Access to Justice and Legal Aid System of Bangladesh Government

- Barrister M. Aftab Udddin

Legal_aid

Published On - July 4, 2014 [Vol. 1, Jul - Dec, 2014]

In Bangladesh a significant number of people are still deprived of their constitutional right of access to justice and fair judicial processes caused mainly by poverty, ignorance, illiteracy, oppression and exploitation. Notwithstanding there exists a government operated legal aid system in Bangladesh, whose support mechanism is inadequate.

Context: The Notion of Legal Aid

The idea of legal aid represents the very spirit of equality and equity enshrined in the modern notions of constitutional law, as stated in the Constitution of the Peoples’ Republic of Bangladesh. The doctrines of equal treatment of law and fair judicial trial have found expression as one of’ the foundations of the modern legal understanding of fundamental human rights, both national and international arena. The concept of legal aid is thus neither a charitable feeling nor an idealistic vision of a utopian venture. It is rather a vital and essential part of the principles of Rule of Law and administration of justice. The notion of Legal Aid viewed in a broad generic sense, is a compilation of activities, which can be undertaken by lawyers or non-lawyers, including NGOs and other civil society, as may be appropriate according to law, custom and capacity.

States and Government’s obligation to provide legal support for its indigent citizens has been defined throughout the past century on a number of different bases, including moral, political, social justice and legal terms. The evolution of concept of legal aid in European jurisdictions grew from the traditional view of formal equality to the broader concept of ‘access to justice’, recognizing that existing legal aid schemes are not sufficient for the poor and vulnerable justice seeker.

There has been a long tradition of States providing some form of legal aid to the poor in the majority legal systems. A quite ancient right to access to justice dates back to England in the 1400s where the Statute of Henry VII (1495) waived all fees for indigent civil litigants in the common law courts and empowered the courts to appoint lawyers to provide representation in court without compensation.[1] During the 19th Century, most Continental codes of law contained the principle of the “poor man’s law”, providing court fee waivers and appointment of duty counsel for the very poor.[2] However, it was not until the 1940s and 1950s, that formal, comprehensive and statutorily funded legal aid schemes were established. These earlier legal aid service, such as England’s national legal aid system established in 1949 and Ontario, Canada’s provincial legal aid service established in 1951, were limited with respect to the coverage and scope of services offered.[3] Coverage under these earlier schemes tended to give priority to only criminal law matters. The argument being that in criminal law matters, as opposed to civil law, demand is determined by the state that an individual’s liberty is at risk.[4]  Defendants in criminal cases have no choice but to defend themselves against the power of the state, which can be considerable as states generally spend far more on police and prosecuting services than on legal aid.

Under these earlier legal aid schemes, the primary providers of legal aid were lawyers and in particular, private bar members. The schemes in England and Ontario, Canada are still predominately delivery by a judicature or private bar model, which is one where the legal aid plan pays private lawyers a fee for service to provide individual case representation to those who are eligible. Individuals are allowed, to some extent, choice of counsel. Despite the development of statutorily-funded schemes, legal aid was still primarily provided on a voluntary basis by the private bar and seen as a charity rather than a right.

Nevertheless, in the United States, in 1960s, a broader approach developed with respect to the role of legal aid and legal services in general. Services under legal aid schemes were extended to address the “unmet needs” of the poor, which included housing, social security, family and debt issues. This philosophy spread to Canada, Australia and Europe starting of the clinic or law center movement. In the earlier movement, these clinics focused on strategies to improve the conditions of the poor rather than on individualized services. By the end of the 1960s and early 1970s, this transformed perception of social justice gave rise to the ‘access to justice’ movement. Access to justice means effective, efficient access to the law requiring not only legal advice and representation in court, but also information and education of the law, reform and a willingness to be able to identify the unmet needs of the poor.

In the same time there was another significant development in Europe regarding legal aid. Within the 1960s, the assertion of “rights” was a strategy common to various movements, which characterized rights as positive affirmation of a state duty rather than as a negative one, as a protection against state interference. The European Conference of Ministers issued a declaration on legal aid in the late 1970s, which considered the right of access to justice as an essential feature of any democratic society and firmly stated that legal aid no longer could be considered a charity but as an obligation of the community as a whole.[5] The resolution dealt with both criminal and civil legal aid, calling on States to accept the responsibility for financing these legal aid systems.

There exists a range of international norms and standards that are relevant to the question of a State’s responsibility to provide legal aid, which began to be articulated by the international community after 1945 with the establishment of the United Nations and the development of international human rights law. It is principally the United Nations International Covenant on Civil and Political Rights (ICCPR)[6] that set out specific obligations of States to provide state-funded counsel for indigent persons. Article 14(3) (d) of the ICCPR requires that an accused offender is entitled “to have legal assistance assigned to him, in any case if he does not have sufficient means to pay for it”.[7] This provision for legal aid in Article 14(3) is set out among the minimum guarantees to which everyone is entitled, in full equality, in the determination of any criminal charge.

In the regional treaty, The European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention), also includes similar provision. Again, with respect specifically to the situation of young persons charged with a crime, The Convention on the Rights of the Child (the Children’s Convention)requires States to ensure that every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance.[8]

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice provide that, throughout proceedings, juveniles have the right to be represented by a legal advisor or to apply for free legal aid where there is provision for such aid in the country. The United Nations Rules for the Protection of Juveniles Deprived of Their Liberty provide that where juveniles are detained under arrest or awaiting trial, they have a right to legal counsel and are to be able to apply for free legal aid where such aid is available.

There are further international instruments which are relevant for an individual to access State-funded counsel which include the United Nations Basic Principles on the Role of Lawyers[9] stipulating that governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. The Principles state that professional associations of lawyers should cooperate in the organization and provision of services, facilities and other resources. The United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment[10] provides that a detained person shall be entitled to have legal counsel assigned to him or her by a judicial or other authority in all cases where the interests of justice so require and without payment by him or her if he/she does not have sufficient funds to pay. The United Nations Standard Minimum Rules for the Treatment of Prisoners[11] provide for untried prisoners to be allowed to apply for legal aid where such aid is available.

The criminal prosecution may result in deprivation of personal liberty, the Indian Supreme Court held that an accused, who due to poverty, indigence or an incommunicado situation, cannot afford legal service is entitled to free legal aid at the cost of the State as part of fair and reasonable procedure under Article 21 of the Indian Constitution.[12] It is the opinion of the court, the trial court should inform the accused of his right to legal aid and if because of the failure to inform, the accused remains un-represented, the trial will be vitiated. The Constitution of India also provides that state shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.[13]

The Government of India also started addressing the question of legal aid for the poor in various conferences of Law Minister and Law Commissions since 1952. In 1960, some guidelines were drawn by the Government for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. In 1980, a committee at the national level was constituted to oversee and supervise legal aid programs throughout the country. In 1987 the Legal Services Authorities Act was enacted to give a statutory base to the Indian legal aid programs on a uniform pattern. This Act was finally enforced on 9th November 1995 after certain amendments.

The Legal Framework of Government Legal Aid Service in Bangladesh

The provision relating to legal aid under Bangladesh law was first introduce in the Code of Civil Procedure, 1908 (Order XXXIII, Rule 1) in relation to the pauper suit. A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in a suit; or, where no such fee is prescribed, when he is not entitled to property worth one hundred taka other than his necessary wearing apparel and the subject matter of the suit. There are also provisions relating to the right to legal defense have been made in the Code of Criminal Procedure, 1898. According to section 340 (1) any person accused of an offence before a criminal court, or against whom proceedings are instituted under this code in any such court, may of right be defended by a pleader. More recently, the Legal Remembrance’s Manual, 1969 provides that an indigent person accused of an offence punishable with death sentence is to be provided with the assistance of’ a lawyer at the expense of the state.[14]

The above provisions may be seen as embedded in a ‘negative right’[15]  to legal aid contained in the Constitution of the Peoples Republic of Bangladesh. Article 33(1) of the Constitution provides that no arrested person shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

Government operated legal aid system in Bangladesh was first introduced through a national legal aid fund in 1994, which was later revived through formation of National and District Committees in 1997.  Finally, the current legal aid service under a National Legal Aid Services Organization (NLASO) was established by enacting the Legal Aid Services Act, 2000 (as amended, hereinafter LASA 2000).

Legal aid system in Bangladesh: Challenges and way forward

The existing NLASO service largely serves the remedial aspect of legal aid under the statutory provisions of the LASA 2000 (as amended). One important aspect that emerged is the overall national legal aid scheme needs to adopt a broader programmatic approach with specified targets spelt out in both quantitative and qualitative terms, work and implementation strategies and plans with objectively verifiable indicators, performance focused and need-assessed monitoring, review and evaluation apparatus.

By contrast, the preventive philosophy of the legal aid service needs to focus and comprise in a number of important strategies. These include, among other, creating mass awareness on basic legal and human rights in general, and about the services of the Government legal aid scheme in particular, through print and electronic media and various public and private sector and NGOs development programs. It has been found that basic legal literacy as an essential element for success as unless the poor and the disadvantaged, vulnerable are aware of their rights, they would not be able to identify the legal wrong done to them and seek remedy. In addition to that, as grass-root empowerment and mobilization is a crucial precondition for achieving the set objectives of the NLASO services, basic legal literacy would lay one of the vital foundations to that end. Resolving disputes through all methods of Alternative Dispute Resolution (ADR) would be very useful in this regard.

[1]Johnson, Earl ‘Toward Equal Justice’ Maryland Journal of Contemporary Legal Issues p.204.
[2] Blankenburg, Erhard “Lawyers’ Lobby and the Welfare  State: The Political Economy of Legal Aid” contained in Volume 11 of the Conference Papers presented at the International Legal Aid Conference, Edinburgh June 1997 p.2.
[3] For the historical development of legal aid, see The Responsibility of State to Provide Legal Aid, conference paper by Eileen Skinnider, The Legal Aid Conference of the International Center for Criminal Law Reform and Criminal Justice Policy (March 1999).
[4] Legal Aid-Targeting Need. Lord Chancellor’s Department, HMSO, CMND 2854, 1995 paras 4.38-40.
[5] European Conference of Ministers, Legal Aid and Advice: Resolution 78(8) adopted by the Committee of Ministers of Council of Europe on 2 March 1978.
[6] The International Covenant on Civil and Political Rights (1976) 999 UNTS 171. Adopted by the General Assembly resolution 2200A (XXI) of 16 December 1966 and entered into force 23 March 1976.
[7] Article 14(3) of the ICCPR: In the determination of any criminal charge against him, everyone shall he entitled to the following minimum guarantees, in full equality:
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing: to be informed, if he does not have legal assistance, of this right; and to have legal assistance to him, in any case where the interests of justice so require, and without payment by him in any case if he does not sufficient means to pay for it.
[8] The Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 of 20 November 1989 and entered into force 2 September 1990. Article 37: State Parties shall ensure that: (d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to prompt decision on any such action.
Article 40(1): States Parties recognize the right of every child to..(a)(ii) to be informed promptly and directly of the charges against him or her, and if appropriate, through his parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defense; ….(a)(iii) to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance….
[9] The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of’ Crime and the Treatment of Offenders.
[10] The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by General Assembly resolution 43/173 of 9 December 1988.
[11] United Nations Standard Minimum Rules for the Treatment of Prisoners, Economic and Social Council resolution 663 (XXIV).
[12] Hoscot v. Maharashtra, AIR 1978 SC 1548; Hossainara v. Bihar, AIR 1979, SC 1369. For a detail discussiopn on the subject, see Mahmudul Islam, Constitutional Law of Bangladesh, Mullick Brothers, 2nd Ed (2006 ), esp., pp l96-97, 200.
[13] See Article 39A of The Indian Constitution.
[14]  See, Judgment (pars-6) in State vs. Puma Chandra Mondal, 1970, 22 DLR; see also, Abdul Gani’s case (16 D.L.R. 388).
[15] M. Bhatra, Protection of Human Rights in Criminal Justice Administration (1989) at 63.

About The Writer

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Barrister M. Aftab Udddin

Advocate, Supreme Court of Bangladesh

Former Advisor, UNDP Bangladesh.

aftabtapan@gmail.com

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