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Equality and access to justice

At a time when poverty issues could be easily submerged and made to suffer benign neglect in the wake of successive governments' grandiose development plans, no less a legal figure than Attorney General K. C. Kamalasabeysan PC has had the foresight to draw the attention of the State and the public to the enduring link between a citizen's economic standing and his ability to acquire equal representation in a court of law.

As rightly pointed out by the Attorney General in a recent address to mark Legal Aid Day, the entrenched constitutional clause of equality would prove meaningless if one is not in a position to obtain equal representation in a court of law on account of one's financial inability to acquire the services of a proficient lawyer.

The Attorney General drew our attention to the services being rendered by organisations such as the Legal Aid Foundation, to enable the economically disadvantaged to obtain legal representation in courts of law at times of litigation. Needless to say, we have a long way to go in this direction because the majority of poor litigants are not in a position to pay the usually prohibitive lawyers' fees - some efforts at rendering legal assistance notwithstanding.

In this situation, the public couldn't be faulted for continually perceiving "justice" as being only for the wealthy - that is, those sections of society which possess the financial means to hire the services of the most proficient lawyers who could ably and doughtily fight their cases. The poor, on the other hand, have no choice but to endure the cruel blows of "fate" on account of their inability to hire the services of lawyers.

This situation, then, is a graphic illustration of the well-known theoretical premise that it would be futile to contemplate equality of any kind without first providing economic equality. With the expansion and spread of the market or "open" economy and the corresponding contraction of the welfare state, one could expect the poor and the less privileged to be more impoverished and dispossessed and, therefore, less able to obtain "justice" in a court of law, unless legal reforms ensure purse-easy legal fees or easily accessible legal assistance. The latter are tasks for the State and those sections of the legal community which are concerned about social justice but one shouldn't be surprised if such assistance is hard to come by, as the market economy relentlessly unfolds and its cold logic of "everything at a price" is felt in almost every quarter.

In fact, it is the experience of most sections that today's legal charges are a heavy drain on one's purse. In some cases they have proved a source of steady impoverishment. So, it could be correctly conjectured that the fundamental rights cases which are increasingly coming before the superior courts today are only the proverbial tip of the ice berg.

The quantum of such cases which are not surfacing on account of the financial disabilities and impoverishment of would be litigants, is left to be soundly assessed.

This is a pity because the increasing adjudication of human rights cases by our superior courts has emerged as a strikingly positive feature of the administration of justice system. However, the aggravating poverty problem and the widening chasm between the rich and the poor are bound to slow down the administration of justice process, thus reducing the concept of equality to a dead letter in the law.

Complacency on this score could prove suicidal. With the rolling-up of the welfare state, not only have more and more persons been thrust into the benighted land of the pauperized but more and more citizens have been exposed to arbitrary, harmful action by some sections of the State. Thus could be created a vast reservoir of discontentment which in turn would pose a threat to the State and democratic rule.

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