November 2007

Access to Justice: A Higher Law

The declaration of a state of emergency invoked in Pakistan this Saturday has reminded the world again of the critical and fundamental role that the justice community plays in sustaining individual freedoms and limiting abuse of power by the state.

General Pervez Musharraf’s declaration of emergency rule two days ago has resulted in the suspension of the country’s constitution, shuddering the Supreme Court and placing the chief justice under house arrest.  Since the emergency declaration a large number of politicians, lawyers, and religious leaders have been arrested in overnight raids in different parts of Pakistan.  The president of the Supreme Court Bar Association was among the first to be arrested and several other political leaders have also been detained.

The New York Times reported that “dozens of police officers surrounded the Supreme Court building with some justices still inside.  The justices were ordered to take an oath to abide by a “provisional constitutional order” that replaces the country’s existing Constitution. Those who failed to do so would be dismissed. Seven of the court’s 11 justices gathered inside the court rejected the order.” Pakistani police officers have attacked thousands of protesting lawyers in the city of Lahore. Hundreds of lawyers have been arrested.

This is not the first time a world leader has gained or retained control through the dismantling of a nation’s justice system and it will not be the last time it is attempted.  When laws are set aside the possibility of injustice and atrocity upon those in minority positions becomes an actual danger and the state is no longer held accountable for its actions.  For a regime to achieve such levels of power the judges and lawyers, charged with maintaining the checks and balances of the law, must be the first to go.

The Judges' Trial before the Nuremberg Military Tribunal in 1947 addressed the role of the justice community in such a time of crisis.  The defendants in this trial were 16 German jurists and lawyers including prosecutors and judges.  Count two of the indictment against the defendants charged “War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder of private property.”  Some of the defendants were imprisoned, some were acquitted and one committed suicide before the beginning of the trial.

A jurisprudential perspective of history indicates that it is through the protections afforded by law that individual freedoms are maintained and the abuses of power by those in charge are held in check. It is one of the critical goals of constitutional law to protect the rights of the individual against the state.  Since the Magna Carta of 1215, arguably the seed of modern constitutional law, the world expects that the king respect certain legal procedures and adhere to law.  Most notably, this early charter provided the citizen with the right of Habeas Corpus against unlawful imprisonment. Reports differ in the number of Pakistani citizens imprisoned these past few days ranging from a few hundred to several thousand.  
     
It is of great concern for all nations when one nation begins to fall and stumble from the rule of constitutional law.  It shows the importance of protecting access to justice in every society. 

Here in Arkansas there is a different threat to the justice system – one of inaction rather than action.  The challenge to the American ideal of “justice for all” is the fact that one in five (1 in 5) Arkansans are poor enough to qualify for legal aid but when legal troubles arise these people often cannot afford an attorney because there is no “civil Gideon”.  The practical results of not having an advocate in our justice system range from continued domestic violence to home foreclosure and homelessness.

In the United States fortunately, it is a matter of the continual evolving of our justice system.  The American Bar Association has called for establishing the right of civil legal counsel for all low income Americans.  This is an issue your Arkansas Access to Justice Commission will be examining over the coming years.  It is not as dramatic as what we are seeing now on the streets of Pakistan, but its human consequences are all around us as they challenge the high ideals of our system of justice.

 

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