The MIDEQ Hub’s work on migration and (in)equality draws on different forms of expression and language as resources to explain various concepts that are often mistakenly taken as having a common or universal application and understanding. As part of our work on access to justice (A2J), this piece reflects upon some symbols and images of justice and how these may translate for migrants as they attempt to access justice.
There are many representations and symbols of justice across many cultures around the globe. Perhaps, the more ubiquitous one is that of the balanced scales, which is usually associated with the law and courts of justice. The balanced scales of justice are commonly understood to symbolise equity, equality, impartiality, objectivity, fairness or getting one’s due.
While it is easy to envision these attributes and ideals, the more difficult aspect is how to get there. Are the scales ever balanced? Or better still, are the balanced scales accessible? In Plato’s Republic, Thrasymachus cynically observes that “justice is nothing other than what is advantageous for the stronger.” In other words, the scales of justice will always be tilted against the marginalised and vulnerable. Indeed, the World Justice Project estimates that billions of people, about two-thirds of the world’s population, lack meaningful A2J and thus have “critical unmet justice needs.”
Access to justice for migrants
Migrants are generally recognised as being in a situation of vulnerability owing to the discrimination and unequal treatment they usually face simply by living in countries of which they are not nationals. Although the justice experiences of migrants may vary based on their legal status, migration route, and demographics, most migrants are usually in a situation of legal, social, economic and political inequality with nationals. Even when they experience injustices, including discrimination, abuse and exploitation, their chances of accessing justice are relatively limited. This could be owing to, among others, unfamiliar legal systems, language and cultural differences, economic and social difficulties, lack of information, lack of legal assistance, and institutional, structural, and legal barriers. Despite guarantees on equality of all persons before the law and equal protection of all by the law, as espoused in various human rights instruments and national constitutions, many migrants do not get the benefit of these protections. For many migrants, the scales of justice remain a mirage. For them, the scales of justice do not convey their experience of justice.
A painting entitled ‘Broken human rights’ by an Ethiopian refugee exhibited in London in 2020 portrays the brokenness of the law and its failure to protect the oppressed as a heavily chipped gavel and clock that a pair of hands is striving to hold together. The hands symbolise the hope that the law will deliver justice someday. Translated into the scales analogy, the scales of law and justice are simply broken or tilted against migrants, refugees and other disadvantaged members of society.
History is replete with examples of laws whose effects foster injustice or hinder A2J for specific sections of society. Many such laws persist to the present day. The Special Rapporteur for the Human Rights of Migrants (SRHRM) has identified some laws that hinder migrants’ A2J, e.g., laws that hinder or restrict firewall protections. Such laws deter migrants, particularly those in an irregular situation, from accessing public services to which they may be entitled. Also, migration laws that criminalise irregular migration tend to contravene several international human rights standards.
The annual reports of the SRHRM enumerate numerous human rights violations and injustices that many migrants experience at almost every phase of their migration process. Many of these injustices go unredressed. Migrants that fear to complain against exploitative and abusive employers or fraudulent recruiters, domestic workers whose freedom of movement may be curtailed, migrants tortured by smugglers, and those who, for various reasons, cannot or do not obtain assistance from public service providers find themselves silenced. They do not have a voice or simply cannot find it. Their cries for justice are muted and muffled, as portrayed in the painting ‘No Voice’ in which a child tries to cry out, but a hand is tightly held over their mouth. According to the artist, justice fails to defend many migrant girls who are tortured and abused. There is a clamour for political and social representation for those who feel unseen, unheard and unrepresented. Hence, a symbol for a voice, such as a hand writing symbol (✍️) used by the MIDEQ team in Malaysia, could be associated with justice.
Limitations of predominant understanding of A2J
These examples demonstrate that for many migrants, the balanced scales of justice are not symbolic of their experiences of justice. Their stories and experiences should guide us to a modified understanding of A2J. A2J is predominantly understood as access to formal legal and judicial redress mechanisms. This understanding, rooted in a Eurocentric and state-centric conceptualisation of A2J (with which the scales of justice are commonly associated), places more emphasis on procedural than substantive justice. Accordingly, most interventions on A2J for the poor and disadvantaged focus on such aspects as the provision of legal aid, legal education, improvement of service delivery etc., that would enable individuals to gain better access to formal justice institutions. However, this may not necessarily address the structural issues of socio-economic justice. Additionally, by focusing on formal justice processes, little attention is given to administrative bodies, which are charged with day-to-day service delivery to all persons without discrimination, as well as informal or non-formal justice mechanisms, which are more meaningful for persons that cannot access formal justice mechanisms.
Rethinking A2J with new symbols
Given these limitations and how they impact migrants, it is important that we broaden our understanding of the A2J concept from a migrant perspective. This means being guided by the lived experiences of migrants in deciding appropriate interventions to improve their access. It also means expanding our notions of justice delivery institutions to include public service providers at all levels of government, informal and community justice mechanisms, including non-state actors and justice intermediaries such as NGOs. It means addressing structural inequalities in A2J hence dealing with its more substantive and usually political dimensions. Finally, it is important to build solidarities among communities, bridging the citizen-migrant divide and the often-unhelpful migrant categorisations, in order to address intersecting injustices and inequalities. This notion finds expression in the Ghanaian Adinkra symbols Bi Nka Bi (“no one should bite another”) and Anyi me Aye A (“if you will not praise me”).
The former symbolises peace, justice, unity and harmony in the community, while the latter reminds people always to show appreciation and respect in order to promote community well-being. These may be more symbolically meaningful in our approach to A2J for migrants.