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FOCUS June 2010 Volume 60

Human Rights Based Approach to Access to Justice

Jefferson R. Plantilla

Poverty defines many communities in Asia, and a major cause of human rights violations. A 2005 explanation of this phenomenon still holds true:1

[F]laws in the agenda for economic development, pursued by many states of the [Asian] region, are amply reflected in the growing poverty and social exclusion of large sectors of the population. Serious violations of economic, social and cultural rights have become engraved in actions of the state. Affected populations find that in the current environment of globalization their own governments are either unable or unwilling to redress the difficulties they confront. Exploitation of labor and depletion of the environment are some of the serious forms of violations resulting from the new economic arrangements. Indigenous populations are often particularly affected by such violations.Governments, having the primary obligation of addressing the poverty issue, have failed to undertake measures that directly address the root causes of poverty.

Governmental institutions, including the courts, have alienated the poor with their inefficient and corrupt systems. The poor find little opportunity to get justice under this situation. Many law- oriented non-governmental institutions see the need to adopt a structural approach to help the poor. Though the legal system is generally problematic, they still consider it as an important resource to access justice.

Initiatives

The concept of access to justice has various forms in Asia. In the 1970s, organizations of lawyers and social development workers employed legal interventions that went beyond the usual notion of legal aid. They realized that legal aid as traditionally defined would not substantially resolve the suffering of the poor and the disadvantaged.2 The court-oriented approach to obtaining justice was not enough. Laws, despite limitations, must be useful at the hands of the poor and the disadvantaged. Other structures in government and society should be utilized to fully address deep-rooted problems of the poor and the disadvantaged.

Indonesia’s “structural legal aid,” the Philippines’
developmental legal assistance” and India’s legal resources approach are examples of legal interventions that were employed by legal professionals and para-professionals in Asia in the 1970s and 1980s.3 They all focused on marginalized groups, operated under the principle that existing laws and legal systems were generally biased in favor of the rich and the powerful, combined legal work with social/community mobilization programs, emphasized the importance of empowering the poor and the disadvantaged, and engaged in law reform. In the 1990s such legal interventions have also been known as public interest litigation or social action litigation4 (particularly in South Asia) and alternative law practice in the Philippines.5

From the 1990s to the present, more institutions were established to address the access to justice question. More initiatives have been tried, some successfully implemented. These initiatives include the law and development programs that incorporate legal empowerment as a major component. Studies on the impact of legal empowerment activities largely show positive outcome, particularly on getting poor and disadvantaged communities to act on their problems.6But access-to-justice law practitioners face numerous challenges. The 2008 Regional Conference on Lawyering for Social Justice and Human Rights7 recommended a number of measures to address common concerns and challenges of these Asian law practitioners, namely,

a. Networking and coalition- building among lawyers and law groups
b. Judicial reform programs and (re)formulation of government policies, in order to improve access to justice by the poor
c. Regional strategizing, such as setting the framework for integrating justice work with broad-based development work, developing regional jurisprudence regarding cases involving international human rights instruments, establishing database on best practices/documentation of successes and challenges, preparing regional human rights reports, and networking with other “communities” or actors (like national human rights institutions, corporations)
d. Learning from the successes and failures in employing legal strategies by the communities
e. Continuing capacity-building to popularize laws and international human rights instruments, maximize use of the media, train people on international human rights instruments and access to justice, and train paralegals
f. Maximizing linkages and critically engaging international bodies and regional formations.

Recent initiatives in the region include the development of close cooperation between the access-to-justice law practitioners and members of the judiciary, the legislators, and the government officials.8 Access-to-justice programs constitute a significant part of the human rights work in Asia.

Asian Consortium

The United Nations Development Programme (UNDP) started the Asia-Pacific Rights and Justice Initiative in 2002 in line with its global program on building the capacity of national systems and institutions to promote and protect human rights, and on promoting the use of a human rights-based approach in development programming. This initiative advocates the 1) use of relevant human rights standards as roadmap for policy change; 2) the voice of the disadvantaged people; 3) the establishment of a clear framework for accountability in development; and 4) the analysis of conflict risks and power inequalities in development efforts.9

Under this initiative, UNDP supported the establishment of a regional ‘community of practitioners’10 that led to the inauguration in the Philippines in November 2009 of the Asian Consortium on Human Rights- based Approach to Access to Justice (hrbaaj2).11

A group of Philippine human rights institutions helped prepare the establishment of this Consortium in cooperation with UNDP and other institutions.12 The Consortium, composed of government institutions and civil society organizations, aims to13

share knowledge, including lessons learned, problems faced [on the application of thehuman-rights based approach to access to justice], and distil best practices and potential model reform experiences from the region as well as globally, into appropriate demand drivenknowledge resources applying human rights principles and standards to facilitate access to justice.

It focuses on three major activities:

a. Networking – creation of a pool of practitioners who are willing to support the work of the Consortium, and who can be resource persons in applying human-rights based approach to access to justice issues
b. Capacity Development – development of training modules and other materials, and holding of training sessions on human-rights based approach to access to justice
c. Advocacy – development of a regional advocacy agenda that support the promotion of human rights based approach to access to justice in Asia.

A region-wide dissemination of concrete experiences on the practice of human rights-based approach to access to justice is valuable. It leads to 1) recognition of the work of national/local groupsundertaking difficult tasks within marginalized communities; 2) creation of a virtual community” of like-minded institutions (both governmental and non-governmental); 3) provision of bases for analysis and development of the principles and practices of human rights- based approach to access to justice; 4) development of working relationships among such institutions within countries and/or the region; and 5) creation of opportunities for staff development drawing from the rich collective experiences of the institutions. It is a concrete form of networking14 and advocacy in the region.

Regional Mapping

To further understand the existing access to justice programs in the region, the Consortium profiled an initial batch of thirty-one government and inter-governmental institutions, non-governmental organizations, people’s organizations, academic institutions, and donor agencies in five subregions of Asia.15 The mapping exercise revealed the following key characteristics of these institutions:

a. Research and training – They research on the legal system, legal aid, United Nations human rights instruments and mechanisms, women's rights, and rural or urban poor. Their training programs focus on the following major topics: legal system, women's rights, child rights, United Nations human rights instruments and mechanisms, traditional or indigenous justice system, legal aid, and the police.
b. Partner beneficiaries - They mostly serve the following beneficiaries:

  1. People's organizations working on women, children, indigenous peoples, small farmers/farm workers, migrant workers, and other issues
  2.  Academic institutions (universities and colleges, law schools, research institutions, non-formal education institutions)
  3.  Executive bodies (local or regional governmental authorities, governmental inter-agency mechanisms)
  4.  Independent bodies (national human rights institutions)
  5.  Security forces (police, military)
  6.  Judicial/Justice Sector (courts, judicial academies)
  7.  Legislative bodies (local and national)

c. Resource allocation – They devote their resources mainly for law and policy reform advocacy, direct legal services, education and networking
d. Major difficulties – They face the following difficulties: weak government partners’ participation, lack of capacity-building materials, lack of trainers, differing human rights-based approaches/frameworks
e. Niches – They do network- building, education and information dissemination work, capacity-building, campaign/advocacy, policy research, and multi- stakeholder approach to programming.

The training materials produced by these institutions show the variety and quantity of resources useful to activities related to human rights-based approach to access to justice. These institutions agreed on the need to establish a regional network of institutions involved in access to justice work.

These institutions also suggested follow-up activities such as more exhaustive survey to cover more institutions, and provision of systems for feedback, exchange of information, and collaboration.

IMG_7992.jpg

Participants at the March 2010 conference of the Consortium

2010 Conference

The Consortium held its first regional conference in March 2010 in Manila to discuss the concept and application of the human rights based approach to access to justice, and its main focuses and plan for the next activities.

The participants recognized the access to justice field as an appropriate arena for the application of the human rights based approach. While they Participants at the March 2010 conference of the Consortium seem to have a common understanding of the human rights based approach to access to justice, they saw varied applications of the concept due to different contexts in Asia.

Legal empowerment, seen as key to the application of the human rights based approach to access to justice, was considered crucial in addressing various forms of discrimination and in utilizing the difficult legal/judicial systems to address problems.

The participants also discussed the experiences in applying the human rights based approach to access to justice on issues regarding indigenous peoples, legal empowerment of the poor, gender equality, environmental protection, and peace-building and post-conflict situations.

As possible activities of the Consortium, the participants discussed capacity-building for duty-bearers and rights-holders, and the organizational requirements to undertake them.

Duty-bearers such as judges and government officials should undergo training workshops to sensitize them on the challenges faced by disadvantaged groups in accessing justice; to learn substantive equality and non- discrimination principles, civil/cultural/economic/political/social rights, “care” for the poor, and gender issues; and to learn how to incorporate methodologies on public participation in policy-making and legislative processes. Their training program should be suited to their national context and include case studies, good practices and experiences, community exposure visits, and training of trainers. They should also have incentives for keeping positive attitude, fulfilling their obligations, and providing service through formal and informal justice systems. They should become familiar about norms or indicators that measure accountability.

The rights holders should become aware of basic human rights and know how to assert, claim, and access them. They should be provided legal assistance as well as be empowered to participate in policy-making, dialogue with the government and donors, and access funds.

Most participants explained the resources within their respective organizations that could be made available to support the activities of the Consortium. The conference ended with the discussion on membership, structure, standard operating procedures, programs, and resource mobilization of the Consortium.

Human Rights Defenders All

In mid-1980s in India, the human rights movement (also known as the civil rights/democratic rights movement) was seen as disconnected from the concerns of the communities. Human rights work was considered to be individual-oriented, state-centered, and court-centered. Human rights issues arose from citizen-state relations, and mainly covered civil and political rights. In sum, the human rights movement had nothing to say about the oppression of the poor communities due to cultural and religious practices, as well as the incursion of development” projects into their territories.16 To some extent, the same image of the human rights workers was true in other parts of Asia in the decade of the 1980s.

The 1993 non-governmental conference on human rights17 that brought together representatives of various types of non-governmental organizations signaled the widening scope of what was considered human rights work. As a result, the human rights agenda consisted of not only abuses by the state but also other causes of marginalization of communities and sectors in society. Human rights work covered cases of police/military abuse and also deprivation of the poor of food and shelter. The work included seeking specific remedy for individuals and also longer-term solutions to problems of communities. The people involved in these activities were all human rights defenders.

The 1999 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms18 provides that human rights defenders, among other services,

contribute to poverty alleviation, humanitarian assistance, post-conflict reconstruction, and to improving individual indicators of development such as access to health care and adult literacy, among many other activities.

This statement is important in emphasizing the work on anti- poverty and access to justice as the work of human rights defenders. Human rights-based approach to access to justice, key to realizing the “larger freedom” of being free from want and fear and being free to live in dignity,19 is a particular tool for these human rights defenders.

 

 

For further information, please contact the Consortium secretariat c/o Institute of Human Rights, U.P. Law Center, Room 105, Bocobo Hall, University of the Philippines Campus, Diliman, Quezon City, Metro Manila 1101 Philippines; ph (632) 925-5854, 920-5514 local 204, 205; fax (632) 925-5854; e-mai l : ihr.cl aw@up. edu. ph; ihr.claw@gmail.com; http://law.upd.edu.ph/new/ index.php/institutes/ihr

 

Endnotes

1. Hina Gilani, “Perils in the Defense of Human Rights,” FOCUS Asia-Pacific, 41/3. Ms. Gilani was the United Nations Secretary General's Special Representative on Human Rights Defenders (2000-2008)
2. See P.N. Bhagwati, “Judicial Activism and Social Action in Asia: The Challenges Ahead,” in Jose Ventura Aspiras, editor, Law as Weapon - Alternate Approaches to Distrtibutive Justice
(Makati: PROCESS, 1990), pages 106-108 on traditional legal aid inadequacies.
3. The existence of repressive governments during this period provided another impetus to develop these legal interventions.
4. Op cit., pages 108-116.
5. See Proceedings: Alternative/ Developmental Law Workshop II
(Makati: Committee of Alternative Law Groups and Structural Alternative Legal Assistance for Grassroots, 1991) for a discussion on the concept and practice of “alternative lawyering” in the Philippines.
6. See for example the Asian Development Bank sponsored study Lessons Learned from Successful Legal Empowerment Strategies
(Manila: ADB, 2001), Mary McClymont and Stephen Golub, Many Roads to Justice: The Law Related Work of Ford Foundation Grantees around the World (New York: The Ford Foundation, 2000), and Patra M. Zen and Restu Mahyuni, editors, Legal Empowerment of the Poor: Lessons Learned in Indonesia (Jakarta: Indonesian Legal Aid Foundation, 2007). In late 1980s, a study of paralegal programs in a number of Asian countries revealed positive outcomes. The study became a basis for the development of A Handbook on Training Paralegals, (Geneva: International Commission of Jurists, 1989) edited by D.J. Ravindran.
7. Representatives of Asian institutions involved in social justice and human rights- oriented law programs attended the conference. The Alternative Law Groups (ALG), a Philippine network of nineteen non- governmental organizations engaged in alternative or social developmental law practice organized the conference. See Proceedings of the Regional Conference on Lawyering for Social Justice and Human Rights
(Manila: Alternative Law Groups Inc., 2008).
8. See for example Going CEDAW in the Philippines
(Bangkok: UNIFEM, 2009) and Time for Action - Implementing CEDAW in Southeast Asia (Bangkok: UNIFEM, 2009) for reports on cooperation between non-governmental institutions and government agencies to ensure proper implementation of an international human rights instrument.
9. Hafiz Pasha and Shoji Nishimoto, Preface, Programming for Justice: Access for All
(Bangkok: United Nations Development Programme, 2005) page v.
10. See Ana Patricia Graca, The Asia- Pacific Rights and Justice Initiative – Regional Assessment (Bangkok: UNDP, 2009), page 8.
11. Earlier regional formations of institutions working on access to justice were the Asian Coalition of Human Rights Organizations (ACHRO) and the Regional Council on Human Rights in Asia.
12. The group was composed of the following institutions (in alphabetical order): Alternative Law Group, Association of Schools of Public Administration in the Philippines, Ateneo Human Rights Center, Commission on Human Rights, Economic, Social and Cultural Rights-Asia, Lawyers League for Liberty, Philippine Judicial Academy, Supreme Court of the Philippines - Program Management Office, and the University of the Philippines - Institute of Human Rights. The Institute of Human Rights is currently hosting the secretariat of the Consortium.
13. Declaration of Principles
, adopted during the Visioning Workshop for Regional Consortium on Human Rights Based Approach to Access to Justice (Tagaytay, Cavite, Philippines).
14. Hina Gilani promoted the idea of networking for the protection of human rights defenders. This is another concern for regional networking among institutions involved in human rights-based approach to access to justice.
She wrote:

Creation of coalitions, national and regional net works f or communication of information, monitoring groups and support groups is a development that is extremely reassuring. These networks are in themselves mechanisms for the protection of human rights defenders. Taking practical steps to protect persecuted defenders should be an important part of the responsibilities of coalitions. Urgent action networks are already functioning in the region and should be utilized more widely as a mechanism for the protection of human rights defenders. Regional initiatives to create monitoring groups and evacuation teams to respond immediately in situations where human rights defenders are in grave and imminent danger can strengthen the element of protection. Gilani, op. cit, page 5.

15. See Initial Results of the Regional Capacity Mapping Endeavour [draft] (Manila: The Organizing Committee-Asian Consortium for the Human Rights Based Access to Justice, 2010). The institutions surveyed were from the following countries: Afghanistan, Bangladesh, Cambodia, China, India, Indonesia, Japan, South Korea, Lao PDR, Mongolia, Nepal, Pakistan, and the Philippines. The Economic, Social and Cultural Rights-Asia (ESCR-Asia) undertook the survey on behalf of the Consortium.
16. For more discussion on this Indian experience see the October 1987 issue of Lokayan Bulletin
focusing on the politics of human rights. It featured a number of articles discussing this divide between the then human rights movement in India and the social-cultural and economic issues of the communities.
17. This conference was held in Bangkok parallel to the regional inter-governmental conference being held in preparation for the 1993 World Conference on Human Rights.
18. United Nations General Assembly resolution, A/RES/ 53/144, 8 March 1999.
19. See In larger freedom: towards development, security and human rights for all - Report of the United Nations Secretary- General
(2005).


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