Concluding part of the Syed Ishtiaq Ahmed Memorial Lecture that Fazle Hasan Abed, founder and chairperson of BRAC, delivered on November 22

EARLIER this year, the Report of the Commission on the Legal Empowerment of the Poor, titled ‘Making the Law Work for Everyone’, was released. The report gives us an opportunity to think of concrete steps that we, as individuals and organisations – whether community-based, national or multinational; and governments, can take in order to help the poor and the marginalised to climb out of poverty. I would like to impart some of the findings of the commission in advancing my basic argument for advocating the use of the law in enforcing right to development as a human right.
   To begin with, the commission believes that poverty is manmade, by action and inaction, and a failure of public policies and of markets. The commission sees that in rich countries, people are more likely to enjoy access to justice and other rights – as workers, businesspeople, and owners of property. It is estimated that in the last six decades more wealth has been created globally than ever before in history. Surely, this vast creation of wealth rests upon various legal protections, norms, and instruments governing such things as business organisations, corporations, tradable assets, labour contracts, workers associations, venture capital, insurance, and intellectual property. And yet, the overwhelming majority of the world has no way to access these same protections.
   The truth is that most poor people do not live under the shelter of the law. They are far from the law’s protection and the opportunities it affords. Informal local norms and institutions govern their lives and livelihoods, and where they are often oppressed by it. When the law works for everyone, it defines and enforces the rights and obligations of all. This is why the commission sees legal empowerment to be a process of systemic change through which the poor and excluded are able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens and economic actors.
   After an intensive process of worldwide thematic consultations and working group sessions, the commission has developed a comprehensive agenda for legal empowerment encompassing four crucial pillars that must be central in national and international efforts to give the poor protection and opportunities. The pillars are: access to justice and the rule of law, property rights, labour rights and business rights. These four pillars reinforce and rely on each other. In their convergence and through their synergy, legal empowerment can be achieved.
   First pillar: 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, particularly to the poor, 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 realised with the commitment of the state and public institutions. How are we to measure that legal empowerment is at play? One way is to draw up a checklist of indicators, such as whether every citizen has access to legal identity, and is registered at birth; or whether laws and regulations that are biased against the rights, interests, and livelihoods of poor people are repealed or modified. The creation of state and civil society organisations and coalitions and paralegals who work in the interest of the excluded, are further markers in this domain. Some organisations in Bangladesh have taken exceptional steps in this regard, not least where they work for jail reforms or sex workers or the dalits (harijans).
   
   Second pillar: property rights
   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; 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, hence operating against the interest of 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. Women, who constitute half the world’s population, own only 10 percent of the world’s property. Indigenous people and others (religious, cultural minorities) also experience active discrimination. Providing and protecting the rights of and access to assets of these groups means direct social interventions.
   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. We already have landmark judgements in Bangladesh which protect the rights of slum dwellers to habitat and livelihood, by categorically prohibiting evictions without adequate notice, compensation and rehabilitation (The guideline set for the government by the High Court Division in its judgement and order dated August 23, 1999 on Writ Petition 3034 of 1999, Ain o Salish Kendra and Others vs the Government of Bangladesh; 19 BLD, 1999, p488). Unfortunately, it is one of many such positive directives which stagnate in the pool of non-enforcement, beholden to the political will of the day. This brings us back to the point of a strong, secure legal regime. 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.
   
   Third pillar: labour rights
   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 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, as 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. So how do we make these improvements? The short answer is that it can be done by increasing access to employment opportunities in the growing and more inclusive market economy. The longer answer lies in expanding social protection for poor workers in the event of economic shocks and structural changes; and by promoting measures that guarantee access to medical care and unemployment benefits, among others. The answer also lies in ensuring that legal empowerment drives gender equality, thus meeting the commitments under ILO standards that actively promote the elimination of discrimination.
   
   Fourth pillar: business rights
   The commission holds it to be self-evident that the poor are entitled to rights, not only when working for others but also in developing their own businesses. 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 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 and stagnation, between increased employment and widespread joblessness, and between the creation of a broader society of stakeholders and deeper inequality leading to a weakened social contract.
   
   Democratic efficiency as a marker
   of rule of law
   At the beginning of the paper I posited law within the symbiotic relationship between the State, society and the market. Indeed, it bears reiteration that law performs the dual role of a conduit to and lubricant between each of these components of modern democracies. Going back to the basics of what makes up the social contract, we see that a legally empowered and responsive citizenry makes up the lifeblood of democracy and the rule of law. In the language of the Commission, democracy and legal empowerment are kindred spirits, and are better synchronised than sequenced. In the absence of empowerment, societies lose the benefits that come from the free flow of information, open debate, and new ideas. Meanwhile, governments are not held accountable for unwise policies.
   An accountable government is one which facilitates the give and take of social contract between citizen and state. A true democracy is one where the state and the citizen together combat the disappearance of social services, the shrinking rights of workers, the gradual reduction in the role of the public sector and the formation of commercial policies at the cost of public interest.
   In an impassioned rebuttal of the position that benevolent authority is better than democracy, Mike Moore, former Prime Minister of New Zealand and a fellow commissioner, summed up the value of true democracies thus:
   Poor democracies have always outperformed authoritarian societies. Democracies score 20 to 40 per cent better even in poor nations, whether it be life expectancy, infant mortality, or farm production and clean water. Democracies are less corrupt, more efficient because leaders are held accountable, and an active civil society and free media are the watchdogs, the cleansing air of transparency, and the adaptability of democracy drives up better results. There has never been a famine in a democracy, no two democracies have even gone to war, and where there are democracies the numbers of civil wars go down. No evidence was produced to back up the claim that dictatorships do better. Democracy is more than having a vote, it’s also about freedoms such as property and human rights.
   This echoes what advocates for justice and peace have been telling us all along. That there is a reason that no democracy has experienced famine, and that trends over several decades suggest democracies are less likely to become embroiled in conflict. There is, of course, no single model of democracy, but the needs of the poor can often be better voiced when decision-making is decentralised to the local level. The core principle underlying democracy, in all its forms, is that legitimate power is derived from the freely expressed will of the people. Strengthening democracy is essential to legal empowerment (Infra, p17).
   
   Barefoot lawyers on the road to social
   justice: the BRAC exercise
   One of the lessons BRAC learnt in the early days of its operations was that one does not develop people, but that, given enabling conditions, people develop themselves. To help people help themselves, BRAC’s role was and still is to facilitate people’s sense of self worth, so that they can become agents of their own development. We became aware of basic truths: that people are poor because they are powerless. They must be empowered - economically, socially, politically and legally – to understand the dynamics of their own communities so that they can bring about the desired change. At the heart of all of BRAC’s activities are its village organisations, made up of thirty to forty poor persons in a village, mostly women, and based on solidarity and mutual support. Early on we recognised that destitute rural women, while being the worst affected by poverty, could play a crucial role as agents of change. These village organisations act as a gateway for our members to all of our services, including legal aid. However, one need not necessarily be a BRAC group member to receive legal aid services. This service is free and open to all.
   We find that the road to legal empowerment is a long one. While we have moved from legal education to legal services, we have far to go yet to make the move from legal services to real, critical change in the status quo – where knowledge retention translates into transformative action – where the voice of the poor ring strong in legislative and policy advocacy, in law reform and democratic governance. In order to play an effective role in addressing the democratic deficit, where the poor are as yet voiceless, we are broadening our work horizon. We are already starting to move beyond pure legal aid service delivery, to activities such as assistance towards safe migration; jail reform initiatives, specifically with regard to overcrowding in prisons and the rights of under-trials to bail. We are also seeking out collaboration with legal aid and human rights actors to further strengthen the voice of the marginalised in Bangladesh.
   Organisations driven by community needs, such as BRAC, continue to play a vital role as service providers by meeting the needs of poor, low-income, marginalised communities and by facilitating those who seek services to become more politically and legally aware. However, it is important for us to look beyond our present role and invest in building a broad-based coalition of rights-based development partners capable of fighting the policies that drive neo-liberal urbanism, and pressing for collective bargaining rights of the poor and marginalised.
   In an unequal society where the poor are already disadvantaged, it is important to provide legal safety nets before allowing market forces to operate freely. The present global financial crisis is an example of the unfair economic and social policies at work. The immense problems created by inequality and poverty can be addressed by adopting a redistributive strategy to empower the poor to fully enjoy their right to resources, and fight the hegemony of unregulated free market enterprises.
   
   Poverty is not inevitable
   I would like to conclude this discussion by sharing the principle of ubuntu. The word has its origin in the Bantu languages of Southern Africa. It means, ‘I am because you are.’ This simple, strong, eloquent message is the kernel of all that is required to make our society a just one. It is for governments, organisations and us as individuals to practise as a daily act of social justice. When a single member of our neighbourhood lives in poverty and squalor, we are all impoverished. We must therefore take up every acceptable implement, whether social, legal, scientific, economic or political to make human development the enterprise of all humanity. Kofi Annan, the former United Nations secretary general, sums up this message well, ‘The right to development is the measure of the respect of all other human rights. That should be our aim: a situation in which all individuals are enabled to maximise their potential, and to contribute to the evolution of society as a whole.’