Access to Justice is Crucial for Tackling Poverty: Says the UN Special Rapporteur on Extreme Poverty and Human Rights

The United Nations Special Rapporteur on Extreme Poverty and Human Rights, Ms. Magdalena Sepulveda Carmona, has called for greater respect for the human right to access to justice for the poor. In her Annual Report, submitted to the General Assembly, she noted that “[A]ccess to justice is crucial for tackling the root causes of poverty, exclusion and vulnerability” and that “Persons living in poverty have a right to access justice without discrimination of any kind, and a right to due process, understood as the right to be treated fairly, efficiently and effectively throughout the justice chain.”

Indeed she noted that “[S]tates have assumed obligations in that regard, by committing themselves to respect, protect and fulfil several rights such as the right to an effective remedy.” She referred to Article 8 of the Universal Declaration of Human Rights, Article 2.3 of the International Covenant on Civil and Political Rights, Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination among a host of international treaty-provisions. She also clarified that access to justice “entails more than improving access to judicial and adjudicatory mechanisms. It also implies that remedies must be effective and legal, and that judicial outcomes must be just and equitable.”

The Report elaborates on this and posits that:

“States must also take positive measures to ensure laws and policies are substantively non-discriminatory, including measures to eliminate conditions which cause or help to perpetuate discrimination…To ensure that the poor have de facto enjoyment of the rights to an effective remedy, equality before the courts and a fair trial, States must take effective measures to remove any regulatory, social or economic obstacles that impede or hamper persons living in poverty from accessing remedies and securing a fair and equitable outcome in any judicial or adjudicatory process. This includes removing obstacles imposed by the unequal economic or social status of those seeking redress, taking into account the principles of equality before the courts and equality of arms, which are integral parts of due process.”

Judicial Review of Policies

One of the most critical aspects of this Report is the Special Rapporteur’s view on judicial review of administrative decisions and social policies that impinge on basic rights of persons living in poverty.

The Report states

“The lack of remedies for the negative impacts of social policy in the areas of health, housing, education and social security, or for administrative decisions relating to welfare benefits or asylum proceedings, often results in inability to seek redress in cases of violations of key human rights, such as the right to equality and non-discrimination and the right to social security… The lack of judicial review or complaints mechanisms for social policy, compounded by a lack of justiciability of economic, social and cultural rights at the domestic level, creates the perception that social policy is a charitable measure rather than part of an obligation to ensure the enjoyment of human rights.”  

Legal Identity and Access to Justice

The Report also draws attention to the lack of legal identity as a major disability for persons living in poverty. The Report acknowledges that “the right to be recognized as a person before the law is a fundamental human right (International Covenant on Civil and Political Rights, art. 16, and Convention on the Rights of the Child, art. 7), and is at the core of the right to access justice. Many persons living in poverty are de facto deprived of accessing courts and other public services as they lack legal identity…Without recognition, individuals are unable to access social services or to access courts to seek remedies for violations of their human rights.”

This reiterates the recommendations of the UN Commission on Legal Empowerment that had opined that the lack of formal legal identity is an important barrier against access to justice for poor.

The Report also referred to the adoption of Guiding Principles on Extreme Poverty and Human Rights by the UN Human Rights Council through Resolution 21/11 earlier on September 27. The Guiding Principles and the Human Rights Council Resolution is available here.