The Four Pillars of Legal Empowerment of the Poor
Access to Justice and Rule of Law-Pillar-1
The first right which is guarantees all others: access to justice and the rule of law. Legal Empowerment is impossible when, de jure or de facto, poor people are denied access to a well-functioning justice system. Where just laws enshrine and enforce the rights and obligations of society, the benefits to all, especially the low income individuals, are beyond measure. Ensuring equitable access to justice, though fundamental to progress, is hard to achieve. Even if the legal system is technically inclusive and fair, equal access to justice can only be realized with the commitment of the state and public institutions.
Legal Empowerment processes in this domain shall be:
- Ensure that everyone has the fundamental right to legal identity, and is enrolled at birth
- Repeal or modify laws and regulations that are biased against the rights, interests, and livelihoods of low-income people
- Establish a legitimate state monopoly on the means of coercion, through, for example, effective and impartial policing
- Make the formal judicial system, land administration systems and relevant public institutions more accessible by recognising and integrating customary and informal legal procedures with which the poor are already familiar
- Encourage courts to give due consideration to the interests of the low-income/ poor
- Support mechanisms for alternative dispute resolution
- Foster and institutionalize access to legal services so that the poor will know about laws and will be able to take advantage of them
- Support concrete processes for the Legal Empowerment of women, minorities, refugees and internally displaced, and indigenous people
- Facilitate the creation of state and civil society organizations and coalitions, including paralegals who work in the interest of the excluded
Property Rights- Pillar -2
Ownership of property, alone or in association with others, is a human right. A fully functioning property system is composed of four building blocks: a system of rules that defines the bundle of rights and obligations between people and assets reflecting the multiplicity and diversity of property systems around the world; a system of governance; a functioning market for the exchange of assets; and an instrument of social policy. Each of these components can be dysfunctional, operating against the poor. When the system fully functions, it becomes a vehicle for the inclusion of the poor in the formal economy, and a mechanism for their upward social mobility. When the entire system or a single component is dysfunctional, the poor are deprived of opportunity or discriminated against.
As reforms of property rights are inherently risky, full attention should be paid to securing the rights of the poor. Women, who constitute half the world‘s population, own only 10% of the world‘s property. Indigenous people and others also have been actively discriminated against. To ensure group rights, imaginative legal thinking is required. Providing the absolute poor with rights and access to assets means direct social interventions.
To be fully productive, assets need to be formally recognised by a system encompassing both individual and collective property rights. This includes recognition of customary rights. Embodying them in standard records, titles and contracts in accordance with the law, protects households and businesses. Evictions should only be an option in circumstances where physical safety of life and property is threatened, where contract agreements have been breached or under fair eminent domain procedures. It must be by due legal process, equally applicable, contestable and independent, and where the cost of eviction is fully compensated. Property rights, including tenure security, should not only be protected by law, but also by connecting the property of the poor to wide societal interest (by increasing the range of validation of their tenure security). The possibility is opened for the poor to use property as collateral for obtaining credit, such as a business loan or a mortgage. It encourages compliance by attaching owners to assets, assets to addresses, and addresses to enforcement: making people accountable. As such, property reform can strengthen access to legal identity and to justice. Property records unify dispersed arrangements into a single legally compatible system. This integrates fragmented local markets, enabling businesses to seek out new opportunities outside their immediate vicinity, and putting them in the context of the law where they will be better protected by due process and association of cause. Legal Empowerment measures in this domain must:
- Promote efficient governance of individual and collective property in order to integrate the extralegal economy into the formal economy and ensure it remains easily accessible to all citizens.
- Ensure that all property recognised in each nation is legally enforceable by law and that all owners have access to the same rights and standards.
- Create a functioning market for the exchange of assets that is accessible, transparent and accountable.
- Broaden the availability of property rights through social and other public policies, such as access to housing, low interest loans, and the distribution of state land.
- Promote an inclusive property rights system that will automatically recognize real and immoveable property bought by men as the co-property of their wives or common law partners.
The poor may spend most of their waking hours at the workplace, barely surviving on what they take from it. But labour is not a commodity. In the same way that property and the physical assets of the poor are recognised, so also must the greatest asset of the poor – their labour and human capital – be effectively recognised. The legitimacy, even the acceptability, of the economy depends upon basic labour rights, and so does the development of human capital necessary for sustained growth. In turn, the continuous improvement of labour and social rights depends on a successfully functioning market economy. The typical and tired pattern of low productivity, low earnings and high risks must be replaced by the fulfilment of the Fundamental Principles and Rights at Work and the Decent Work Agenda and the strategy to provide protection and opportunity to workers in the informal economy: a coalition described as an emerging global social contract. Here is how:
- Respect, promote and realize freedom of association so that the identity, voice, and representation of the working poor can be strengthened in the social and political dialogue about reform and its design
- Improve the quality of labour regulation and the functioning of labour market institutions, thereby creating synergy between the protection and productivity of the poor
- Ensure effective enforcement of a minimum package of labour rights for workers and enterprises in the informal economy that upholds and goes beyond the Declaration of Fundamental Principles and Rights at Work
- Increase access to employment opportunities in the growing and more inclusive market economy
- Expand social protection for poor workers in the event of economic shocks and structural changes
- Promote measures that guarantee access to medical care, health insurance, and pensions
- Ensure that Legal Empowerment drives gender equality, thus meeting the commitments under ILO standards that promote the elimination of discrimination and actively promote equality of opportunity for and treatment of women – who have emerged as a major force in poverty reduction in poor communities
Access to basic financial services is indispensable for potential or emerging entrepreneurs. Just as important is access to protections and opportunities such as the ability to contract to make deals, to raise investment capital through shares, bonds, or other means, to contain personal financial risk through asset shielding and limited liability, and to pass ownership from one generation to another. These rights may not be equally relevant to every entrepreneur, but they are instrumental in poverty eradication and economic development. They must be accessible to all the many micro, small and medium enterprises in the developing world – many operated by women – that employ a large portion of the labour force. The success or failure of this economic sector will often spell the difference between economic progress versus stagnation, increased employment versus widespread joblessness, and creation of a broader society of stakeholders versus deeper inequality leading to a weakened social contract. Legal Empowerment measures in this domain must:
- Guarantee basic business rights; including the right to vend, to have a workspace, and have access to necessary infrastructure and services (shelter, electricity, water, sanitation)
- Strengthen effective economic governance that makes it easy and affordable to set up and operate a business, to access markets – and to exit business if necessary
- Expand the definition of ―legal person‖ to include legal liability companies that allow owners to separate their business and personal assets – and thus enable prudent risk-taking
- Promote inclusive financial services that offer to all entrepreneurs in the developing world what many of their counterparts elsewhere take for granted: savings, credit, insurance, pensions, and other tools for risk management
- Expand access to new business opportunities through specialized programs to familiarize entrepreneurs with new markets, that help them comply with regulations and requirements, and that support backward and forward linkages between larger and smaller firms