROACIL

An overview of the Vietnamese legal system related to ensuring

the right to access to justice

Elements that ensure the right to access to justice in Victnamese

law: Analysis from UNDP?s approach

Solutions to ensure the right to access to justice in Victnam

Intemational Covenant on Kconomic, Social and Cultural Rights

Information and communications technology

Multiple Action Research Group’s

Millennium Development Goals

Millennium Declaration Goals

Non-government organizations

‘National human rights institutions

Organvation for Economic Cacperation and Development

Sustainable Development Goals

Swedish Intemational Development Couperation Organisation

Universal Declaration of Human Righls

United Nations Children’s Fund

United Nations Office on Drugs and Crime

World Justice Program

Table 3.1

Figure 3.1

Figure 3.2:

Figure 3.3:

LIST OF FIGURES AND TABLES

Public opinion about local governance

Social group analysis, guarantee of (undamental rights

Vietnam's factor scores in WJP 2020

Vietnam’s disaggregated scores for each of the sub-factors

PREFACE

1 The urgency of the rescarch topic

If people break their arms, they probably ga lo a hospital If they have a persistent cough, they might go to a doctor or a medical clinic However, if

they have a legal issue, such as an inheritance dispute, or a land dispute; in

those cases, where people can solve their problem and how people ean alford

the services they need? Access to justice can help us answer that question A\ccess to justice is commonly known as the ability to use the legal system to

plan their lives and resolve disputes

Tustice is a concept that appears very early in human history, which exists in most human civilizations, ethnic traditions, and considers in various

angles and aspects Access to justice is a fundamental human right and an

indispensable tool to protect other human rights Justice and access to justice

are essential for a fair socicty, which is the necessary condition for people to achieve freedom and happiness, so ensuring access to justice is also the top

task of each country

The feudal society of Vietnam recognized people’s aspirations about

the nght and justice by criticizing injustice, criticizing social equality,

condemming the bad habils of the stale machine The aspiralion to bum a true justice of the Vietnamese people was also shown at the “Judgment of the

French Colonial Regime” by Ho Chi Minh: “In Indochina, there are two types

of justice One for the French, one for the native The French are judged as in

Hrance The Annamese have no jury, nor an Annamese lawyer Usually, the Judge hears the judgment and verdicts the verdict in the absence of the

defendant, If the Annam and the French get a lawsuit, the French are always

right, even though this guy robs or kills people” with the exposing the male's trial to the south (mo jury council, no attorney, no accused, etc.) When

claiming justice to the colonial countries in Indechina mentioned above, he also asserted: “The justice of the people of Vietnam is independent and free”

International law notes access to justice is both - a fundamental right and a tool to protect other human rights In a sense being a fundamental human right, access to justice is regulated in the national legal system, tied to

the personal demands of judicial remedies for the violation of rights in that country's jurisdiction With the meaning of a tool to protect other human rights, access to justice is an essential solution for individuals to have the

opportunity to protect their nghts

Access 1o justice becomes a key goal in the mission of UNDP Lo alleviate poverty, resolve conilicts, and strengthen state governance UNDP emphasizes the need to focus on the ability la seck and provide remedial mcasures Lor injustice, especially for poor and disadvantaged peuple, including women, children, ethnic

minorities, people living with II[V/AIDS and disabilities

In the contexts of COVID 19, the economic fallout of the crisis will

pul many groups in society further behind The impact of the crisis as well as

the legal and policy responses developed by states to counter the spread of

COVID-19 have much wider ramifications that affect a broad range of human rights, including the ability of people to access justice in a timely, fair, and effective manner The crisis also presents specific justice ‘needs’, such as addressing the rise m gender - based violence and making additional institutional reforms to strengthen the effectiveness of the justice chain in a radically

shifted social context [32]

In Vietnam, justice is a crucial goal of socialism, so justice and justice

access requirements arc as urgent as the foundation of idcalism and direction

for all social policies Ilowever, Vietnam has not yet had many research

Ww

arguments regarding acccss Lo justice and the compatibility between Vicinamese law and intemalional law in ensuring access to justice So the author boldly took the topic “The Rights of Access to Justice: UNDP's Approach and Vietnamese

Perspective” as a master of jurisprudence specialized in law on human rights

2 Litcrature review

Access to justice has received the interest of many scholars in the country and international organizations On the international presence, so far there has been many projects, intensive research, diversity, such as: UNDP’s

studies, UNICEF's, the World Bank’s, WJP or SIDA’s, etc

In Vietnam, many research works on justice and the right to access to

justice have been translated or published, substantially to the

- Justice: What's the right thing to do, Michale J.Sandel, translation of

Ho Dac Phuong, Tre Publishing House, 2015

- The Philosophy of law: A concise introduction, Raymond Wacks, translation of Pham Kieu Tung, Tri Thuc Publishing Iouse, 2011

- Implementing judicial rights to ensure access to justice in the state of law, Dinh The Ilung, Journal of State and Law, No 5/2010

- Bnsuring access to justice, the right to the legal assistance of persons with disabilities, Vietnam’s compatibility with international law, Tran Thai Duong, Jurisprudence Journal No 10/2014

- Strategies for judicial reform to protect justice in Vietnam, Nguyen

The Anh (2015), Master’s thesis, Law Faculty, Hanoi National University

- Justice and access to Justice, Hong, |Duc Publishing House

- Michacl J Sandel (2010), Justice: what's the right thing to do, Now York: Farrar, Straus and Giroux

- UNDP (2016), 2015 Justice Index: Towards a justice system for the peuple.

- UNDP (2013), Justice Index: Assessment of Disiributive Justice and Equality from a citizen— based survey in 2012

- UNDP (2004), Access to Justice, Practice note,

However, an the aspoct comparing the compatibility level of Victnam’s

access to justice with the viewpoint on access to justice of UNDP, there is no

comprehensive research in Vietnam, and the system on this topic is released

3 Research Objective and Tasks

3.1 Research Objective

Analysis of Access to Justice Approach of the UNDP and Vietnam’s perspective and assess Vietnamese law and international law’s compatibility

on access to justice The author proposed solutions to complete the assurance

of access to justice m Vietnam

3.2 Research Tasks

The thesis will address the following specilic tasks

First, clanly the theorclical issues of ae

ess Lo justice, the gencralivalion

of the characteristics, contents, roles, and methods of assurance of access to

justice, simultancously, consider the position of access to juslive in the international legal system of human rights

Secondly, the study clarified the factors that secured access to justice in

the UNDP perspective: legal protection, legal awareness, legal aid and

counsel, adjudication, enforcement, civil society, and parliamentary oversight

Third, the Vietnamese legal system's overview of ensuring access to

justice assesses the level of compatibility and protection of Vietnam with the

factors ensuring access to justice in UNDP’s opinion

Fourth, covering the existence and limitations of Vielnam conceming the factors that ensure access to justice in the UNIDP’s opinion, thereby

offering complete solutions

4, Research Subject and Scope

4.1 Research Subjects

The study was conducted on the theoretical issues of access ta justice,

the factors ensuring access to justice in UNDP’s opinion, the compatibility

level of the law of Vietnam for these factors

4.2, Research Scope

ss to justice is 4 gencral Lopie that necds to be res!

variety of fields At the subject, the thesis focuses on the access to justice in UNDP's opinion and the level of compatibility of Vietnamese law with the

factors thal cnsure access to justice in the opinion of UNDP

5 Research Methodology and Methods

Research Methodology

The thesis uses the methods of parenteral and the historical artifacts of

Marxism, in conjunction with specific methods such as analytical methods, comparisons, and interpretation ‘(he thesis uses the methods of parenteral and the historical artifacts of Marxism, in conjunction with specific methods such

as analytical methods, comparisons, and interpretation

3.2 Research Methods

‘The method of analysis synthesis is the method of the study of the

focus of the thesis, which combines the analysis of theurclical and practical

issues along with other methods of Marxism as the comparative method,

statistical method

Besides, the historical method is used al the thesis in the study, research, evaluation, comparison of the views on justice through materials collection, the

view of access lo juslive according to UNDP and Vietnam

Sources of data used are excerpted from assessment reports on UNDP’s

Justice Index, World Justice Projects, and the author’s social investigation

6 The contribution of this research

The thesis provides in-deep analyses of theoretical, legal, and practical

aspects of the right to access justice in Vietnam compared to the UNDP

approach, which promotes this critical right in practice in the country:

‘This thesis can be used to reference state agencies in the construction

and implementation of relevant legislation It can also be used as a reference for teaching activities, research in the School of Law, Hanoi National University, and other law schools in Vietnam

7 Thesis structure

- Chapter 1: ‘Theoretical aspects of the right to access to justice

- Chapter 2: The right to access to justice from UNDP’s approach

- Chapter 3: Situation and solutions to promote the right lo access Lo

Justice in Vietnam: Analysis from UNDP’s approach

CHIAPTERI THEORETICAL ASPECTS OF THE RIGHT TO

and respect for everyone's legitimate rights.”

Trom the dawn of human society, the general discussion of Justice is found in philosophy, sociology, politics, and the law’s study and application The concept of Justice is strengthened, renewed, and changed according to the length of human history

A Greece philosopher Socrates (470-399 BC) believed that it is better

to be unfairly treated than to commit unjust, and if you have committed a crime, condemned is much better than escape [36] Since heing writhed under insult or unendurable physical pam, we are still honest and guiltless people, but those who unfairly leat us are cvildocr, on the contrary, if we deliberately cause harm to others, we will be guilty, and others are honest Socrates explained: people who commit crimes like those who suffer from internal discases, are they better discovered by a doctor and then cut off the cure, or are they not dotccted or cured better? According lo Socrates, happy is not about heaping up a tremendous amount of money and honor repulation, but

caring about wisdom, truth, and the most remarkable improvement of the

soul, respecting Justice

Aristotle (384-322 BC), one of the most prominent political philosophers

in history, argued that Justice is about equal treatment with equal and unequal

people to those who are not equal, based on the difference in their status Ile

bcheved Justice was to give poople what they desorve In Aristotle's society, civil rights are reserved only for the upper classes: slaves and farmers are

forced to work due to their poor life For Aristotle, Justice is a matter of

choosing to give people a role that matches their virtues and positions

Therefore, he protected slavery because slavery was a social role that suitable

for some people

Immanuel Kant (1724 - 1804) supposed that justice is derived from an

imaginary social contract (or unrealistic social contract) [le believed: Basing

on a group of people to agree on a social contract or constitution in the past is

not enough to make that social contract or constitution fair so that existence

could only be an imaginative collective agreement In his view, a [air

conslilution aims Lo harmonize cach individual’s frecdom with the frecdom of

all others He wrote:

No onc has a righl io compe] me lo be happy in the peculiar way in which he may think of the well-being of other men, but everyone is

entitled to seek his own happiness in the way that seems to him best

if it does not infringe the liberty of others in striving after a similar

end for themselves

Unlike Aristotle, justice from Kant’s judgment requires us to protect

human rights for everyone, regardless of where they live or how much we

know them, simply because they are human - a rational being and, therefore,

worthy of respect lowever, the limit of Kant’s thought was that he did nat depict what this imaginary contract was, how the principle of justice made, and

how people reached an agreement on such an imaginary social contract Just

about two centuries later, John Rawls — an American political philosopher,

tried to answer them through his classic works: A Theory of Justice

John Rawls (1921-2002) stated: “Justice is the first virtue of social

institutions, as truth is of systems of thought” He said that there are two

principles of justice in the imaginary social contract ‘The first principle

guarantees the same fundamental freedom for all citizens, such as freedom of

speech and religion This principle is an inviolability founded on justice that

even the welfare of society cannot override The second principle relates to

social and economic equality It is that social and economic inequalities can be fair, as long as they are for the benefit of the least - disadvantaged members of

society [36]

Throughout the work of A Theory of Justice, John Rawls proved and

clarified his consistent notion: Justice as fairness He wrote:

For this reason, juslice denies that the loss of freedom [ur some is made right by a greater good shared by others Tt docs not allow that

the sacrifices imposed on a few outweighed by the larger sum of

advantages cnjoyed by many Therefore, in a just society, the liherties of equal citizenship are taken as settled; the right secured

by justice are not subject to political bargaining or the calculus of

social interests ]29 |

Nowadays, in exploring the process of judicial reform and innovation

in judicial aclivily in many countries, justice has three essential qualitative

factors directly related to human rights assurance First, the law court is where

a trial is conducted fairly with procedural regularity by an impartial judge

They ensure that governments cannol convicl sumcone or take away their

liberty unless they follow fair and just processes, and people can trust and

have confidence in the criminal justice system Sccond, access to justice is a

fundamental principle of the rule of law, sa it must bơ respocLcd and guarantcod

Justice delayed is justice denied ‘[hird, costs for access to justice must not be

prohibitive: restraint or obstruction should be in the way of accessing justice

by organizations and individuals

In brief, the concept of justice differs from time to time, is both subjective

(cach individual can have their foclings and assessments) and objective (guaranteed by the law) Although there is no unified understanding, justice can

be understood as social values and moral values widely recognized by society and law Juslice is fairness, that means, both rightness and goodness Justice

corrects individual behavior and regulates community and social relations

1.1.2, Conception of the Right ta Access to Justice

Ac

ss to justice is a fundamental nght Lhat mvolves an individual’s ability to protect their rights in conformity with human rights standards and

incorporates several fundamental rights such as the right to a fair trial

Similar to justice, it is nol easy to define precisely what access 10 justice

is The definition of access to justice also changes from time to time The words

“access to justice” are udmitiedly not easily defined However, they serve to

focus on the legal system's two primary purposes — the system by which

people may vindicate their nights or resolve their disputes under the general

auspices of the state [35]

United States lawyers said that access to justice is the right to have civil lawyers for all individuals Meanwhile, South African lawyers emphasize the

effectiveness of case law in protecting the less privileged people’s nights in

society Specialists at the UNDP Committee on Legal Protection for the Poor said that the right to access to justice is one of the four pillars of the poor’s

legal protection process The commiltes commented: Il is vitally essential tu

reform public institutions and remove legal and administrative barriers that

still prevent poor people from gaining their rights [62]

10

The narrowest conception of “access to justice” represents only the

formal ability to appear in court, overcoming barriers to accessing the justice

system It has its origins in liberal 18th and 19th-century states and refers to

an individual's logal right to litigate or defend While access to justice was considered a “natural right”, governments did not feel a positive obligation ta

protect it through affirmative action programs

The definition of access to justice engages the broader social context of

court systems It comes up with the criminal justice system, which is a

tradiuional point aboul access lo justice Starting in the 1960s, it focused on practicing law for the poor and the disadvantaged ‘Ihe goal was to provide legal representation to impoverished individuals who could not otherwise afford legal advice Traditionally, access to justice focuses on devising

institutional arrangements to exercise their rights within the existing justice

system It aimed to counteract the cosl, delay and complexity of the legal system, focus on protecting the rights of Uhe poor and the disadvantaged This

concept of access to justice forms the foundation for today’s legal aid and

poverty law climes The problem of access to justice is summarized as duc to that the poor lose cases, injustice either because they do not use justice or

because they do not know their rights, do not have money for an efficient

representation in courts by lawyers Generally, access to justice has

traditionally referred to a range of institutional arrangements to assure that people who lack the resources or other capacities to protect their legal rights

and solve their law-related problems have access to the justice system [30]

Today, the expansive view of access to justice includes not only one’s

abilily to access the courts and legal representation but also one’s ability la engage effectively with law enforcement officials and to make use of informal,

non-state justice mechanisms Civil society can provide the necessary support

Tour mdividuals and commumiics and olTer an clfeetive counterbalance to the

state’s powers and the private sector [55]

Access to justice is a fundamental right that generally guarantees every

person access to an independent and impartial process, and the opportunity to

receive a fair and just trial when that individual liberty or property is at stake

Tlowever, access to justice does not always involve judicial recourse but accessible, affordable, convenient, and effective redress or remedies ‘hat expansion seems to beyond equality of opportunity for underprivileged or

underrepresented litigants Instead, it aims to achieve equality of dimensions

‘The restorative justice movement has taken hold as a significant movement in

the justice system Restorative justice emphasizes dealing with the aftermath of crimes and resolving the issues that brought the offender into conflict with the law in a manner satisfactory to the victim, the community, and the offender

Accordingly access to juslice is nol only about the right lo access remedial measures by the judicial system, but also an approach to ensure

human rights, in particular, rights of vulnerable and marginalized groups It

shows a modem point of view, uscd more recently by nations, especially

international organizations

Trom a rights-based perspective, access to justice refers to the ability of

people from disadvantaged groups to prevent and evercome human poverty

by seeking and obtaining a remedy through formal and informal justice systems, for grievances following human rights principles and standards

However, access to justice is not always accompanied by justice

systems A survey on people’s perceptions of Justice in India taken by UNDP

showed that slum dwellers prioritized access to juslice concerning ecumomic issues In contrast, members of marginalized castes highlighted the social

dimensions of access, and indigenous minorities highlighted the political

dimension Therclore, the potential of formal and informal mechanisms to

provide people with a sense of “justice” in a particular situation depends on

the context and prejudice

According to UNDP, access to justice is also closely linked to paverty eduction since being poor and marginalized means deprived of choices,

opportunities, access to primary resources, and a voice in decision-making

Lack of access to justice limits the effectiveness of poverty reduction and

democratic governance programs by limiling participation, transparency, and

accountability [45, p.3]

The traditional point is only to consider access to justice as individuals’

ability to use legal services for their fairness However, the modern one thinks

access lo juslice’s goal is compensalion and remedy for injustices and damages that they suflered through formal and informal judicial mechanisms

following international human rights principles The transition to modem

access to justice rights comes from the conventional judicial system’s limitations in resolving conflicts of interest in society UNDP surveyed to show that the justice system is Lrequently weakened by

G) Long delays; prohibitive costs of using the system, lack of available and

affordable legal representation that is reliable and has integrity; abuse of authority

and power, resulling in unlawlul searches, seizures, detention, imprisonment,

weak enforcement of laws, implementation of orders, and decrees

Gi) Severe limitations in existing remedies are provided either by law

or in practice Most legal systems fail to provide preventive, timely, non- discriminatory, adequate, just, and deterrent remedies

Gii) Gender bias and other barriers in the law and legal system: inadequacies

in existing laws, sufficient disabilities, and low literacy levels

(Civ) Lack of de facto protection, especially for women, children, and

men in prisons or detention centers

(v) Lack oŸ adequatc inlormation abouL what is supposod lo cxisL under

the law, what prevails in practice, and limited widespread knowledge of rights

(vi) Lack of adequate legal aid systems

(vii) Limited public participation in reform programs

(viii) ‘The excessive number of laws

(ix) Formahstic and expensive legal procedures in criminal and civil liugation and administrative board procedures

(x) Avoidance of the legal system due to economic reasons, fear, or a sonse of the futility of purpose

Consequently, access to justice rights in modern ideas is understood as the

right to pursue compensation and remedy inequity or damage that individuals or

groups, especially the most vulnerable groups This new way can surmount the

limitations pointed out by UNDF by providing more effective guarantees for all

parties are in dispute or conflict situations, especially susceptible social groups can reach a fair solution

1.2 Characteristic and connotation of the Right to Access to tustice

Acecss to justice is a fundamental right in the human rights sysicm

Tlowever, unlike the remaining human rights, it has the following essential characteristics:

and

(i) The subject of access to Justice: the one who caused damag

who suffered from injustice

Access to justice is understood as the ability to achieve remedies for injustice or damage that individuals, especially vulnerable and marginalized

groups, have to bear Individuals or legal entities in any arca of social life can

cause these injustices or damages Accordingly, the owners of the right to

access lo justice include those who cause damage, injustice and those whe

suffer damage from injustice.

The subject of damsge or injusticc oŸ äcocss 10 juslice may be any person who suffers from the above injustices and damages The subjects of

damage and injustice often focus on vulnerable groups such as women,

children, the poor, the disabled, migrants, migrant workers, indigenous people, ethnic minorities, and war victims ‘hese are economically or politically or

socially disadvantaged groups, leading to a high risk of injustice, inequality, or

difficulty recognizing their rights Unlike some rights reserved only for citizens

such as the right to vote, to stand for election, the right to participate in state

management, the right lo access lo justice is a right [or everyone, including

citizens and foreigners, stateless persons, migrant workers, immigrants

The subject of damage and injustice in the right to access to justice may

be individuals, legal enlitics, agoncics, or organizations For oxample, in

practice, sometimes, the law has specific regulations, people know it, but the

enforcement agencies improperly handle it due to weakness or lack of responsibility leading Lo injustices and harm Lo the people

(ti) The object of access to justice: Individuals, legal entities, especially

disadvantaged groups in society such as women, children, people with

disabilities, LGBT, people with IITV/ AIDS

‘Iraditionally, those who violate rights are often government bodies

For example, a legal department intentionally makes it difficult to issue an

attorney certificate to a lawyer or does not allow him to reach his client is an act of infringing on access to justice

Generally speaking, the violator of the right to access to justice is not limited to the procedure-conducting agencies but may be any individual,

organization, or agency that damages others For example, residents of

commune A write a letter denouncing corrupt acts of the village-level organ

by mail, commune A post office deliberately conceals does not allow these

denunciations lo reach compcient authorilies, showing infringement of access to justice by this post ottice

(iit) Scope of influence

From the traditional perspective, access justice refers to the right to appear in court and have a fair trial, mainly in criminal proceedings Hence,

the sphere of impact is principally formal judicial institutions such as a court of

law, procuracy, and investigation agency On the contrary, the modem view

sees discrimination among groups of people in society as the origin of inequity

in accessing justice, leading to the focus on seeking compensation and remedy for injustices and By acknowledging the informal judicial system’s contribution,

this moder perspective recognizes that ensuring justice is by no means under

only the provisions of law, but also the relevant custom The sphere of mpact

from the modem point of view recognizes formal and informal judicial system’s

parlictpation

(iv) The circumstance of rights arises

Suppose other rights always exist and require the subjects to ensure that

they do nol violale other entities’ rights In thal case, the right to access justice only arises when acts infringe upon the legitimate rights and demands of any

person whose rights or freedoms are violated shall have an adequate remedy In

other words, access to justice is the right that arises when other human rights

are violated, demonstrating its role as a tool to protect other human rights

In terms of connotation in the traditional approach, access to justice is

associated with legal protection for each individual ‘This search for protection

is primarily limited to access to judicial system services to exercise certain

judicial rights The process of asking the courls ta execule justice is the process of accessing people’s justice ‘That process begins with the need for

justice and ends with a court judge Unlike the extremist-state, where justice

is in the hands of the arbitrary governor, justice comes to people by the supply

of gavernment, in the rule of law state, justice is the right of people and the

duty of states

Mcanwhilc, from a modem perspective, the implication of access to

justice extends to the non-judicial system, including the negotiation process to

make significant changes in the nule of law, affect the role of public institutions

and empower the disadvantaged groups can fight against inequality [33]

Ilenee, access to justice protects individuals and organizations from

damage and injustice caused by other human rights violations committed by other agencies, organizations, and individuals ‘This right arises when other

human rights are violated, acting as a tool to protect other human rights

1.3 Methods Lo ensure the Right to Access Lo Justice

Methods to ensure the right to access to justice include (i) Legal

protection, (11) Agency syslems involved in resolving disputes, and (iii) Legal

aid and counscl

(i) Legal protection

Rights and obligauons of cach individual participating in social relations are prescribed in a standard system of laws, practices, and customary

laws It is the first foundation to ensure the exercise of the right to access to

justice Only when there is a framework of logal rights and obligations will

people have grounds to seek compensation and remedy for injustices or the damage they face fairly and legally For example, prisoners must be humanely

treated during their detention, including not being tortured or cruelly treated,

and must have minimum human living conditions

If with the waditional approach, legal protection is limited to the application of state laws and regulations recorded in the legal documents, the

modem view of the right to access to justice recognizing both the role of the

adoption of informal sources such as customs or customary law, depending on the specific case and the flexible application of national laws and standards to

international standards [lowever, not all practices or customary laws are

applied to onsurc the right to acecss to justice Only those practices and customary laws that are in line with international human rights standards,

which bring convenience to parties to a dispute in seeking remedies and

remedying damages or injustices shall be considered a means to ensure the

right to access to justice Therefore, the state must review and select that

informa! law Lo meet the national legal system’s gaps

‘Yo have a robust legal protection framework, community leaders, social

organizations, and the entire population need to contribute to the state and the

governmont in selling this logal defense slandard of the protection framework

(ti) Agency systems involved in dispute settlement

The search for remedies is done through the formal justice system

(investigation agencics, prosecutors, courts, cle.), the informal justice system,

and oversight system (elected bodies, social organizations) Those systems

encompass many mechanisms of dillering degrees and [forms of formalily Degrees of formality vary concernmg legal or normative framework, state

recognition, appointment and interaction, control and accountability mechanisms,

and monitoring and supervision systems, including the maintenance of case

records and the implementation of referral procedures Each agency has different roles and functions in ensuring the right to access to justice in each

of these systems However, ultimately, these systems have the role of

realizing fair solutions for disputes under the legal protection mentioned

above Without these agencies, there is no guarantee of proper enforcement of

legal protection in practice

The formal justice system plays a crucial and fundamental role in

cnsuring the cquitable rcsolution of disputes beLween parties to the dispute In all countries, the law provides for procedures for resolving legal disputes The

formal justice system is the first step in handling severe disputes that informal

mechanisms cannot resolve Simultancously, it is the sccond step of resolving bitter disputes that can be solved by an informal mechanism However, that

process has not achieved a result

Although the world’s current trend is the increasing adoption of

unofficial mechanisms to resolve disputes, the number of disputes resolved by

the formal justice system remains high, much more than the informal judicial system As can be seen, the formal justice system still plays a crucial role in

ensuring access to justice

The inlormal justice system encompasses the resolution of disputes and

the regulation of conduct by adjudication, or the assistance of a neutral third

partly that is mot a part of the judiciary as established by law and whose substantive, the procedural, or structural foundation is not primarily based on

statutory law For example, customary courts or local courts are categorized as

the mformal justice system, bul are regulaled under spocilic legislation, have a state-determined procedure for appointments, and are attached to the judiciary

These courts seek to gain community legitimacy by roots in a history of justice

provision before the modem state’s existence or through ther claim to draw on

the local norms and customs of a specific locality of the country

When remedies are guaranteed by law or by customary norms, they are

called legal remedies Justice remedies are legal remedies that typically mvolve

a third party (the justice institution or mechanism) Tor instance, when an

employer gives an employee compensation in case of mappropriate dismissal, though he or she is giving a legal remedy, it is an economical remedy and not a

justice one However, if a justice institution's compensation decision or as a

result of its mediation, it becomes a justice remedy Informal justice system

deal with many cases that could have heen brought to formal court

Due to the inadequacies of dispute resolution through the formal

judiciary and the informal judiciary’s advantages, the application of mformal mechanisms to dispute resolution is increasingly common In many cases, it is

preferred Ilowever, the number of disputes resolved through the formal

justice system still accounts for an overwhelming proportion compared to the

informal judicial system’s number of cases, showing the incredibly important

role of the formal justice system in ensuring access Lo justice

(ili) Legal aid and counsel

To access justice, people need to have knowledge and understanding of

their rights and obligations and a mechanism to protect them However, in

reality, disadvantaged groups who have their rights violated are the ones with

the least chance to access the law, so legal aid and council are an elfeclive solution to support public access and cnsurc access lo justice for all,

especially vulnerable groups

According to UNODC, legal aid is understood as °lrcc, low-cost, legal or legal advice, assistance and/or representation for the nominated person” “Legal

aid” provides paralegal services in criminal, civil, and administrative matters for

the poor, marginalized, or in need of protection and superior legal protection to

exercise their rights Such assistance includes the provision of legal advice, representation in court or proceedings in the courts of other countries, assistance

with the preparation of written documents and applications for legal assistance,

mediation, assistance in defining governmental rules and procedures, along with

arange of other services [23, p.337]

As examples, according to a report of the Ministry of Justice of

Vietnam, after 08 years of implementing the Law on Legal Assistance in 2016

(om 2007 Ww 2015), the Legal Assistance Centers carricd out 1,055,294

cases, in which the number of legal proeocdings is 61,120, legal consultancy

is 982,442 Represenlalives outside the proceedings were 1,357 cases, 1,785

cases were reconciled, and other forms were 8,950 cases [4]

1.4 The Role of the Right to Access to Justice

Access to justice is a basic principle of the rule of law In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision - makers accountable [14]

‘The OHCHR has described the role of the right to access to justice

as follows:

Access to justice is a core element of the rule of law It is a fundamental

right m itscl and an essential prerequisite for the protection and promolion of all other human nghts Access to justice cneompasses

the right to a fair trial, including equal aceess to and equality before

the courts, and secking and obtaining just and timely remedies for

rights violations Guaranteeing access to justice is indispensable to

democratic governance and the rule of law as well as to combat

social and economic marginalization [40, p.3]

The UN General Assembly declared the importance of the right to access to Justice within the Rule of Law:

14 We emphasize the right of equal access to justice for all,

including members of vulnerable groups, and the importance of awareness-raising concerning legal rights, and in this regard, we

commit to taking all necessary steps to provide fair, transparent,

elective, non-discriminalory and accountable services thal promote

access 1o justice for all, including lugal aid

15 We acknowledge that informal justice mechanisms, when in

accordance with intemational human rights law, play a positive role

in dispute resolution, and that everyone, particularly women and

those belonging to vulnerable groups, should enjoy full and cqual access to these justice mechanisms [54]

The World Justice Project’s 2019 report described access to justice as “a

fundamental component of the rule of law, and the failure of justice systems to

meet justice needs compounds inequality, erodes trust in institutions, and renders

societies vulnerable to a populist backlash against core rule of law norms, as we see in too many parts of the world today” [41, p.5]

Intemational standards recognize access to justice as both a fundamental

human right and a means lo prolwct other universally recognized human rights Human rights protections are lacking, margimalized groups are often vulnerable to abuse and face significant challenges in realizing their rights, including wilhin the formal juslice syskem The right to access justice

contributes to empowering individuals and communities to assert their rights,

strengthening the frameworks that support human rights al the nalional, regional, and international levels

The substance of “access to justice” as a right makes it of particular

importance conceming its linkages with “cquality before the law” and “far trial”

Besides, the relevance of access to justice within the human rights framework is seen in “the justiciability” of all human rights and access to remedies in violation

cases “Ihe recognition of a right would be meaningless without access to the

means of enforcing claims arising from the right

According to UNDP, access ta juslice is essential for poverty eradication and human development for the following reasons: Firstly, groups

such as the poor and disadvantaged who suffer from discrimination also often

fall victim to criminal and illegal acts, including human rights violations Because of ther vulnerability, they are more likely to be victims of fraud,

theft, sexual or economic exploitation, violence, torture, or murder Secondly,

crime and illegality are likely to have a more significant impact on poor and disadvantaged people’s lives, as it is harder for them to obtain redress As a

result, they may fall further into poverty Justice systems can provide

remedies that will minimize or redress the impact of this — e.g., by clarifying

agreements and titles, determining financial compensation, and enforcing penal

measures Thirdly, justice mechanisms can be used as lools lo overcome deprivation by ensuring, for instance, access to education by girls and minorities,

or by developing jurisprudence on access to food, health, or other economic,

cultural, ar social human nights Lastly, [air and efleclive justice systems arc the

best way to reduce the risks associated with violent conflict ‘(he elimination of

impunity can deter people from commilling further injusiices ur taking justice into their own hands through illegal or violent means In many countries,

violence reduction is critical for achieving MDGs [46, p.3]

1.5 The Right to Access to Justice in International Law

Access to justice is a right recognized under both the principal

international and regional human rights instruments, including the Charter of the United Nations, UDHR, TCESCR, TCCPR, the International Covenant on Economic, the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC)

Intemational human rights conventions emphasize the crucial implications of

the right to access to justice (such as the right to equality before the law, the

sight to a fair trial, the right to access elective remedies) The UDI and the

ICCPR state that everyone has “the right to an effective remedy against

violations of a fundamental right” [55]

The UDHR stztos thal: everyone has the right lo an effective remedy by the competent national tribunals for acts violating the fundamental rights

granted him by the constitution or by law (Article 8)

The ICCPR provides the same nght in mare detail by requiring each

State Party to the Covenant to undertake

a To ensure that any person whose rights or freedoms as herein

recognized are violated shall have an effective remedy, notwithstanding

that the violation has been committed by persons acting in an official capacily;

b ‘To ensure that any person claiming such a remedy shall have his

right to that determined by competent judicial, administrative or

Jogislalive authoritics, or by any olher competent authority provided

for by the legal system of the State, and to develop the possibilities

of judicial remedy;

c To ensure that the competent authorities shall enforce such remedics when granted

The ICESCR contains a similar provision, which obliges the Slate Parly

to, among other things, “develop the possibilities of judicial remedy” A State

Party seeking to justify its failure to provide any domestic legal remedies for violation of economic, social, and cultural rights would nced to show cither that such remedies are not “appropriate mean” within the terms of Article 2/1

of the ICESCR [55]

In international human rights law, the respect and protection of

human rights can be guaranteed by the availability of effective judicial

remedies When a right is violated, or damage is caused, access lo justice is

of fundamental importance for the injured individual It is an essential

component of the rule of law

Because of the importance of access to justice, the 2030 Agenda Lor Sustainable Development, adopted by all United Nations Member States in

2015, set Goal 16 to build peaceful, just, and inclusive societies It includes a

dedicated target on the rule of law and access to justice, considering an essential

accelerator of progress across the entire 2030 agenda, as it contributes to the

achievement of poverty eradication (SDGs 1), gender equality (SDGs 3),

decent work (SDGs 8), reduced inequalities (S1XGs 10), among others Access

to justice and being a central element of SDGs 16 is crucial to implementing

many other SDGs, such as eradicaling poverly and hunger (SDGs 1 and SDGs

2) It gives farmers and other agrarian communities the tools they need to

improve their tenure security, leading to more productive investment

Similarly, tho ability to access and cnforce regulalory frameworks help to

determine whether contracts and labor and environmental standards — entical

for fair development outcomes — are respected in practice For example, in

the Philippines, survey resulls from the Asian Development Bank showed that

in communities with legal support, regulatory reforms resulted in residents

with higher levels of productivity, higher income, more disposable income,

and more investment in their farms

Access to justice and legal empowerment help translate legal guarantees

of gender equality into real improvements in the daily lives of women (SIGs

5) by supporting women in protecting themselves from domestic violence, sharing in benefits from natural resources, retaining control over loans taken

out in their name, and accessing inheritance or property upon divorce For

example, in Bangladesh, providing access to justice for women reduced the

illegal practice of dowry payment and increased women’s cash savings for emergencies, compared to other communities without legal help, according to

the Asian Development Bank [39, p.4]

tạ ờ

Justice and gavernance can also help preserve the environment (SDGs

14 and SIGs 15) A global study in 2009 of 80 torest areas found a correlation between local rule-making about forest management and high carbon storage and other livelihood benctits, such as increascd firewood, todder, fertilizer, and timber available to meet the basic subsistence needs of local users According

to the survey, when local users are insecure in their rights, they consume more

forest products However, when their tenure rights are secure, they conserve

biomass and use their forest commons more sustainably Access to legal help

can help communities secure nghts over common land, giving them more control over their livelihoods and more significant incentives to preserve their

environment Several OLCD countries — for example, the United Kingdom,

Australia, and New Zoaland — sock La ineroasc acocss to justice by clustering

administrative tribunals on related subject matters (e.g., Environmental and

land use planning) In providing “one window access”, they increase

officiencics and improve environmental outcomes [39, p.5]

Conclusion of Chapter 1

Access to justice, from a rights-based perspective, refers to the ability

of people, especially people from disadvantaged groups and/or marginalized

groups to prevent and overcame damage or injustice by seeking and obtaining

a Temedy, through formal and informal justice systems, for grievances under

human rights principles and standards

Access to justice has been recognized in many intemational and regional treaties on human rights States and social organizations should review laws,

practices, and laws to enhance the guarantee al access to justice for all, especially

the disadvantaged marginalized social groups

tà 3

CHIAPTER 2 THE RIGHT TO ACCESS TO JUSTICE FROM UNDP’S APPROACH

2.1 An overview of the Right to Access to Justice from UNDP’s approach UNDP works in about 170 countries and territories, helping to achieve

the eradication of poverty and the reduction of inequalities and exclusion

UNDP helps countries to develop policies, leadership skills, partnering abilities, institutional capabilities, and build resilience to sustain development

results accompany securing human rights, particularly the rights of vulnerable

groups According to UNDP annual report 2019, with UNDP support, 4 mullion people in 27 countries gained access to justice [50, p.5] ‘Lhat support

aims to cnsure access to justice is a core component of the work in the arca of

rules of law

Through working in those 170 countries and territories, UNI2P put a

question lor poople there: what “justice” really means to them The supprised

answer is: they do not just refer to the visible parts of the legal system - such as the

courts, the prosecutors, or the police, but they care most about faimess, equity, oquality and social justice and laws and institutions that protect agains! discrimination

and abuse of authority When left unaddressed, the horizontal mequalities that some

groups in socicty tend to face daily can transform into collective gricvances and frustrations, sometimes with [ar-reaching consequences

Justice, therefore, remains to be seen as one of the key drivers of

stability This is why UNDP’s work on the rule of law and justice is focused

on providing effective but also accessible and affordable remedies to people’s

grievances; it is part of UNIDP’s comprehensive approach to sustaining peace

and lostoring inclusive development [62]

UNDP’s mandate is poverty reduction Its priorities reflect a specific

commitment to the achicvement of MDGs within the tramework of the Millennium

Declaration Together these present a global agenda lor poverly cradication,

democratic governance, and human nights ‘lhe organization believes that

demoeratic governance is a central plank in achieving the MDGs, and access to justice, as an empowerment lool, underpins interventions in this area After that,

in September 2015, member states of the United Nations made an important

breakthrough by agrocing on SDGs 16.3: “Promote the rule of law at the national and international levels and ensure equal access to justice for all”, which recognizes the intrinsic links between access to justice, poverty reduction, and inclusive growth The SDGs provide a unique opportunity to

reflect on how national governments can ensure that economic growth,

development and poverty reduction strategies integrate equal access to justice

and logal empowerment inilialives, as inlegral cloments necessary Lo achiove

these objectives

Over the past years, UNDP has become significantly active in cnhancing access to justice worldwide With their experience, UNDP allocated some

principles for action on access to justice:

(i) Policies and programs need to ensure an explicit focus on the poor

and disadvantaged

Access to justice has a direct impact on an individual's quality of life,

ospocially the life of the poor and disadvantaged groups UNDP works with

LN state members to ensure that their policies and programs need to have natural remedies to reduce the distance in that the poor and disadvantaged can

zeach (heir righls National and local authorities also need support to rapidly

compensate justice services for the population, especially for the poor and disadvantaged

(ii) Capacity development for access to justice requires building an

existing strengths and salutions

Improving weaknesses and overcoming obstacles is necessary for

29

strengthening access to justice, bul the most rapid way to bring timely remedics

is to enhance existing strengths and solutions People’s capabilities are focused

on rather than substituting national actors with external consultants Additionally,

civil society’s participation in community organizing and developing paralegal and alternative legal services are becoming an effective solution for enhancing

access to justice, mainly in circumstances that the formal legal systems have not

filled all the gaps of justice reform

(iit) Significant reforms leading to access to justice require an integrated

approach that included:

» protection of human rights, especially those af the poor and disadvantaged,

put pro-poor legislation into the legislative process

» strongthuning capacilics lo seck remedies, expanding legal aid services to

the poorest of worst disadvantaged areas

» improving instilutional capacilies la provide remedies by strengthening

allcrnative dispute resolution mechanisms with adjudication, due proce:

enforcement mechanisms (police and prisons), and civil society efforts to

foster accountability

(iv) Justice sector reform entails strengthening relevant national institutions

and democratic governance initiatives

Justice is an arca of mercasing importanec in development cooperation

UNDP views it as closely related to human development and poverty eradication, and as a fulcrum for a human rights-based approach to programming

Accordingly, access to justice and human rights is a direct service line in

UNDP’s democratic governance practice The other closely related services

lines in democratic practice are parliamentary development, electoral systems and processes, access to information and civic dialogue, decentralization,

and local governances [63]

To facililate relevant national instilulions and democratic governance

inilialives, NDP showed that we have to

(a) strenglhening Parliament's legislalive capacity to establish an

appropriate legal framework for the judiciary, (b) establishing mechanisms for transparency and public scrutiny, (c) supporting decentralization:

(d) capacitating local institutions;

(e) unproving public information systems, () post-crisis confidence building and other governance activities

Additionally, anti-corruption efforts and human rights protection often need to address the judicial system

(v) Access to justice programming needs to be linked with development

aciivilies in other sectors

The law underlies nearly every aspect af people’s lives, including health,

employment, education, housing, and entrepreneurship In many countries,

unequal access to and discrimination in these sectors create real barriers to

economic participation, especially for traditionally marginalized populations

(youth, the elderly, women, migrants) However, these sectors depend upon legal frameworks for their operations and legitimacy Providing people access

to justice enables them to tackle these inequalities and participate in legal processes that promote inclusive growth [39, p.5]

As mentioned earlier, justice and the right to access to justice have many definitions, and they need to be reviewed im different aspects As a result, promoting access means promoting the development of many arcas of life and agencies’ parlicipalion in fecdback lrom many ficlds such as cducauon,

economics, medical surance, cle.

(vi) In some societies, the disadvantaged and other marginalized groups prefer the traditional justice system over the formal one

Although courts in justice systems are critical for access to justice and

the rule of law, relatively few legal problems are resolved through the court system or formal alternative dispute resolution processes When faced with

legal problems, people will often turn to non-court-based processes and even

non-legal services Income, distance, personal capability, and how services

are made available are key factors that influence people’s legal and other

services [39, p.11]

In some countries, people have prejudice to anyone who struggled with

courts, whatever how innocent they are, especially in low legal literacy

sociclics In such societies, people prefer the traditional and customary system

to resolve a dispute than the formal justice system However, the fact that the

tradiuonal and customary system is not always consislent with human rights norms Some traditional or customary systems still have backward lagging

behind, not appreciate women’s position, or keep in mind that children are the

property of parents to scold or even teach them by beating

(vii] Assessment of aid absorption capacities is critical, Fxpecting

quick results may unintentionally undermine institutional systems and the

democratic process

Each country, each community has different cultures, habits, customs, lifestyles, deeply ingrained in people's minds Therefore, immediately changing

a community’s perception of the right to justice is not easy Judicial reforms

need to be conducted according to the roadmap and assessed receiving judicial

reform aid packages’ efTecliveness

(viii) Broad participation is crucial

Judicial reform and strengthening the right to access to justice impact