Author: Brian Sanya Mondoh, Qualified as a Barrister in England and Wales, Trainee Attorney-at-Law, Trinidad and Tobago
The Bar Council (UK) recently conducted a survey into public attitudes towards the justice system in England and Wales and it was established that ‘Justice’ is as important to most people as health and education. The survey of 2,086 people also revealed an alarmingly widespread belief that justice favours the wealthy.
On a global scale and in most jurisdictions, it is often agreed that there is a close interrelationship between justice, the Rule of Law, socioeconomic rights and civil liberties. Therefore, justice, its accessibility and/or lack of is a subject that warrants consideration at great length and needs heavy involvement from all quarters, especially the millennials.
Academic commentary suggests that historically, people did not understand the law. Critics suggest that law was used to entrench privilege, discriminate against people by race, class, and color and simply did not serve the locals interests. Presently, and as the Bar Council’s statistics suggest, it appears that people care about the law but it remains a mystery as it does not serve their interests and politicians do not prioritise it as they should. The legitimacy of the law ought to be centered on the needs of the people. Thus, before the law can be understood and/or accepted, the lawmakers ought to understand the type of society they want to construct and how they want people to relate and live with each other! In essence, the law is meant to reflect society and to engineer society.
Potential litigants are often put off by the high cost of access to justice and/or lack of more affordable and faster means of seeking legal redress. In addition, there is public distrust in the justice system due to political interference and sharp practice by some lawyers, which drastically diminishes public confidence in the profession. Legal drafting in some jurisdictions is also quite wanting and tends to alienate people. Some lawyers and draftsmen are still caught up in ‘traditional legalese’ i.e. archaic legal language and phrases that ought to be drafted in plain language! Plain language meaning using the simplest and most straightforward language possible in the circumstances.
Beyond this, the rise in court fees and cuts to legal aid are crippling the wheels of justice. Recently, the UK government cut off legal financing by £300million and in my home country, Kenya, the judiciary’s budget was capped at Sh50 million (about £380,000). This was 0.57% of the country’s 2018/19 budget for the year. An allocation way below, the 2.5% “recommended global percentage”. To remain robust and to ensure the proper administration of justice, the courts need to be adequately funded and supported!
It is submitted that courts in the UK and Commonwealth countries such as Trinidad and Tobago amongst others in the CARICOM try to act in accordance with the ‘Overriding Objective’ i.e. dealing with cases justly and at proportionate cost. Other elements of the objective include saving expense and ensuring that cases are dealt with expeditiously and support the use of Alternative Dispute Resolution (ADR). Encouraging the use of ADR requires strong judicial and practitioner support as it ensures an appropriate and effective allocation of finite court resources.
In sum, judicial systems and norms are evolving everyday and the public needs to be made sufficiently aware that having their ‘day in court’ is not the only way of achieving justice i.e. justly and at a proportionate cost. As such, practitioners, legal aid and pro bono agencies should encourage parties to try out ADR as it may be the most appropriate or effective process to address disputes in a relatively simple and cost-effective way. Further and to an extent, some types of ADR are flexible and informal thus allowing the parties to retain complete control of the outcome and to resolve problems in a humane and principled fashion.
- Justice as Important as Education and Health -https://www.barcouncil.org.uk/media-centre/news-and-press-releases/2018/october/justice-as-important-as-education-and-health,-say-public/?fbclid=IwAR2uS8FiAc612FkfjqsS6TDaeQUdkRJhEReuMG24RZ8QGRVmX72OiwlncSc
- Whose Constitution? Law, Justice and History in the Caribbean – Professor Richard Drayton PhD FRHistS
- The Westminster Model? A Commonwealth Caribbean Perspective” in Meeting of Law – Ralph Carnegie ”Floreat
- Waiting to Exhale: Commonwealth Caribbean Law and Legal Systems Rose-Marie B. Antoine
- The Jackson ADR Handbook 2nd edn- Professor Stuart Sime et al
- Drafting Manual, 18th edn – David Emmet
- Budget: no end to austerity for justice – https://www.lawgazette.co.uk/law/budget-no-end-to-austerity-for-justice/5068121.article
- Budget cuts hit Kenya’s judiciary – but there’s no ‘global funding target – https://africacheck.org/reports/budget-cuts-hit-kenyas-judiciary-but-theres-no-global-funding-target/
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