Access to justice - the difference between law and justice

Mauritian lawyer, political activist and friend Jean Claude Bibi was interviewed by the l'express on this subject in 2012.  It's a clear statement of the difference between law and justice and demonstrates that the struggle for justice is indeed international. JCB is referring to the Mauritian system.  It should be remembered that legal aid has been cut savagely by the UK Government.  It would be good if someone could blog about the impacts of those cuts.  JCB says:

 

"Before dealing with your questions I wish to observe that there is widespread confusion regarding the concepts of law and justice. Most people including many lawyers believe that  "le droit (law) and "la justice" are more or less the same and/or equivalent. Hence a court of law in France is called "le Palais de la Justice" even though more often than not litigants (specially those who lose) are far from happy with its legal decisions and refuse to accept that it has done justice to the case.

 

This confusion seems to be deliberately maintained by the powers that be. Whilst it is true that it may happen, often by sheer coincidence, that a decision of a court of law may seem from the perspective of a victim to be "justice", in reality the two concepts of law and justice are widely far from each other and have no common origins.

 

To put it briefly, often the law pretends to be just. More often, what is believed to be just by many seldom becomes law.

 

This preamble seems to me necessary since your questions refer to our "systeme judiciaire" and the term" judiciaire " unfortunately implies it is meant to dispense justice when in reality it administers and interpretes law in a closed system, closed because it is enclosed within  an encircling mesh of vested economic, social,cultural and political interests hostile to fundamental or radical change. 

 

Such a mesh of interests have a lot do with law. Indeed law is one of several instruments used to protect and maintain specific and identifiable interests. Law is even used to prevent necessary change that would be regarded by many as economically, politically and socially just.

 

It would be presumptuous of me as a lawyer to claim that I practise "justice". Just as other lawyers, I simply practise law. Justice, specially social justice, is quite another matter, a much grander and, philosophically, a much more significant perspective that our courts of law keep far away from whilst simultaneously posturing to be Justice's most ardent defenders.

 

After this precautionary note, I now deal with your questions.

 

The main obstacles to access the judicial system? Poverty/meager financial resources.  The judicial system is broadly divided in two: criminal and civil.  There is hardly any difficulty for the poor/ordinary citizen (ti dimunn) to have access to what you call "les services" of the criminal judicial system. It can be said they have too much "access" as accused parties or as victims of theft, of violence, of dangerous driving etc.  Yes, the Bail Court has for some time been giving consideration to the financial means of an accused when determining the quantum of bail.

 

As regards the civil courts, it is quite true that the expenses involved in a civil action are quite high when we consider the level of income of most citizens. Yet, it does not seem that high costs prohibit many to file civil complaints in respect of any imaginable incident. We seem to be a very litigatious people. Almost like Americans.

 

Appeals? While appeals represent additional costs, it is very rare that litigants or accused parties give up because of this. Litigants, and those who are convinced, as most are, that they should win, tend to go all the way.  Yes, appeal to the Privy Council is very expensive. But as you observe, there are more ways than one to raise money. The issues involved may make it possible to have access to money. Not every case can go to the PC. Often leave has to be obtained from the Supreme Court.

 

Legal aid (in Mauritius) is available for both civil and criminal cases. For example at Azzizes, there is no difficulty to get legal aid. Check with Supreme Court for conditions attached to legal aid. Of course low or no income ensure provision of legal aid.  Quite a few experienced and capable lawyers agree to take legal aid cases. I do not know of any case where lawyers have refused. Barristers also do pro bono work.

 

Justice a 2 vitesses (speeds)?  I refer you to my preamble since you use the term "justice" when in reality we are dealing with law and its complex and convoluted mechanisms.  Can we realistically claim that the realities of a class society render everybody "equal under the law"?  A key dimension of societies is the distribution of power and how to keep the powerful in check under the law is a continuous problem. Laws operate mostly within a State and it can be observed that States and its agents repeatedly violate the law (and common sense notions of justice) violently and far too often with impunity. 

 

Torture occurs in dictatorships and democratic states alike.  Witness the illegal and unjust treatment meted out to the people of Diego Garcia by democratic Britain.  No general from the Pentagon, no US president is ever prosecuted for war crimes.  Apartheid was law in South Africa.  Equality under the law? More a slogan than a real principle.

 

I have to repeat myself: do not confuse law with justice and then you will see that law has more than 2 vitesses. It can have 5 or 6 and even "march arriere". As in a car. Yet, more often than not, it is repetitively automatic. Again, just like another car.

 

Interview with Gilles RIBOUËT, l’express iD

Oursins st., Tombeau Bay -Mauritius +(230) 206 84 51 / +(230) 910 14 48 www.lexpress.mu

 

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