Basic Principles of access to Justice

Assignment Subject : Advanced Jurisprudence [LAW471]

Submitted to: Arjun koirala

Submitted by: Govinda Khadka

Mid-West University School of Law[l-School]
Birendranagar , Surkhet
BALLB 7th Semester

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 Preface

One of the fundamental tenets of the rule of law is access to justice. People are unable to exercise
their rights, speak out against injustice, or hold decision-makers responsible in the lack of access
to justice. The High-Level Meeting on the Rule of Law's Declaration highlights everyone's equal
right to access justice, including those who belong to vulnerable groups. It also reaffirms Member
States' commitment to taking all necessary measures to offer services that are fair, transparent,
effective, non-discriminatory, and accountable in order to advance access to justice for all.
The price of legal counsel and representation is a significant barrier to receiving justice. Programs
for legal assistance are a crucial part of approaches to improve access to justice. In the High-Level
Meeting Declaration on the Rule of Law, Member States agreed to take all necessary measures to
ensure that all people have access to justice, including legal assistance, in a fair, transparent,
efficient, non-discriminatory, and responsible manner [paras. 12 and 14]. The UN Principles and
Guidelines on Access to Legal Aid in Criminal Justice Systems (67/187) were adopted by the
General Assembly in a resounding vote in December 2012, becoming the first worldwide
document establishing the right to legal assistance. In order to guarantee the right to legal
assistance in criminal judicial systems, the UN Principles and Guidelines set forth basic
requirements.

This Research on the topic Basis principle of access to justice is prepared in the fulfillment of the
requirement for Subject Advanced Jurisprudence [LAW471 ] of B.A.LL.B Degree and will be
submitted to Mid-West University ,School of Law ,Surkhet, Nepal.

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 Table of Contents

1.Introduction/Background.............................................................4
2.Basic principle of Access to Justice..............................................5

3.Importance of access to fair justice...............................................7

4.International standards regarding access to justice....................7
5.Institutional frame work for access to justice...............................9
6.Elements of Procedural Fairness....................................................9

7. Bibliography ...................................................................................10

8. webliography...................................................................................10

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1.Introduction/Background
Legal education, understanding of the law, access to legal representation, adjudication,
enforcement, and civil society scrutiny are all aspects of access to justice. By providing the
populace with a more enticing alternative to using violence to settle personal and political
problems, access to justice promotes long-lasting peace.
Access to justice is more than improving an individual’s access to courts or guaranteeing legal
representation. Access to justice is defined as the ability of people to seek and obtain a remedy
through formal or informal institutions of justice for grievances in compliance with human rights
standards.
Access to justice is a cross-cutting right that must be understood and interpreted in line with other
principles such as equal recognition before the law. It is a right that enables and enhances other
rights such as the right to health as it guarantees judicial and administrative protection of that right

There is no access to justice where

 citizens fear with the system,
 Justice system is financially inaccessible
 Where individuals have no lawyers
 Where People do not have information or knowledge of rights
 Where there is a weak justice system.
• Access to justice supports sustainable peace by affording the population a more attractive
alternative to violence in resolving personal and political disputes.

Access to justice is more than improving an individual’s access to courts or guaranteeing legal
representation. Access to justice is defined as the ability of people to seek and obtain a remedy
through formal or informal institutions of justice for grievances in compliance with human rights
standards. There is no access to justice where citizens (especially marginalized groups) fear the
system, see it as alien, and do not access it; where the justice system is financially inaccessible;
where individuals have no lawyers; where they do not have information or knowledge of rights;
or where there is a weak justice system. Access to justice involves normative legal protection, legal
awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight. Access
to justice supports sustainable peace by affording the population a more attractive alternative to
violence in resolving personal and political disputes by affording the population a more attractive
alternative to violence in resolving personal and political disputes.1

Financial, regional, language, logistical, and gender-specific hurdles to justice exist in societies
emerging from violent war. Not merely adding additional courtrooms or employees will improve
access. The standard of justice is another issue. Legal protection is effectively denied by justice
systems that are far away, expensive, sluggish, or confusing to the general population. 290 To
1
https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice/

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solve these issues, improve the quantity and standard of justice administration. There are several
ways to boost quality, including more citizen-focused court personnel, more opportunistic hours,
and greater access to information about the legal system. The legal system ought to be linguistically
accessible, with local language hearings or interpretation services available

For the population to access justice, they must understand their rights and the means for claiming
them. For most people in a war-torn state, the laws and the formal justice system are alien
institutions they fear or do not understand. Legal awareness helps counter this misunderstanding
and promote access to justice. Legal awareness campaigns can be conducted by the state but they
are most effective when conducted by civil society at a grassroots level or through the
media. Because providing information to huge populations is a significant challenge, trusted and
familiar social networks (i.e., community-based formal and informal networks) can be used to
enhance legal awareness efforts Legal awareness of suspects and the accused should also be
promoted. Messages should be in local languages and should take into account literacy rates.2

2.Basic principle of Access to Justice

1.Accessibility: Accessibility requires that all justice systems, both formal and quasi judicial systems are
secure and physically accessible to all the people.
2.Affordability: all justice system should be economically affordable.
3.Acceptability: The justice system should be linguistically acceptable with local language proceedings or
provision of interpretation.
4.Availability: Availability requires the establishment of courts and other quasi-judicial or other bodies
across the State both urban, rural and remote areas, as well as their maintenance and funding;

Every individual has a fundamental right to access justice, which is a key component of the rule of law. No
one can be prevented from pursuing justice or expressing their rights to it since it is a fundamental
human necessity.
Every individual has a fundamental right to access justice, which is a key component of the rule
of law. No one can be prevented from pursuing justice or expressing their rights to it since it is a
fundamental human necessity. Every person has the legal right to equitable access to justice,
especially disadvantaged and marginalized groups. Every country should administer justice in a
fair and inclusive manner. Legal education, legal protection, adjudication, legal assistance,
enforcement, and civil society supervision are all components of access to justice. It promotes
peace by encouraging its people to provide a means of resolving interpersonal and governmental

2
https://www.lawinsider.com/dictionary/access-to-justice

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conflicts. It is crucial that all state agencies that are involved in dispute resolution keep working to
improve it.

The right to justice is guaranteed as a basic human right in Article 20 of the Nepalese Constitution.
Nepal has embraced several national legislation as well as international laws, including the UDHR,
ICCPR, ICPPED, and others, to ensure that justice is equally accessible to all of its residents.

After a decade-long armed war, Nepal's post-conflict period saw the introduction of several
transitional justice mechanisms to provide access to justice for those who had been harmed during
the conflict. In order to collect complaints from war victims, two distinct commissions—the Truth
and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced
Disappeared Person (CIEDP)—were created. the TRC Act and Rules, and the CIEDP Rules TRC
Act and Rules, CIEDP Rules were promulgated for access to transitional justice. These
commissions and related laws were established with an aim to provide reparation to the conflict
victims. Reparation, which not only refers to compensation but also restitution, rehabilitation,
guarantees of non- recurrence and satisfaction, is an important part of transitional justice as it
serves as a medium for comprehending past violation and the responsibility of the state for the
harm the victims have suffered. Although the commissions and laws were made for conflict
victims, no justice has been served so far. Repeated grant of amnesty and lack of investigation
have consequently delayed in providing reparation and compensation to conflict victims. The
presence of reparation provision in the Acts and Regulation provided a positive attitude towards
the conflict victims, nonetheless, the non- implementation of the said provision and delay in the
process of reparation holds loss in faith for the justice for conflict victims. Therefore, the
Government of Nepal should be able to comprehend the problem of conflict victim and prompt
the reparation process for prejudice justice3.

Despite having a good attitude toward conflict victims, the non-implementation of the
aforementioned rule and the delay in the restitution procedure have caused some people to lose
hope that the victims of conflict would receive justice. As a result, the Nepali government should
be able to grasp the issue of conflict victims and start the process of making amends for injustice.

3
https://www.ag.gov.au/legal-system/access-justice

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3.Importance of access to fair justice

• To fulfill the objective of the state to give justice everybody equally

• To make justice system more reliable and trustworthy
• To make the human rights enjoyable
• To bring vulnerable and disadvantage group in the mainstream of justice system
• To materialize state’s international obligation
• To materialize the concept of inclusion

According to Lord Neuberger there must be following condition for Access to

fair justice
• Competent and independent judiciary
• Accessibility of the courts
• Fair administration of justice
• Effective procedure
• Competent and sincere lawyers
• Affordable justice
• Effective execution of the judgement

4.International standards regarding access to justice

• Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him. Universal Declaration of Human Rights, 1948 Article 10

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 • All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law International Covenant on Civil and Political Rights, 1966, Article 14
• European Convention on Human Rights,1950, article 6,3(c)
• Convention on the Elimination of all form of Discrimination against Women, 1979, Article
2(c)
• Sustainable Development Goal article 16
• Constitution of Nepal Article 18, 20, 29,38, 39,42
• Legal Aid Act, 2054 and it regulation,2055
• senior citizen Act, 2063, section 10
• Children Act, 2075, section 25(e)
• Supreme Court Regulation, 2074, High court regulation, 2073, District court regulation
2075 etc

The U.S. Department of Justice reestablished the Office for Access to Justice (ATJ) as a
standalone agency in October 2021 to address the access-to-justice crisis in the criminal and civil
justice system. ATJ’s mission is to help the justice system efficiently deliver outcomes that are fair
and accessible to all, irrespective of wealth and status. ATJ is dedicated to improving the federal
government’s understanding of and capacity to address the most urgent legal needs of communities
across America. ATJ staff works within the Department of Justice, across federal agencies, and
with state, local, and tribal justice system stakeholders to increase access to counsel and legal
assistance and to improve the justice delivery systems that serve people who are unable to afford
lawyers4

ATJ is guided by three principles:

 Promoting Accessibility — eliminating barriers that prevent people from understanding
and exercising their rights.

 Ensuring Fairness — delivering fair and just outcomes for all parties, including those
facing financial and other disadvantages.

4
http://pdf.usaid.gov/pdf_docs/pnacp498.pdf

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Increasing Efficiency — delivering fair and just outcomes effectively, without waste or
duplication.

5.Institutional frame work for access to justice

• General courts: Supreme court, High court, District court
• Office of the Attorney General (office of public prosecutors)
• Nepal Bar Association
• Nepal Police
• Local level judicial committee
• Special Court
• Access to Justice Commission
• National Human Rights Commission and other NHRIs. Etc

6.Elements of Procedural Fairness

• Processing without undue delay : Applications should not be subject to unnecessary delays.
• The rights to fair and impartial decision-making : Applicants have the right to have a fair
and impartial decision-maker. The courts have indicated that it is necessary to avoid even
the possibility or perception of bias.
• Right to know the case against oneself
• The applicant’s right to be heard
• whoever hears must decide
• legitimate expectation: Decision maker should not decide the case before the given time to
the parties. And also after prolong delay
• Right to reasons: Clear and understandable reasoning of the decision should be given.
Losing party has the right to know in what reasoning s/he has been defeated the case.

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7.Bibliography
1. Justice and Rights Institute-Nepal (JuRI-Nepal)
2.Access to Justice: Need for Reforms /Mohdimran Law Society, Department of Law, Aligarh Muslim
University, Murshidabad Centre (W.B.)
3.access-justice-outskirts-hope Geoffrey a schooles ESQ

8. webliography
1.https://fwld.org/core-areas/access-to-
2.justice/#:~:text=Access%20to%20justice%20comprises%20of,and%20political%20issues%20and%20d
isputes.

3.https://www.countycourt.vic.gov.au/files/documents/2018-08/factsheet-5-processes-and-principles-
justice.pdf
4.https://www.ag.gov.au/legal-system/access-justice

The End

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