Equal Access to Justice Affects Democracy
A Look at Global Standards of Legal Aid Delivery
Observers believe that legal aid delivery is fundamentally important for equal access to justice for impoverished and marginalized communities; and, it should be a fundamental part of a stable democracy. Many of the same experts point out that legal aid is not always delivered adequately, if at all. Even though they recognize that legal systems and resources are different, they agree that there should be global minimum and formal standards of legal aid delivery.
To that effect; E. Clinton Bamberger, a well respected legal expert, stated in 1965 that: “Lawyers must be activists to leave a contribution to society. The law is more than a control; it is an instrument for social change. The role of the OEO Legal Services Program is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty”.
Global Situation
Today there are many models of legal aid delivery used around the world. Many states have official bodies that monitor and provide such services. This is the original concept behind the LSC in the United States, the “Judi Care” system involving private practitioners, or a combination of the two (like the system used in South Africa), and the use of student clinics at law schools. However, some models are more effective than others, depending on the circumstances; and not all systems are able to provide a minimum standard of legal support.
There is a great deal of evidence that points to a continuing problem with legal aid delivery in many countries. For example, the attorney will make all decisions according to his or her views without consulting the client; or the attorney may not participate actively in the entire procedure. The concern for many observers is that even though some access was obtained with regards to the courts, it ends in a failure of adequately providing sound legal representation to the client. Analysts consider that this can evolve into a violation of the basic rights of the individual to fair and just legal proceedings.
Equal Access to Justice
The need for, and the importance of equal access to justice as regards marginalized or impoverished communities has been discussed in many forums over the years. For example, in a speech delivered to the American Bar Association House of Delegates in 1964, then ABA President Lewis Powell pointed out that: “It has been correctly said that respect for the law is at its lowest with underprivileged persons. There is a natural tendency for such persons to think of the courts as symbols of trouble and of lawyers as representatives of creditors and other sources of harassment.”
In a broader sense, the World Bank addressed the general problem of inequality in their 2005 report “Law or Justice: Building Equitable Legal Institutions”. In that report they stated that: “In some countries, justice sector institutions by their very design perpetuate elite interests at the expense of the majority of the population. In many other countries, formal rules which seemingly protect the interests of the broader community are undermined by institutional practices and informal strategies. Whether understood as elite capture or corruption, these systems serve to increase the power and wealth of a few at the expense of the majority community, leaving the poor suffering the harshest consequences.” They highlight that the lack of legal aid or the inadequate delivery of the same can be a catastrophic ingredient to this form of inequality and the effect that it produces.
Democratic Development
The ultimate concern, as regards the development of a stable and democratic society, is that a lack of adequate legal aid delivery could possibly leave the persons concerned without the ability to access courts; and if they do, they could be unfairly tried due to inadequate representation. They could then lose all protection of the law and faith in the law. Most experts, like those mentioned before, agree that frustration with the law and state institutions is a part of what leads to an unstable society, civil unrest, and sometimes revolution.
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