Download the file - United Nations Rule of Law

to achieve access to justice for the poor througha formal justice system, but the ideals of the ruleof law are an indispensable part of the vision ofthe legal empowerment agenda. Legal Empowermentof the Poor requires a society governed bythe rule of law. While the ‘rule of law’ has differentmeanings in different contexts, US Justice AnthonyKennedy (a Commissioner of the CLEP) hasdefined the rule of law as requiring fidelity to principlesregarding law being superior and binding,non-discriminating, respectful of people, givingpeople voice and their human rights, and effective(see Textbox 1 for his and other definitions).Rather than attempting a comprehensive surveyor a tailor-made theoretical framework, this chapterfocuses on varying aspects of the access tojustice issue. Section 2 addresses a widespreadand so far underappreciated problem: many poorpeople lack any sort of legal identity or formallegal recognition, and as a result they are completelyexcluded from the formal protections ofthe state legal system and as beneficiaries ofpublic goods and services. Section 3 turns to thebasic challenge for our working group: How canthe justness and fairness of what is delivered beimproved? How can the costs be reduced? Fourstrategies to improve access to justice are discussed.We start at the client end of the supplychain with facilitating self-help and education.Then we move on to the provision of legal services,the development of procedures that are bettersuited to legal needs and resources of the poor,and the potential of informal justice.Box 1 Rule of Law and JusticeThe rule of law (….) refers to a principle of governancein which all persons, institutions and entities,public and private, including the state itself, areaccountable to laws that are publicly promulgated,equally enforced and independently adjudicated, andwhich are consistent with international human rightsnorms and standards. It requires, as well, measures toensure adherence to the principles of supremacy of law,equality before the law, accountability to the law, fairnessin the application of the law, separation of powers,participation in decision-making, legal certainty,avoidance of arbitrariness, and procedural and legaltransparency.(…)“justice” is an ideal of accountability and fairnessin the protection and vindication of rights and theprevention and punishment of wrongs. Justice impliesregard for the rights of the accused, for the interests ofvictims and for the well-being of society at large. It isa concept rooted in all national cultures and traditionsand, while its administration usually implies formaljudicial mechanisms, traditional dispute resolutionmechanisms are equally relevant. The internationalcommunity has worked to articulate collectively thesubstantive and procedural requirements for the administrationof justice for more than half a century(Rule of Law and Transitional Justice in Conflict andPost-Conflict Societies Report of the Secretary-General;S/2004/616 of 23 August 2004).The Law is superior to, and thus binds, the governmentand all its officials.The Law affirms and protects the equality of all persons.By way of example only, the law may not dis-criminateagainst persons by reason of race, color, religion,or gender.The law must respect the dignity and preserve thehuman rights of all persons.The Law must establish and respect the constitutionalstructures necessary to secure a free and decent societyand to give all citizens a meaningful voice in formulatingand enacting the rules that govern them.The Law must devise and maintain systems to adviseall persons of their rights and just expectations, andto empower them to seek redress for grievances andfulfilment of just expectations without fear of penalty orretaliation. (Kennedy 2007).3