Star Law analysis
Legal
aid and access to justice: Prospects and problems
Barrister
Md. Abdul Halim
Justice
is open to all like the Ritz Hotel." Behind this
remark lies an age-long complaint that the cost of law
prevents the poor from getting justice.
Hotel
Ritz or hotel Sheraton is open for public but can the
poor people dare enter there let alone stay there? In
line with international commitment to the principle of
equality of justice as enshrined in Article 7 of the Universal
Declaration of Human Rights, it has been pledged in the
preamble of our Constitution that one of the fundamental
aims of the state is to realise a society in which equality
of justice would be secured for all citizens. Not only
that, article 27 of the Constitution provides for a fundamental
right that all citizens are equal before law and are entitled
to equal protection of law. It does not require any reference
to cite how illusory and meaningless those commitment
and constitutional protection of fundamental rights are
when we see that most of the indigent litigants in the
country cannot afford the cost of defending their basic
civil rights by appointing a lawyer or traveling to the
District Court. Protection of equality before law and
equal access to law in the Constitution becomes a mere
paper tiger when an indigent people finds himself in the
police custody or jail custody and cannot defend himself
by affording a lawyer. The economic condition of the common
people forming 90% of the total population baffles description.
They are not only poverty-stricken but are deprived of
the minimum basic needs of life. Modern life and civilisation
seem to have been a beckoning of the horizon to them.
'The demon of illiteracy and wants has still kept them
subjugated and ignorant of the basic human rights and
amenities. Their fate revolves round the globe of darkness
without any better change'. "Our poor litigant people,
most of whom pass more than half of the year through acute
starving condition, cannot afford to reach the doors of
any law chamber and derive any benefit of their services
in many cases and as a result, they silently bear the
agonies and burns of injustice done to them in various
spheres of life without any legal relief. This is nothing
but a negation to them of one of their fundamental rights
of equality before law and the equal protection of law."
Access
to the court is depended upon three conditions: first,
the payment of necessary court fees; second, other incidental
costs, like collection of documents, copying, fees for
the Bar Association etc; and third, the assistance of
a skilled lawyer with a view to properly presenting the
case in the court. Thus the concept of legal aid in the
form of assistance for matters inside the court encompasses
all the above three conditions. Apart from court-matters
legal aid, non-court matters legal aid has widely been
recognised in most civilised countries. This includes
legal aid for consultation, advice, pre-action negotiation
etc. Unless legal aid could be claimed as of right it
cannot be said that equality before law has been achieved.
Legal aid should not be considered as charity; it should
be a part of social service.
In
its independent history legal aid movement in Bangladesh
has not gained any momentum at the governmental level
until 2000 when the Government in assurance of financial
cooperation by the Canadian International Development
Agency (CIDA) made an initiative to provide legal aid
to indigent litigants and in view of that plan the Legal
Aid Act 2000 was passed providing for legal mechanism
and access to legal aid throughout the country. The purpose
of this writing is to give a brief idea of the legal aid
scheme under the Legal Aid Act, 2000 and its problems
and prospects.
Provisions
of the legal aid act, 2000
Section 3 of the Legal Aid Act 2000 provides for an organisation
named National Legal Aid Organisation which will organise
and monitor proper functioning of this Act. Section 5
provides that the management and administration of the
National Legal Aid Organisation will be vested on a National
Management Board the main function of which is to provide
legal aid to poor litigants and to supervise the activities
and effectiveness of the District Committee. The main
operating bodies are the district committees whose main
function is to provide legal aid to poor litigants according
to the rules and principles fixed by the National Legal
Aid Organisation and to adopt and implement projects and
plans relating to legal aid in the district. Under the
Act and rules framed thereunder a litigant can get legal
aid on fulfillment of the condition of "financially
incapable and poor". Who is financially incapable
and poor? The rule specifies that it means a person whose
yearly average income is not more than Tk. 3000.00. An
application for legal aid is to be submitted to the Board
or the District Committee. If the application is made
for legal aid for any matter in the Supreme Court, it
is to be made to the Chairman of the National Legal Aid
Organisation, i.e. the Minister of the Law, Justice and
Parliamentary Affairs.
Problems
and challenges of the legal aid scheme
The main purpose of this article is to high light the
prospects and defects and put for some suggestions of
the legal aid law and programmes.
The
Ceiling and Determining the Means of the Litigant: The
ceiling of taka 3000.00 should be raised at taka 10,000.00.
This is because the ceiling of annual income seems to
be inconsistent with the present state of socio-economic
perspective of the country. According to the present legal
arrangement a person is not entitled to get legal aid
whose income is more than taka 3000.00 per annum. A person
of such a meager income is rarely found. An indigent client
whose income is below taka 250 per month faces the real
problem as to how he/she proves his scanty income or convince
the legal aid committee to believe him to be an indigent.
There is also a fundamental question as to whether an
indigent client whose monthly income is below taka 250
does really face any court case apart from some criminal
allegation or arrest? Even a slum dweller or a beggar
earns more than this amount. There is no specific guideline
on the basis of which the committee determines a litigant
to be an indigent litigant or not. It is because of this
reason that a huge amount of legal aid money remains balance
at the end of the year.
Proper
monitoring and follow-up measures
After allocating a case to a panel lawyer, what is he
doing? Is he doing his job with proper responsibility?
Lawyers once appointed become disinterested because of
the absence of proper follow-up measures. If a lawyer
appointed on legal aid is found irresponsible, there should
be effective system of removing him from the panel.
Monthly
Meeting: The monthly meeting of the District Committee
should be made more rule-oriented. After completion of
one meeting if any indigent client files a petition it
is left to be considered in the following meeting. Provision
should be made that immediately after receiving any application,
it is to be placed before the Chairman (District Judge
of the respective district) who will in consultation with
the G.P or P.P. appoint a panel lawyer and the appointment
is to be approved by the District Committee in its next
meeting.
Legal
aid committees in thanas and upzillas
The present law compels indigent litigants to travel to
the District to get legal aid which is very disadvantageous
for them. Legal Aid Committees in thanas and upzillas
should be formed as per section 12 of the Act. This will
also relieve the burden of the District Judges to deal
with lots of application at the same time.
Incidental
Legal Cost and advance Payment: The law only allows the
fees to be paid to the appointed lawyer. There is no specific
rule about other expenses such as court fees, commission
fees, adjournment cost, TA/DA for witnesses if necessary,
and other miscellaneous expenses like photocopying or
releasing documents etc. The problem with regard to procurement
of document necessary to start a case is fundamental.
There is no provision for payment for vokalatnama. A lawyer
needs some documents to start a proceeding in the court
and he cannot procure these without cost which he naturally
needs in advance. Problem becomes grave when the case
is a civil suit between two individuals and appointed
lawyer is unable to collect relevant documents from the
lawyer of the other side. The lawyer has to approach the
bench clerk for necessary help and it is open secret that
no bench clerk gives any document without money (illegal
gratification). Payment after service which is the rule
under the legal aid law makes the lawyers disinterested
in dealing with legal aid cases.
Complicated
Procedure: There is no uniform printed form for application
for legal aid. The available form is very cumbersome and
difficult for the indigent litigants to fill up.
Lack
of Cooperation among three concerned Agencies: There is
a huge lack of cooperation between three concerned agencies:
Legal Aid Committee, legal aid lawyers and legal aid clients.
Communication between the engaged lawyer and the client
especially when he is in jail is very much important.
There is evidence that appointed lawyers do not make contacts
with the accused persons in jail custody. Very often because
of bad communication network the indigent client living
in a remote area finds it very difficult to consult the
lawyer concerned. Legal aid clients express their dissatisfaction
as to the performance of their legal aid lawyers.
Choice
of Lawyer: As per the provisions of the Legal Aid Act
the client has to choose advocates from the panel of three
advocates formed by the committee. By this the client
is actually debarred to engage advocate of his own choice.
This provision should be redrafted. Most of the established
law firms should be sent the details of how the national
legal aid programme works for indigent litigants. This
is because litigants more tend to approach law firms than
elsewhere for their legal help.
At
the moment no senior lawyers are interested in taking
up a legal aid case because of very low fees; fees should
be increased so that senior lawyer could be engaged in
a complicated case. In view of their being extremely busy
with their briefs some special provisions may be made
with enhanced rate of fees for some senior lawyers.
The
author is advocate, Supreme Court of Bangladesh.
