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Management

Referencing Styles : AGLC | Pages : 5

Access to Justice

Access to Justice is a worldwide problem owing to various internal and external factors. However, it has been said by Arthurs (2014), that the law societies do not focus to solve the problem of access of justice but instead provide “alternate legal services” that help the people who cannot afford legal services[ Harry Arthurs, Professor Emeritus, Osgoode Hall Law School, at York University, Toronto: “The Future of Law School: Three Visions and a Prediction,” (2014), 51:4 Alberta Law Review 705-716]. These people instead, get habituated with the problem and tend to live with it. It is an inevitable problem because of the concept of a bencher[ Law Society Act Section 1(1) ] which is operative in nature. 

The rule of law and human rights are the core essence of modern democracy. Access to justice is an important part of protecting such rights. However, the legal system may not be well accessible for everyone and may cause vulnerability for such communities.  Thus, access to justice include, getting the right data and information about law and its application, understanding of a legal problem and knowing about the remedies available for the same, getting the right help at the right time for the right issue which essentially starts from getting a right lawyer, being able  to make your opinions delivered when the laws are made. There are lot of issues related to the access of justice including education, literacy levels, financial background of people, access to law and information, past traumas in relation with legal processes and hesitation to go through the same again.

Law societies are institutional in nature meaning they act only in compatibility with their own concept and does not consider the affording capacity of the people to avail such legal services. Benchers are goal oriented. They perform pro-bono services which are free of cost amount to community services which is an essential inclusion to become a judge. Therefore, the cause of problem for access to justice is mainly the lack of economies of scale in the practice of legal profession. According to Arthurs (2014), the major problems to the access of justice is caused by the Government and law societies. Governments fail to make provision for the accountability of law societies to create adequacy of legal services with all competence, ethical and affordability. Secondly, it is the fault of government to not provide adequate resources to operate efficiently like lack of number of courts, judges, prosecutors, and others including the funding for legal Aid services[ Chasse, Ken. "No Votes in Justice Means More Wrongful Convictions." Available at SSRN 2790625 (2016).]. Law societies are to be held responsible because of their failure to solve the affordability problem of the legal services which is now deeply embedded in the justice system devastating it to its core. Thus, if legal services provided by the lawyers and advocates were affordable and within the reach of the poor, then the practice of law would not have been commercialized as a profession. The economic issues of the people and its contrast with commercialization of legal profession has led to the shrinking of the professional foundation and delivery of justice. In Royal Bank of Canada Trust Corp. v. Secretary of State for Defence (2003)[ [2003] EWHC (Ch) 1479 (Eng.).], it was laid down that the Government has restrictions on the usage of Alternate Dispute Resolution System. The parties in the case were ready to adopt mediation as a means to their dispute resolution but the Defence Ministry rejected the plea for mediation stating that the issue involved in the case is that of law and thus, it is unsuitable for mediation. However, in court, the Ministry was favored for the decision but was not awarded any costs for the litigation. The High Court stated the reason for such decision is the result of Ministry’s refusal to refer the case to mediation. If a case involves a rule of law to be in dispute, the case by itself does not become unsuitable for mediation. The parties to the case should have complete freedom to choose compulsory mediation at their will and free consent[ Genn, Hazel. "What is Civil Justice For-Reform, ADR, and Access to Justice." Yale JL & Human. 24 (2012): 397.]. Thus, Government cannot govern the free will of the parties to choose their system of dispute resolution. Government is responsible for the poor economy of the people and it should try to uplift the affordability of its people. In other words, Government should look for employment opportunities, growth and development of country along with its citizens, provide them enough opportunity to earn and afford the services that is made available to all. at the same time, the law societies should concentrate on regulating the economic barometer for the advocates to make it accessible for the people to get lawyers within their economic statuses. However, this does not mean that lawyers are more of social workers. But contribution to the society and its people should be a form of professional ethics as law is a discipline to serve people whose rights have been infringed by state or any other individual or corporation.

According to Albiston and Sandefur (2013)[ Albiston, Catherine R., and Rebecca L. Sandefur. "Expanding the empirical study of access to justice." Wis. L. Rev. (2013): 101.], legal profession is the one responsible for the problem of access to justice. The main reason behind the same is obtaining of legal assistance and participating actively in the legal system and its reformation process. It has been explained that obtaining legal information means that it is not possible for the common man to understand the legal and generic language of the law. legal language is very complex and very specific to its objectivity. Interpretation of legal language is not something that is efficiently done by a common law not having any expertise in law. people are more converse with the standard and plain language and therefore, the legal language of law becomes a barrier to the access of justice due to its complex language. Understanding of plain language is far easier for the common people that the understanding of core language. The other reason behind the responsibility of legal profession in the problem of access to justice participating efficiently in the legal system. It means that even if the person has access to knowledge and has well understanding of it, the access to legal procedures and its understanding along with the legal assistance forms a major barrier. It means that the core procedures with respect to the hierarchy of courts, the making of petitions, the submission of evidences, cross-examination and others are legal procedures and they have certain restrictions. Every addition and deduction of evidences require an addition submission to the court for the permission to submit a new evidence apart from what has been submitted. Also the arguments contended by the parties are subject to the points noted within the petition. Any extra argument which is an additional evidence or issue shall require a separate petition to permit its inclusion.

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