What is access to justice when the legal and the political are tightly intertwined?

 By Éloïse Ouellet-Décoste

When I was still in Cambodia, I was not sure how I could draw on my experience to discuss access to justice and  legal empowerment. With a partial judiciary controlled by the executive and no effective law enforcement, the  majority of Cambodians do not only feel disillusioned by formal institutions or distrust the legal system; they  fear the law.

With a bit of distance from the field, I now realize that I too quickly equated access to justice with courts. But  beyond the ability to use courts to further one’s interest or resolve conflicts, access to justice is ultimately about overcoming injustices. So how did the victims of human rights violations LICAHO works with understand justice?

In a country were injustices (forced eviction, land grabbing, extortion, exploitation etc) are widespread and often perpetrated by the authorities, justice means at the least respect for people’s basic rights. Cambodia’s law and its Constitution are quite progressive, especially if compared to other countries in the region. The problem is that the judiciary interprets very liberally the laws to suit the interests of those in power, while ignoring the rights drafted to protect the interests of the poor. For example, the 2001 Land Law comprises a series of provision protecting landowners from forced eviction, requiring compensation for expropriation for public interest purposes and provides for mechanisms to acquire property rights via non-violent occupation. But these provisions are not applied. Meanwhile, the penal provisions of the 2001 Land Law, notably illegal occupation of private property or destruction of private property, are repeatedly deployed against communities using non-violent resistances against land grabbing and/or forced evictions.

In such a context, legal empowerment is necessary in order for these communities to know the rights they have and understand the recourses that exist. But awareness to the law and to one’s rights has its limits. Reducing one’s understanding of legal empowerment and access to justice to the use of formal law and processes (as suggested by Eisenberg et al. in their study of litigation and well-being in India) is inevitably counter-productive, because it fails to take into account corruption and elite capture of state institutions. The danger of focusing on legal approaches is the depoliticization of social injustices. When there is no political will to strengthen legal institutions and uphold people’s rights, then the legal avenue soon comes to a dead end.

For example, during my internship, a community activist representing villagers in a land dispute was charged with incitement under the new Penal Code after filing a complaint against the corporation that was illegal clearing their farm lands. What can legal empowerment achieve when those who seek to defend their rights are meet with violence and threat perpetuated through the judiciary?

The partiality of the judicial system is a significant barrier to legal empowerment and access to justice, especially where the court system becomes a political tool for the government to pursue its agenda and repress opposition and human rights activism. In his article, Banik talks about the perception of legal empowerment as a zero-sum game. Redressing imbalances is often perceived as undermining the dominance of the elite. Perhaps it does not have to be so, but, in Cambodia, I definitively experienced this perception. The elites are pursuing a campaign to undermine the work of human rights defenders. By controlling mass media, the ruling party (in power for over 20 years now) actively seeks to maintain ignorance in the population. Human rights defenders presenting alternative narratives and highlighting the abuses perpetrated or concealed by the authorities are perceived as threats to the dominance of the elites. Consequently, the authorities not only violate human rights, but also actively go after those who seek to promote and protect them.

Therefore, citizens find themselves at the mercy of the justice system, rather than feeling that it is a viable avenue through which to claim their rights and resolve disputes. Faundez rejects the idea that poverty is the consequence of the absence of legal protective mechanisms. In a place like Cambodia, I do not think it is either realistic or desirable to expect that improving people’s knowledge of the law and strengthening the law and legal processes is sufficient to truly foster justice. Without tackling the structural causes of poverty and socio-economic disparity and fully taking into account prevailing political, social and economic conditions, I doubt social transformation can occur in places like Cambodia were corruption is endemic and political and economic power tightly intertwined. The legal cannot be addressed in isolation from the political. Consequently, legal approaches can only be an effective tool of social transformation if complemented by extralegal activism and self-help initiatives.

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