The rights of access to justice UNDP s approach and vietnamese perspective

Access to justice is a fundamental human right and an indispensable tool to protect other human rights.. International law notes access to justice is both - a fundamental right and a too

VIETNAM NATIONAL UNIVERSITY

SCHOOL OF LAW

TRAN THI ANH HONG

THE RIGHTS OF ACCESS TO JUSTICE:

MASTER THESIS

VIETNAM NATIONAL UNIVERSITY

SCHOOL OF LAW

TRAN THI ANH HONG

THE RIGHTS OF ACCESS TO JUSTICE:

Specialized in Law on human rights

Code No.: 8380101.07

MASTER THESIS

Supervisor: A/Prof VU CONG GIAO

ACKNOWLEDGEMENTS

With great joy, have I written this thesis, but I 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 every 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 learning materials 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

PREFACE 1

CHAPTER 1: THEORETICAL ASPECTS OF THE RIGHT TO ACCESS TO JUSTICE 7

1.1 The conception of Justice and the Right to Access to Justice 7

1.1.1 Conception of Justice 7

1.1.2 Conception of the Right to Access to Justice 10

1.2 Characteristic and connotation of the Right to Access to Justice 14

1.3 Methods to ensure the Right to Access to Justice 17

1.4 The Role of the Right to Access to Justice 21

1.5 The Right to Access to Justice in International Law 23

Conclusion of Chapter 1 27

CHAPTER 2: THE RIGHT TO ACCESS TO JUSTICE FROM UNDP’S APPROACH 28

2.1 An overview of the Right to Access to Justice from UNDP’s approach 28

2.2 Elements that ensure the right to access to justice from UNDP’s approach 34

2.2.1 Legal Protection 34

2.2.2 Legal Awareness 39

2.2.3 Legal Aid and Counsel 43

2.2.4 Adjudication 49

2.2.5 Enforcement 56

2.2.6 Civil Society and Parliamentary Oversight 59

Conclusion of Chapter 2 62

CHAPTER 3: SITUATION AND SOLUTIONS TO PROMOTE THE RIGHT TO ACCESS TO JUSTICE IN VIETNAM: ANALYSIS FROM UNDP’S APPROACH 63

3.1 An overview of the Vietnamese legal system related to ensuring the right to access to justice 63

3.2 Elements that ensure the right to access to justice in Vietnamese law: Analysis from UNDP’s approach 65

3.2.1 Legal Protection 65

3.2.2 Legal Awareness 68

3.2.3 Legal Aid and Counsel 69

3.2.4 Adjudication 72

3.2.5 Enforcement 74

3.2.6 Civil Society and Parliamentary Oversight 78

3.3 Shortcomings and limitations in ensuring the right to access to justice in Vietnam 80

3.4 Solutions to ensure the right to access to justice in Vietnam following UNDP’s approach 88

3.4.1 Strategic Solution 88

3.4.2 Specific Solution 90

Conclusion of Chapter 3 92

CONCLUSION 93

REFERENCES 94

TABLE OF ABBREVIATIONS

UNDP: United Nations Development Programme

ICCPR: International covenant on Civil and Political rights

ICESCR: International Covenant on Economic, Social and Cultural Rights ICT: Information and communications technology

MARG: Multiple Action Research Group‘s

MDGs: Millennium Development Goals

MDGs: Millennium Declaration Goals

NGOs: Non-government organizations

NHRIs: National human rights institutions

OECD: Organization for Economic Cooperation and Development SDGs: Sustainable Development Goals

SIDA: Swedish International Development Cooperation Organisation UDHR: Universal Declaration of Human Rights

UNICEF: United Nations Children‘s Fund

UNODC: United Nations Office on Drugs and Crime

WJP: World Justice Program

LIST OF FIGURES AND TABLES

Table 3.1: Public opinion about local governance 79 Figure 3.1: Social group analysis, guarantee of fundamental rights 67Figure 3.2: Vietnam‘s factor scores in WJP 2020 81Figure 3.3: Vietnam‘s disaggregated scores for each of the sub-factors

in WJP 2020 81

PREFACE

1 The urgency of the research topic

If people break their arms, they probably go to 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 can afford the services they need? Access to justice can help us answer that question Access to justice is commonly known as the ability to use the legal system to plan their lives and resolve disputes

Justice 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 society, 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 right and justice by criticizing injustice, criticizing social inequality, condemning the bad habits of the state machine The aspiration to burn 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 France 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 (no jury council, no attorney, no accused, etc.) When

claiming justice to the colonial countries in Indochina 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 rights

Access to justice becomes a key goal in the mission of UNDP to alleviate poverty, resolve conflicts, and strengthen state governance UNDP emphasizes the need to focus on the ability to seek and provide remedial measures for injustice, especially for poor and disadvantaged people, including women, children, ethnic minorities, people living with HIV/AIDS and disabilities

In the contexts of COVID – 19, the economic fallout of the crisis will put 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 in 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 are as urgent as the foundation of idealism and direction for all social policies However, Vietnam has not yet had many research

arguments regarding access to justice and the compatibility between Vietnamese law and international 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 Literature 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 House, 2011

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

- Ensuring 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

- Michael J Sandel (2010), Justice: what’s the right thing to do, New

York: Farrar, Straus and Giroux

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

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

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

However, on the aspect comparing the compatibility level of Vietnam‘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 in Vietnam

3.2 Research Tasks

The thesis will address the following specific tasks:

First, clarify the theoretical issues of access to justice, the generalization

of the characteristics, contents, roles, and methods of assurance of access to justice; simultaneously, consider the position of access to justice 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 Vietnam concerning the factors that ensure access to justice in the UNDP‘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 to 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

Access to justice is a general topic that needs to be researched in a 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 that ensure access to justice in the opinion of UNDP

5 Research Methodology and Methods

5.1 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 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

5.2 Research Methods

The method of analysis – synthesis is the method of the study of the focus of the thesis, which combines the analysis of theoretical and practical issues along with other methods of Marxism as the comparative method, statistical method

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

justice in Vietnam: Analysis from UNDP‘s approach

CHAPTER 1 THEORETICAL ASPECTS OF THE RIGHT TO

According to the Vietnamese Words and Languages Dictionary (Ho

Chi Minh City General Publishing House, 2006), “Justice is the right awareness and respect for everyone’s legitimate rights.”

From 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 being writhed under insult or unendurable physical pain, we are still honest and guiltless people, but those who unfairly treat us are evildoer; 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 diseases, are they better discovered by a doctor and then cut off the cure, or are they not detected or cured better? According to Socrates, happy is not about heaping up a tremendous amount of money and honor reputation, 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 He believed Justice was to give people what they deserve 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) He 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 fair constitution aims to harmonize each individual‘s freedom with the freedom of

all others He wrote:

No one has a right to compel me to 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 However, the limit of Kant‘s thought was that he did not 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, justice denies that the loss of freedom for some is made right by a greater good shared by others It does not allow that the sacrifices imposed on a few outweighed by the larger sum of advantages enjoyed by many Therefore, in a just society, the liberties 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 activity 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 cannot convict someone or take away their liberty unless they follow fair and just processes, and people can trust and have confidence in the criminal justice system Second, access to justice is a

fundamental principle of the rule of law, so it must be respected and guaranteed Justice delayed is justice denied Third, 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 (each individual can have their feelings 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 Justice 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 to Access to Justice

Access to justice is a fundamental right that involves 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 not easy to define precisely what access to justice

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

“access to justice” are admittedly not easily defined However, they serve to focus on the legal system’s two primary purposes – the system by which people may vindicate their rights 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 rights 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 committee commented: It is vitally essential to reform public institutions and remove legal and administrative barriers that still prevent poor people from gaining their rights [62]

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 legal right to litigate or defend While access to justice was considered a ―natural right‖, governments did not feel a positive obligation to 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 traditional point about access to justice Starting in the 1960s, it focused on practicing law for the poor and the disadvantaged The 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 cost, delay, and complexity of the legal system, focus on protecting the rights of the poor and the disadvantaged This concept of access to justice forms the foundation for today‘s legal aid and poverty law clinics The problem of access to justice is summarized as due 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 ability to access the courts and legal representation but also one‘s ability to engage effectively with law enforcement officials and to make use of informal, non-state justice mechanisms Civil society can provide the necessary support

for individuals and communities and offer an effective 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 However, access to justice does not always involve judicial recourse but accessible, affordable, convenient, and effective redress or remedies That 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 justice is not only about the right to 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 modern point of view, used more recently by nations, especially international organizations

From a rights-based perspective, access to justice refers to the ability of people from disadvantaged groups to prevent and overcome 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 justice concerning economic issues In contrast, members of marginalized castes highlighted the social dimensions of access, and indigenous minorities highlighted the political

dimension Therefore, 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 poverty reduction 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 limiting 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 to justice‘s goal is compensation and remedy for injustices and damages that they suffered through formal and informal judicial mechanisms following international human rights principles The transition to modern 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 frequently weakened by:

(i) 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, resulting in unlawful searches, seizures, detention, imprisonment, weak enforcement of laws, implementation of orders, and decrees

(ii) Severe limitations in existing remedies are provided either by law

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

non-(iii) Gender bias and other barriers in the law and legal system: inadequacies

in existing laws, sufficient disabilities, and low literacy levels

(iv) Lack of de facto protection, especially for women, children, and men in prisons or detention centers

(v) Lack of adequate information about what is supposed to exist 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) ormalistic and expensive legal procedures in criminal and civil litigation and administrative board procedures

(x) Avoidance of the legal system due to economic reasons, fear, or a sense 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 UNDP 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 Justice

Access to justice is a fundamental right in the human rights system However, unlike the remaining human rights, it has the following essential characteristics:

(i) The subject of access to justice: the one who caused damage, and

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 area of social life can cause these injustices or damages Accordingly, the owners of the right to access to justice include those who cause damage, injustice and those who suffer damage from injustice

The subject of damage or injustice of access to justice 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 These 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 to access to justice is a right for 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 entities, agencies, or organizations For example, 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 to injustices and harm to the people

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

disadvantaged groups in society such as women, children, people with disabilities, LGBT, people with HIV/ AIDS…

Traditionally, 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 to reach competent authorities, showing infringement of access to justice by this post office

(iii) 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 modern 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 modern perspective recognizes that ensuring justice is by no means under only the provisions of law, but also the relevant custom The sphere of impact from the modern point of view recognizes formal and informal judicial system‘s participation

(iv) The circumstance of rights arises

Suppose other rights always exist and require the subjects to ensure that they do not violate other entities‘ rights In that 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 courts to execute 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 government; in the rule of law state, justice is the right of people and the duty of states

Meanwhile, from a modern perspective, the implication of access to justice extends to the non-judicial system, including the negotiation process to make significant changes in the rule of law, affect the role of public institutions and empower the disadvantaged groups can fight against inequality [33]

Hence, 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 to ensure the Right to Access to Justice

Methods to ensure the right to access to justice include (i) Legal protection, (ii) Agency systems involved in resolving disputes, and (iii) Legal aid and counsel

(i) Legal protection

Rights and obligations of each 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 legal 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 traditional approach, legal protection is limited to the application of state laws and regulations recorded in the legal documents, the modern 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 However, not all practices or customary laws are applied to ensure the right to access 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 informal law to meet the national legal system‘s gaps

To have a robust legal protection framework, community leaders, social organizations, and the entire population need to contribute to the state and the government in setting this legal defense standard of the protection framework

(ii) Agency systems involved in dispute settlement

The search for remedies is done through the formal justice system (investigation agencies, prosecutors, courts, etc.), the informal justice system, and oversight system (elected bodies, social organizations) Those systems encompass many mechanisms of differing degrees and forms of formality Degrees of formality vary concerning 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

ensuring the equitable resolution of disputes between 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 Simultaneously, it is the second 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 informal justice system encompasses the resolution of disputes and the regulation of conduct by adjudication, or the assistance of a neutral third party that is not 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 informal justice system, but are regulated under specific 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 modern state‘s existence or through their 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 involve

a third party (the justice institution or mechanism) For instance, when an employer gives an employee compensation in case of inappropriate 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 been brought to formal court

Due to the inadequacies of dispute resolution through the formal judiciary and the informal judiciary‘s advantages, the application of informal mechanisms to dispute resolution is increasingly common In many cases, it is preferred However, 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 to justice

(iii) 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 effective solution to support public access and ensure access to justice for all, especially vulnerable groups

According to UNODC, legal aid is understood as ―free, 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

a range 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

(from 2007 to 2015), the Legal Assistance Centers carried out 1,055,294 cases, in which the number of legal proceedings is 61,120, legal consultancy

is 982,442 Representatives 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 in itself and an essential prerequisite for the protection and promotion of all other human rights Access to justice encompasses the right to a fair trial, including equal access to and equality before the courts, and seeking 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, effective, non-discriminatory and accountable services that promote access to justice for all, including legal aid

15 We acknowledge that informal justice mechanisms, when in accordance with international 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 equal 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]

International standards recognize access to justice as both a fundamental human right and a means to protect other universally recognized human rights Human rights protections are lacking, marginalized groups are often vulnerable to abuse and face significant challenges in realizing their rights, including within the formal justice system The right to access justice contributes to empowering individuals and communities to assert their rights, strengthening the frameworks that support human rights at the national, regional, and international levels

The substance of ―access to justice‖ as a right makes it of particular importance concerning its linkages with ―equality before the law‖ and ―fair 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 The recognition of a right would be meaningless without access to the means of enforcing claims arising from the right

According to UNDP, access to justice 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 their 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 tools to 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, or social human rights Lastly, fair and effective justice systems are the best way to reduce the risks associated with violent conflict The elimination of impunity can deter people from committing further injustices or 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, ICESCR, ICCPR, 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) International human rights conventions emphasize the crucial implications of the right to access to justice (such as the right to equality before the law, the right to a fair trial, the right to access effective remedies) The UDHR and the ICCPR state that everyone has ―the right to an effective remedy against

violations of a fundamental right‖ [55]

The UDHR states that: everyone has the right to 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 right in more 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 capacity;

b To ensure that any person claiming such a remedy shall have his right to that determined by competent judicial, administrative or legislative authorities, or by any other 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 remedies when granted

The ICESCR contains a similar provision, which obliges the State Party

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 need to show either 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 to 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 for 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 5), decent work (SDGs 8), reduced inequalities (SDGs 10), among others Access

to justice and being a central element of SDGs 16 is crucial to implementing many other SDGs, such as eradicating poverty 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, the ability to access and enforce regulatory frameworks help to determine whether contracts and labor and environmental standards — critical for fair development outcomes — are respected in practice For example, in the Philippines, survey results 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 (SDGs 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]

Justice and governance can also help preserve the environment (SDGs

14 and SDGs 15) A global study in 2009 of 80 forest areas found a correlation between local rule-making about forest management and high carbon storage and other livelihood benefits, such as increased firewood, fodder, 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 rights over common land, giving them more control over their livelihoods and more significant incentives to preserve their environment Several OECD countries — for example, the United Kingdom, Australia, and New Zealand — seek to increase access to justice by clustering administrative tribunals on related subject matters (e.g., Environmental and land use planning) In providing ―one window access‖, they increase efficiencies 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 overcome damage or injustice by seeking and obtaining

a remedy, through formal and informal justice systems, for grievances under human rights principles and standards

Access to justice has been recognized in many international and regional treaties on human rights States and social organizations should review laws, practices, and laws to enhance the guarantee of access to justice for all, especially the disadvantaged marginalized social groups

CHAPTER 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 million people in 27 countries gained access to justice [50, p.5] That support aims to ensure access to justice is a core component of the work in the area of rules of law

Through working in those 170 countries and territories, UNDP put a question for people 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 fairness, equity, equality and social justice and laws and institutions that protect against discrimination and abuse of authority When left unaddressed, the horizontal inequalities that some groups in society tend to face daily can transform into collective grievances and frustrations, sometimes with far-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 UNDP‘s comprehensive approach to sustaining peace and fostering inclusive development [62]

UNDP‘s mandate is poverty reduction Its priorities reflect a specific commitment to the achievement of MDGs within the framework of the Millennium

Declaration Together these present a global agenda for poverty eradication, democratic governance, and human rights The organization believes that democratic governance is a central plank in achieving the MDGs, and access to justice, as an empowerment tool, underpins interventions in this area After that,

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

breakthrough by agreeing 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 legal empowerment initiatives, as integral elements necessary to achieve these objectives

Over the past years, UNDP has become significantly active in enhancing 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, especially the life of the poor and disadvantaged groups UNDP works with

UN 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 reach their rights 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 on existing strengths and solutions

Improving weaknesses and overcoming obstacles is necessary for

strengthening access to justice, but the most rapid way to bring timely remedies

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

(iii) Significant reforms leading to access to justice require an integrated approach that included:

• protection of human rights, especially those of the poor and disadvantaged, put pro-poor legislation into the legislative process

• strengthening capacities to seek remedies, expanding legal aid services to the poorest of worst disadvantaged areas

• improving institutional capacities to provide remedies by strengthening alternative dispute resolution mechanisms with adjudication, due process, 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 area of increasing importance 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 facilitate relevant national institutions and democratic governance initiatives, UNDP showed that we have to:

(a) strengthening Parliament‘s legislative 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) improving public information systems;

(f) 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 activities in other sectors

The law underlies nearly every aspect of 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 in different aspects As a result, promoting access means promoting the development of many areas of life and agencies‘ participation in feedback from many fields such as education, economics, medical insurance, etc

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

to resolve a dispute than the formal justice system However, the fact that the traditional and customary system is not always consistent 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 Expecting 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‘ effectiveness

(viii) Broad participation is crucial

Judicial reform and strengthening the right to access to justice impact