The rights of access to justice UNDP s approach and vietnamese perspective

VIETNAM NATIONAL UNIVERSITY
SCHOOL OF LAW

TRAN THI ANH HONG

THE RIGHTS OF ACCESS TO JUSTICE:
UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE

MASTER THESIS

HA NOI - 2020


VIETNAM NATIONAL UNIVERSITY
SCHOOL OF LAW

TRAN THI ANH HONG

THE RIGHTS OF ACCESS TO JUSTICE:
UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE
Specialized in Law on human rights
Code No.: 8380101.07

MASTER THESIS

Supervisor: A/Prof. VU CONG GIAO

HA NOI - 2020


STUDENT DECLARATION

I, Tran Thi Anh Hong, declare that this Master thesis is my work.
The figures, references, and examples are accuracy, honesty.

Student

Tran Thi Anh Hong


ACKNOWLEDGEMENTS
With great joy, have I written this thesis, but I could not have done it all
by myself. Special thanks to A/Prof. Vu Cong Giao, I could not wish a better
instructor, who always by my side inspires me ―do not give up, do not give up‖.
His willingness to help students, have face-to-face meetings for discussions
with every step of my research, has helped me complete my thesis.
Special thanks also to the School of Law, where we are always welcome.
Thank you, the Government of Australia, that has sponsored the postgraduate
program of human rights, supporting us the diversity of learning materials and
seminars relating to human rights.
At last, but certainly not least, my family and friends, who always encourage
me to move on.
STUDENT

Tran Thi Anh Hong


TABLE OF CONTENTS

Student declaration
Acknowledgements

Table of abbreviations
List of figures and tables
PREFACE ........................................................................................................ 1
CHAPTER 1: THEORETICAL ASPECTS OF THE RIGHT TO
ACCESS TO JUSTICE ...................................................................... 7
1.1.

The conception of Justice and the Right to Access to Justice ......... 7

1.1.1. Conception of Justice ............................................................................ 7
1.1.2. Conception of the Right to Access to Justice ..................................... 10
1.2.

Characteristic and connotation of the Right to Access to Justice ....... 14

1.3.

Methods to ensure the Right to Access to Justice .............................. 17

1.4.

The Role of the Right to Access to Justice ...................................... 21

1.5.

The Right to Access to Justice in International Law ..................... 23

Conclusion of Chapter 1 ............................................................................... 27
CHAPTER 2: THE RIGHT TO ACCESS TO JUSTICE FROM
UNDP’S APPROACH ...................................................................... 28

2.1.

An overview of the Right to Access to Justice from
UNDP’s approach ............................................................................ 28

2.2.

Elements that ensure the right to access to justice from
UNDP’s approach .............................................................................. 34

2.2.1. Legal Protection .................................................................................. 34
2.2.2. Legal Awareness ................................................................................. 39
2.2.3. Legal Aid and Counsel........................................................................ 43
2.2.4. Adjudication ........................................................................................ 49
2.2.5. Enforcement ........................................................................................ 56


2.2.6. Civil Society and Parliamentary Oversight ........................................ 59
Conclusion of Chapter 2 ............................................................................... 62
CHAPTER 3: SITUATION AND SOLUTIONS TO PROMOTE
THE RIGHT TO ACCESS TO JUSTICE IN VIETNAM:
ANALYSIS FROM UNDP’S APPROACH.................................... 63
3.1.

An overview of the Vietnamese legal system related to ensuring
the right to access to justice.............................................................. 63

3.2.

Elements that ensure the right to access to justice in Vietnamese

law: Analysis from UNDP’s approach ............................................ 65

3.2.1. Legal Protection .................................................................................. 65
3.2.2. Legal Awareness ................................................................................. 68
3.2.3. Legal Aid and Counsel........................................................................ 69
3.2.4. Adjudication ........................................................................................ 72
3.2.5. Enforcement ........................................................................................ 74
3.2.6. Civil Society and Parliamentary Oversight ........................................ 78
3.3.

Shortcomings and limitations in ensuring the right to access
to justice in Vietnam ......................................................................... 80

3.4.

Solutions to ensure the right to access to justice in Vietnam
following UNDP’s approach ............................................................ 88

3.4.1. Strategic Solution ................................................................................ 88
3.4.2. Specific Solution ................................................................................. 90
Conclusion of Chapter 3 ............................................................................... 92
CONCLUSION .............................................................................................. 93
REFERENCES .............................................................................................. 94


TABLE OF ABBREVIATIONS

UNDP:

United Nations Development Programme

ICCPR:

International covenant on Civil and Political rights

ICESCR:

International Covenant on Economic, Social and Cultural Rights

ICT:

Information and communications technology

MARG:

Multiple Action Research Group‘s

MDGs:

Millennium Development Goals

MDGs:

Millennium Declaration Goals

NGOs:

Non-government organizations.

NHRIs:

National human rights institutions

OECD:

Organization for Economic Cooperation and Development

SDGs:

Sustainable Development Goals

SIDA:

Swedish International Development Cooperation Organisation

UDHR:

Universal Declaration of Human Rights

UNICEF:

United Nations Children‘s Fund

UNODC:

United Nations Office on Drugs and Crime

WJP:

World Justice Program

LIST OF FIGURES AND TABLES
Table 3.1:

Public opinion about local governance ....................................... 79

Figure 3.1: Social group analysis, guarantee of fundamental rights ............. 67
Figure 3.2: Vietnam‘s factor scores in WJP 2020 ......................................... 81
Figure 3.3: Vietnam‘s disaggregated scores for each of the sub-factors
in WJP 2020 ................................................................................ 81


PREFACE
1. The urgency of the research topic
If people break their arms, they probably go to a hospital. If they have a
persistent cough, they might go to a doctor or a medical clinic. However, if
they have a legal issue, such as an inheritance dispute, or a land dispute; in
those cases, where people can solve their problem and how people can afford
the services they need? Access to justice can help us answer that question.
Access to justice is commonly known as the ability to use the legal system to
plan their lives and resolve disputes.
Justice is a concept that appears very early in human history, which
exists in most human civilizations, ethnic traditions, and considers in various
angles and aspects. Access to justice is a fundamental human right and an
indispensable tool to protect other human rights. Justice and access to justice
are essential for a fair society, which is the necessary condition for people to
achieve freedom and happiness, so ensuring access to justice is also the top
task of each country.
The feudal society of Vietnam recognized people‘s aspirations about

the right and justice by criticizing injustice, criticizing social inequality,
condemning the bad habits of the state machine. The aspiration to burn a true
justice of the Vietnamese people was also shown at the ―Judgment of the
French Colonial Regime‖ by Ho Chi Minh: ―In Indochina, there are two types
of justice. One for the French, one for the native. The French are judged as in
France. The Annamese have no jury, nor an Annamese lawyer. Usually, the
judge hears the judgment and verdicts the verdict in the absence of the
defendant. If the Annam and the French get a lawsuit, the French are always
right, even though this guy robs or kills people‖ with the exposing the male‘s
trial to the south (no jury council, no attorney, no accused, etc.). When
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claiming justice to the colonial countries in Indochina mentioned above, he
also asserted: “The justice of the people of Vietnam is independent and free”.
International law notes access to justice is both - a fundamental right
and a tool to protect other human rights. In a sense being a fundamental
human right, access to justice is regulated in the national legal system, tied to
the personal demands of judicial remedies for the violation of rights in that
country's jurisdiction. With the meaning of a tool to protect other human
rights, access to justice is an essential solution for individuals to have the
opportunity to protect their rights.
Access to justice becomes a key goal in the mission of UNDP to alleviate
poverty, resolve conflicts, and strengthen state governance. UNDP emphasizes
the need to focus on the ability to seek and provide remedial measures for injustice,
especially for poor and disadvantaged people, including women, children, ethnic
minorities, people living with HIV/AIDS and disabilities.
In the contexts of COVID – 19, the economic fallout of the crisis will
put many groups in society further behind. The impact of the crisis as well as
the legal and policy responses developed by states to counter the spread of

COVID-19 have much wider ramifications that affect a broad range of human
rights, including the ability of people to access justice in a timely, fair, and
effective manner. The crisis also presents specific justice ‗needs‘, such as
addressing the rise in gender - based violence and making additional institutional
reforms to strengthen the effectiveness of the justice chain in a radically
shifted social context [32].
In Vietnam, justice is a crucial goal of socialism, so justice and justice
access requirements are as urgent as the foundation of idealism and direction
for all social policies. However, Vietnam has not yet had many research

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arguments regarding access to justice and the compatibility between Vietnamese
law and international law in ensuring access to justice. So the author boldly took
the topic “The Rights of Access to Justice: UNDP’s Approach and Vietnamese
Perspective” as a master of jurisprudence specialized in law on human rights.
2. Literature review
Access to justice has received the interest of many scholars in the
country and international organizations. On the international presence, so far
there has been many projects, intensive research, diversity, such as: UNDP‘s
studies, UNICEF‘s, the World Bank‘s, WJP, or SIDA‘s, etc.
In Vietnam, many research works on justice and the right to access to
justice have been translated or published, substantially to the:
- Justice: What’s the right thing to do, Michale J.Sandel, translation of
Ho Dac Phuong, Tre Publishing House, 2015.
- The Philosophy of law: A concise introduction, Raymond Wacks,
translation of Pham Kieu Tung, Tri Thuc Publishing House, 2011.
- Implementing judicial rights to ensure access to justice in the state of
law, Dinh The Hung, Journal of State and Law, No. 5/2010.

- Ensuring access to justice, the right to the legal assistance of persons
with disabilities, Vietnam’s compatibility with international law, Tran Thai
Duong, Jurisprudence Journal No. 10/2014.
- Strategies for judicial reform to protect justice in Vietnam, Nguyen
The Anh (2015), Master‘s thesis, Law Faculty, Hanoi National University.
- Justice and access to Justice, Hong Duc Publishing House.
- Michael J. Sandel (2010), Justice: what’s the right thing to do, New
York: Farrar, Straus and Giroux.
- UNDP (2016), 2015 Justice Index: Towards a justice system for the people.

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- UNDP (2013), Justice Index: Assessment of Distributive Justice and
Equality from a citizen – based survey in 2012.
- UNDP (2004), Access to Justice, Practice note.
However, on the aspect comparing the compatibility level of Vietnam‘s
access to justice with the viewpoint on access to justice of UNDP, there is no
comprehensive research in Vietnam, and the system on this topic is released.
3. Research Objective and Tasks
3.1. Research Objective
Analysis of Access to Justice Approach of the UNDP and Vietnam‘s
perspective and assess Vietnamese law and international law‘s compatibility
on access to justice. The author proposed solutions to complete the assurance
of access to justice in Vietnam.
3.2. Research Tasks
The thesis will address the following specific tasks:
First, clarify the theoretical issues of access to justice, the generalization
of the characteristics, contents, roles, and methods of assurance of access to
justice; simultaneously, consider the position of access to justice in the international

legal system of human rights.
Secondly, the study clarified the factors that secured access to justice in
the UNDP perspective: legal protection, legal awareness, legal aid and
counsel, adjudication, enforcement, civil society, and parliamentary oversight.
Third, the Vietnamese legal system‘s overview of ensuring access to
justice assesses the level of compatibility and protection of Vietnam with the
factors ensuring access to justice in UNDP‘s opinion.
Fourth, covering the existence and limitations of Vietnam concerning
the factors that ensure access to justice in the UNDP‘s opinion, thereby
offering complete solutions.

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4. Research Subject and Scope
4.1. Research Subjects
The study was conducted on the theoretical issues of access to justice,
the factors ensuring access to justice in UNDP‘s opinion, the compatibility
level of the law of Vietnam for these factors.
4.2. Research Scope
Access to justice is a general topic that needs to be researched in a
variety of fields. At the subject, the thesis focuses on the access to justice in
UNDP‘s opinion and the level of compatibility of Vietnamese law with the
factors that ensure access to justice in the opinion of UNDP.
5. Research Methodology and Methods
5.1. Research Methodology
The thesis uses the methods of parenteral and the historical artifacts of
Marxism, in conjunction with specific methods such as analytical methods,
comparisons, and interpretation. The thesis uses the methods of parenteral and
the historical artifacts of Marxism, in conjunction with specific methods such

as analytical methods, comparisons, and interpretation.
5.2. Research Methods
The method of analysis – synthesis is the method of the study of the
focus of the thesis, which combines the analysis of theoretical and practical
issues along with other methods of Marxism as the comparative method,
statistical method.
Besides, the historical method is used at the thesis in the study, research,
evaluation, comparison of the views on justice through materials collection, the
view of access to justice according to UNDP and Vietnam.
Sources of data used are excerpted from assessment reports on UNDP‘s
Justice Index, World Justice Projects, and the author‘s social investigation.

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6. The contribution of this research
The thesis provides in-deep analyses of theoretical, legal, and practical
aspects of the right to access justice in Vietnam compared to the UNDP
approach, which promotes this critical right in practice in the country.
This thesis can be used to reference state agencies in the construction
and implementation of relevant legislation. It can also be used as a reference
for teaching activities, research in the School of Law, Hanoi National
University, and other law schools in Vietnam.
7. Thesis structure
- Chapter 1: Theoretical aspects of the right to access to justice
- Chapter 2: The right to access to justice from UNDP‘s approach
- Chapter 3: Situation and solutions to promote the right to access to
justice in Vietnam: Analysis from UNDP‘s approach.

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CHAPTER 1
THEORETICAL ASPECTS OF THE RIGHT TO
ACCESS TO JUSTICE
1.1. The conception of Justice and the Right to Access to Justice
1.1.1. Conception of Justice
―The law is the art of goodness and justice‖ (Jus est ars bony aequi).
So what is Justice?
According to the Vietnamese Words and Languages Dictionary (Ho
Chi Minh City General Publishing House, 2006), “Justice is the right awareness
and respect for everyone’s legitimate rights.”
From the dawn of human society, the general discussion of Justice is
found in philosophy, sociology, politics, and the law‘s study and application.
The concept of Justice is strengthened, renewed, and changed according to the
length of human history.
A Greece philosopher Socrates (470-399 BC) believed that it is better
to be unfairly treated than to commit unjust, and if you have committed a
crime, condemned is much better than escape [36]. Since being writhed under
insult or unendurable physical pain, we are still honest and guiltless people,
but those who unfairly treat us are evildoer; on the contrary, if we deliberately
cause harm to others, we will be guilty, and others are honest. Socrates
explained: people who commit crimes like those who suffer from internal
diseases, are they better discovered by a doctor and then cut off the cure, or
are they not detected or cured better? According to Socrates, happy is not
about heaping up a tremendous amount of money and honor reputation, but
caring about wisdom, truth, and the most remarkable improvement of the
soul, respecting Justice.

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Aristotle (384-322 BC), one of the most prominent political philosophers
in history, argued that Justice is about equal treatment with equal and unequal
people to those who are not equal, based on the difference in their status. He
believed Justice was to give people what they deserve. In Aristotle‘s society,
civil rights are reserved only for the upper classes; slaves and farmers are
forced to work due to their poor life. For Aristotle, Justice is a matter of
choosing to give people a role that matches their virtues and positions.
Therefore, he protected slavery because slavery was a social role that suitable
for some people.
Immanuel Kant (1724 - 1804) supposed that justice is derived from an
imaginary social contract (or unrealistic social contract). He believed: Basing
on a group of people to agree on a social contract or constitution in the past is
not enough to make that social contract or constitution fair so that existence
could only be an imaginative collective agreement. In his view, a fair
constitution aims to harmonize each individual‘s freedom with the freedom of
all others. He wrote:
No one has a right to compel me to be happy in the peculiar way in
which he may think of the well-being of other men, but everyone is
entitled to seek his own happiness in the way that seems to him best
if it does not infringe the liberty of others in striving after a similar
end for themselves.
Unlike Aristotle, justice from Kant‘s judgment requires us to protect
human rights for everyone, regardless of where they live or how much we
know them, simply because they are human - a rational being and, therefore,
worthy of respect. However, the limit of Kant‘s thought was that he did not
depict what this imaginary contract was, how the principle of justice made, and
how people reached an agreement on such an imaginary social contract. Just

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about two centuries later, John Rawls – an American political philosopher,
tried to answer them through his classic works: A Theory of Justice.
John Rawls (1921-2002) stated: ―Justice is the first virtue of social
institutions, as truth is of systems of thought‖. He said that there are two
principles of justice in the imaginary social contract. The first principle
guarantees the same fundamental freedom for all citizens, such as freedom of
speech and religion. This principle is an inviolability founded on justice that
even the welfare of society cannot override. The second principle relates to
social and economic equality. It is that social and economic inequalities can be
fair, as long as they are for the benefit of the least - disadvantaged members of
society [36].
Throughout the work of A Theory of Justice, John Rawls proved and
clarified his consistent notion: Justice as fairness. He wrote:
For this reason, justice denies that the loss of freedom for some is
made right by a greater good shared by others. It does not allow that
the sacrifices imposed on a few outweighed by the larger sum of
advantages enjoyed by many. Therefore, in a just society, the
liberties of equal citizenship are taken as settled; the right secured
by justice are not subject to political bargaining or the calculus of
social interests [29].
Nowadays, in exploring the process of judicial reform and innovation
in judicial activity in many countries, justice has three essential qualitative
factors directly related to human rights assurance. First, the law court is where
a trial is conducted fairly with procedural regularity by an impartial judge.
They ensure that governments cannot convict someone or take away their
liberty unless they follow fair and just processes, and people can trust and
have confidence in the criminal justice system. Second, access to justice is a

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fundamental principle of the rule of law, so it must be respected and guaranteed.
Justice delayed is justice denied. Third, costs for access to justice must not be
prohibitive; restraint or obstruction should be in the way of accessing justice
by organizations and individuals.
In brief, the concept of justice differs from time to time, is both subjective
(each individual can have their feelings and assessments) and objective
(guaranteed by the law). Although there is no unified understanding, justice can
be understood as social values and moral values widely recognized by society
and law. Justice is fairness, that means, both rightness and goodness. Justice
corrects individual behavior and regulates community and social relations.
1.1.2. Conception of the Right to Access to Justice
Access to justice is a fundamental right that involves an individual‘s
ability to protect their rights in conformity with human rights standards and
incorporates several fundamental rights such as the right to a fair trial.
Similar to justice, it is not easy to define precisely what access to justice
is. The definition of access to justice also changes from time to time. The words
“access to justice” are admittedly not easily defined. However, they serve to
focus on the legal system’s two primary purposes – the system by which
people may vindicate their rights or resolve their disputes under the general
auspices of the state [35].
United States lawyers said that access to justice is the right to have civil
lawyers for all individuals. Meanwhile, South African lawyers emphasize the
effectiveness of case law in protecting the less privileged people‘s rights in
society. Specialists at the UNDP Committee on Legal Protection for the Poor
said that the right to access to justice is one of the four pillars of the poor‘s
legal protection process. The committee commented: It is vitally essential to

reform public institutions and remove legal and administrative barriers that
still prevent poor people from gaining their rights [62].
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The narrowest conception of ―access to justice‖ represents only the
formal ability to appear in court, overcoming barriers to accessing the justice
system. It has its origins in liberal 18th and 19th-century states and refers to
an individual‘s legal right to litigate or defend. While access to justice was
considered a ―natural right‖, governments did not feel a positive obligation to
protect it through affirmative action programs.
The definition of access to justice engages the broader social context of
court systems. It comes up with the criminal justice system, which is a
traditional point about access to justice. Starting in the 1960s, it focused on
practicing law for the poor and the disadvantaged. The goal was to provide
legal representation to impoverished individuals who could not otherwise
afford legal advice. Traditionally, access to justice focuses on devising
institutional arrangements to exercise their rights within the existing justice
system. It aimed to counteract the cost, delay, and complexity of the legal
system, focus on protecting the rights of the poor and the disadvantaged. This
concept of access to justice forms the foundation for today‘s legal aid and
poverty law clinics. The problem of access to justice is summarized as due to
that the poor lose cases, injustice either because they do not use justice or
because they do not know their rights, do not have money for an efficient
representation in courts by lawyers. Generally, access to justice has
traditionally referred to a range of institutional arrangements to assure that
people who lack the resources or other capacities to protect their legal rights
and solve their law-related problems have access to the justice system [30].
Today, the expansive view of access to justice includes not only one‘s
ability to access the courts and legal representation but also one‘s ability to

engage effectively with law enforcement officials and to make use of informal,
non-state justice mechanisms. Civil society can provide the necessary support

11


for individuals and communities and offer an effective counterbalance to the
state‘s powers and the private sector [55].
Access to justice is a fundamental right that generally guarantees every
person access to an independent and impartial process, and the opportunity to
receive a fair and just trial when that individual liberty or property is at stake.
However, access to justice does not always involve judicial recourse but
accessible, affordable, convenient, and effective redress or remedies. That
expansion seems to beyond equality of opportunity for underprivileged or
underrepresented litigants. Instead, it aims to achieve equality of dimensions.
The restorative justice movement has taken hold as a significant movement in
the justice system. Restorative justice emphasizes dealing with the aftermath of
crimes and resolving the issues that brought the offender into conflict with the
law in a manner satisfactory to the victim, the community, and the offender.
Accordingly, access to justice is not only about the right to access
remedial measures by the judicial system, but also an approach to ensure
human rights, in particular, rights of vulnerable and marginalized groups. It
shows a modern point of view, used more recently by nations, especially
international organizations.
From a rights-based perspective, access to justice refers to the ability of
people from disadvantaged groups to prevent and overcome human poverty
by seeking and obtaining a remedy through formal and informal justice
systems, for grievances following human rights principles and standards.
However, access to justice is not always accompanied by justice
systems. A survey on people‘s perceptions of Justice in India taken by UNDP

showed that slum dwellers prioritized access to justice concerning economic
issues. In contrast, members of marginalized castes highlighted the social
dimensions of access, and indigenous minorities highlighted the political

12


dimension. Therefore, the potential of formal and informal mechanisms to
provide people with a sense of ―justice‖ in a particular situation depends on
the context and prejudice.
According to UNDP, access to justice is also closely linked to poverty
reduction since being poor and marginalized means deprived of choices,
opportunities, access to primary resources, and a voice in decision-making.
Lack of access to justice limits the effectiveness of poverty reduction and
democratic governance programs by limiting participation, transparency, and
accountability [45, p.3].
The traditional point is only to consider access to justice as individuals‘
ability to use legal services for their fairness. However, the modern one thinks
access to justice‘s goal is compensation and remedy for injustices and
damages that they suffered through formal and informal judicial mechanisms
following international human rights principles. The transition to modern
access to justice rights comes from the conventional judicial system‘s
limitations in resolving conflicts of interest in society. UNDP surveyed to
show that the justice system is frequently weakened by:
(i) Long delays; prohibitive costs of using the system; lack of available and
affordable legal representation that is reliable and has integrity; abuse of authority
and power, resulting in unlawful searches, seizures, detention, imprisonment,
weak enforcement of laws, implementation of orders, and decrees.
(ii) Severe limitations in existing remedies are provided either by law
or in practice. Most legal systems fail to provide preventive, timely, nondiscriminatory, adequate, just, and deterrent remedies.

(iii) Gender bias and other barriers in the law and legal system: inadequacies
in existing laws, sufficient disabilities, and low literacy levels.
(iv) Lack of de facto protection, especially for women, children, and
men in prisons or detention centers.

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(v) Lack of adequate information about what is supposed to exist under
the law, what prevails in practice, and limited widespread knowledge of rights.
(vi) Lack of adequate legal aid systems.
(vii) Limited public participation in reform programs.
(viii) The excessive number of laws.
(ix) ormalistic and expensive legal procedures in criminal and civil
litigation and administrative board procedures.
(x) Avoidance of the legal system due to economic reasons, fear, or a
sense of the futility of purpose.
Consequently, access to justice rights in modern ideas is understood as the
right to pursue compensation and remedy inequity or damage that individuals or
groups, especially the most vulnerable groups. This new way can surmount the
limitations pointed out by UNDP by providing more effective guarantees for all
parties are in dispute or conflict situations, especially susceptible social groups
can reach a fair solution.
1.2. Characteristic and connotation of the Right to Access to Justice
Access to justice is a fundamental right in the human rights system.
However, unlike the remaining human rights, it has the following essential
characteristics:
(i) The subject of access to justice: the one who caused damage, and
who suffered from injustice.
Access to justice is understood as the ability to achieve remedies for

injustice or damage that individuals, especially vulnerable and marginalized
groups, have to bear. Individuals or legal entities in any area of social life can
cause these injustices or damages. Accordingly, the owners of the right to
access to justice include those who cause damage, injustice and those who
suffer damage from injustice.

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The subject of damage or injustice of access to justice may be any
person who suffers from the above injustices and damages. The subjects of
damage and injustice often focus on vulnerable groups such as women,
children, the poor, the disabled, migrants, migrant workers, indigenous people,
ethnic minorities, and war victims. These are economically or politically or
socially disadvantaged groups, leading to a high risk of injustice, inequality, or
difficulty recognizing their rights. Unlike some rights reserved only for citizens
such as the right to vote, to stand for election, the right to participate in state
management, the right to access to justice is a right for everyone, including
citizens and foreigners, stateless persons, migrant workers, immigrants.
The subject of damage and injustice in the right to access to justice may
be individuals, legal entities, agencies, or organizations. For example, in
practice, sometimes, the law has specific regulations, people know it, but the
enforcement agencies improperly handle it due to weakness or lack of
responsibility leading to injustices and harm to the people.
(ii) The object of access to justice: Individuals, legal entities, especially
disadvantaged groups in society such as women, children, people with
disabilities, LGBT, people with HIV/ AIDS…
Traditionally, those who violate rights are often government bodies.
For example, a legal department intentionally makes it difficult to issue an
attorney certificate to a lawyer or does not allow him to reach his client is an

act of infringing on access to justice.
Generally speaking, the violator of the right to access to justice is not
limited to the procedure-conducting agencies but may be any individual,
organization, or agency that damages others. For example, residents of
commune A write a letter denouncing corrupt acts of the village-level organ
by mail; commune A post office deliberately conceals does not allow these

15


denunciations to reach competent authorities, showing infringement of
access to justice by this post office.
(iii) Scope of influence
From the traditional perspective, access justice refers to the right to
appear in court and have a fair trial, mainly in criminal proceedings. Hence,
the sphere of impact is principally formal judicial institutions such as a court of
law, procuracy, and investigation agency. On the contrary, the modern view
sees discrimination among groups of people in society as the origin of inequity
in accessing justice, leading to the focus on seeking compensation and remedy
for injustices and. By acknowledging the informal judicial system‘s contribution,
this modern perspective recognizes that ensuring justice is by no means under
only the provisions of law, but also the relevant custom. The sphere of impact
from the modern point of view recognizes formal and informal judicial system‘s
participation.
(iv) The circumstance of rights arises
Suppose other rights always exist and require the subjects to ensure that
they do not violate other entities‘ rights. In that case, the right to access justice
only arises when acts infringe upon the legitimate rights and demands of any
person whose rights or freedoms are violated shall have an adequate remedy. In
other words, access to justice is the right that arises when other human rights

are violated, demonstrating its role as a tool to protect other human rights.
In terms of connotation in the traditional approach, access to justice is
associated with legal protection for each individual. This search for protection
is primarily limited to access to judicial system services to exercise certain
judicial rights. The process of asking the courts to execute justice is the
process of accessing people‘s justice. That process begins with the need for
justice and ends with a court judge. Unlike the extremist-state, where justice

16


is in the hands of the arbitrary governor, justice comes to people by the supply
of government; in the rule of law state, justice is the right of people and the
duty of states.
Meanwhile, from a modern perspective, the implication of access to
justice extends to the non-judicial system, including the negotiation process to
make significant changes in the rule of law, affect the role of public institutions
and empower the disadvantaged groups can fight against inequality [33].
Hence, access to justice protects individuals and organizations from
damage and injustice caused by other human rights violations committed by
other agencies, organizations, and individuals. This right arises when other
human rights are violated, acting as a tool to protect other human rights.
1.3. Methods to ensure the Right to Access to Justice
Methods to ensure the right to access to justice include (i) Legal
protection, (ii) Agency systems involved in resolving disputes, and (iii) Legal
aid and counsel.
(i) Legal protection
Rights and obligations of each individual participating in social
relations are prescribed in a standard system of laws, practices, and customary
laws. It is the first foundation to ensure the exercise of the right to access to

justice. Only when there is a framework of legal rights and obligations will
people have grounds to seek compensation and remedy for injustices or the
damage they face fairly and legally. For example, prisoners must be humanely
treated during their detention, including not being tortured or cruelly treated,
and must have minimum human living conditions.
If with the traditional approach, legal protection is limited to the
application of state laws and regulations recorded in the legal documents, the
modern view of the right to access to justice recognizing both the role of the

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