Justice for all: The poor and the rich

Legal aid means providing assistance to those who are unable to afford expenses regarding legal matters prior or at any stage after entering into judicial proceedings. Almost every country of the world recognises the concept of equality before law. Article 27 of the Bangladesh Constitution guarantees that "all citizens are equal before law and are entitled to equal protection of law." This constitutional provision reflects the spirit enshrined in Article 7 of the Universal Declaration of Human Rights, which was adopted by the UN General Assembly on December 10, 1948. Article 7 of this landmark declaration emphatically says that the law is the same for everyone, and must treat everyone in all these categories fairly. At the same time, everyone is entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8 stipulates that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."

Constitutional mandates like rule of law, equality, fundamental and human rights become frustrated if financial hardship or inability becomes a barrier to establishing one's legal rights. Hence, the mechanism of legal aid is paramount to enable the poor and disadvantaged in seeking legal remedy by appointing lawyers for proper representation before the court. The main objective of legal aid is thus to ensure access to justice and representation before the court of law for the poor and indigent people in our society.

Both government and non-government organisations have been providing legal aid services in Bangladesh for a long time now. The Legal Aid Services Act was adopted by parliament in 2000 with the intention of upholding the constitutional promise of legal aid for the poor. Later on, the statutory organ National Legal Aid Services Organisations (NLASO) was established on June 4, 2000. Subsequently, the Legal Aid Rules, 2001 and the Legal Aid Regulation, 2001 were enacted. However, the progress became inert due to the change in government in 2001.

In 2014, the Legal Aid Rules, 2014 and Legal Aid Regulation 2015 were created afresh by the government, repealing the previous ones. Furthermore, the National Legal Aid Services Organisations (Upazila and Union Committee formation and functions etc) Regulation, 2011 and Legal Aid (Legal Advice and Alternative Dispute Resolution) Regulation, 2015 were put into action.

Alongside the Supreme Court, government legal aid services are now available in all 64 districts of the country. Legal aid offices have been established in every district, where an Assistant Judge is appointed as the legal aid officer and the District and Session Judge becomes the ex-officio chairman of the committee. These services are available in the Chowki and Labour Courts as well. Although there is a provision for legal aid committees at upazila and union levels, these committees are hardly active in reality. The Supreme Court Legal Aid Services were initiated in September 2015.

According to the rules of 2014, one is eligible to seek legal aid if they fulfil any of the following criteria: Financially indigent person whose annual income is not above Tk 1,50,000 for Supreme Court and Tk 1,00,000 for other courts; physically or mentally handicapped person who is incapable of earning and without means of subsistence or unemployed person; and freedom fighter who is incapable of earning or partially incapable or is without any employment or whose annual income is below Tk 1,50,000. Other persons who are eligible for legal aid are: persons receiving old age honorarium, poor women who are holders of vulnerable group feeding (VGF) cards, women and children who are victims of trafficking, women and children who are acid-burnt by miscreants, members of indigenous communities, any person who is a victim of family dispute or at the risk of such violence, homeless people, any person who has been allocated land or house by the government, poor widows/women deserted by their husbands, persons who are unable to establish their right to defence in a court of law due to financial crisis, any detainee without trial who cannot afford proper representation for  self-defence, any person recommended as needy or indigent by the prison authority, and any other person who is considered by the Legal Aid Board from time to time due to the financial crisis or any other socio-economic reasons or disaster in order to fulfil the mandate of the Act of 2000.

These government legal aid services have some limitations, and the limitations relating to income can affect people gravely. As per the law, only the person whose average annual income is not more than Tk 1,00,000 can avail legal aid at the lower court. This amount is limited to Tk 1,50,000 in cases at the Supreme Court. Even though on the recommendation of the Supreme Court Legal Aid Committee, it was decided at the board meeting of NLASO that "all the people who are exempted from tax will get legal aid services" back in 2017, the decision has not been implemented yet. Proper implementation of this decision can avail legal aid for a larger number of poor and insolvent people of our country.

Considering the whole scenario, the current scope of legal aid includes the following services: legal advising; legal support, which includes preparation and collection of required documents and deeds to file the case; appointment of lawyers for conducting cases in the court; counselling the parties in dispute to encourage them in alternative dispute resolution (ADR) and bring a change in litigation mentality; and actions to rehabilitate the poor who are released from jail.

The rehabilitation programme for those released from jail, in spite of having immense importance in the socioeconomic prospects of Bangladesh, is still not available in our government/non-government legal aid provisions. In a parliament session, probably around 2019, the Prime Minister emphasised the necessity of incorporating "rehabilitation related legal aid" in her parliamentary speech. So, we can hope that rules related to such legal aid will be legislated and implemented in the near future.

The Legal Aid (Legal Advice and Alternative Dispute Resolution) Regulation, 2015 intents to resolve disputes within the shortest period of time, following all social norms, and to ensure a win-win outcome for the respective parties in dispute so that the parties can avoid the sufferings of going through regular judicial proceedings. The District Legal Aid Officer has been empowered to resolve certain disputes through arbitration. Any court or tribunal can send a case in trial to the District Legal Aid Officer for ADR as well. The resolution agreement or the report authorised by the legal aid officer is considered to be a valid deed and can be produced as evidence in any legal proceeding. Such an effective procedure is undoubtedly worthwhile. Nevertheless, since the legal aid officer is an assistant judge, his jurisdiction to adjudicate a pending case of the Joint District Judge Court remains questionable due to different jurisdictions. So, the appointment of a Joint District Judge or any other judicial officer of equivalent rank instead of an Assistant Judge as the legal aid officer can be taken into consideration to avoid all the debate, as well as  to make the ADR process more dynamic and effectual.

The main purpose of observing Legal Aid Day is to raise awareness about legal aid and access to justice among the marginalised populations of our country. An increased number of activities and programmes need to be introduced on the part of the government, as well as by non-government organisations. Alongside the government legal aid programme, a considerable number of NGOs have been working in this arena. The legal practitioners community, such as the Bar Council and Lawyers Associations, are expected to play an imperative role in taking forward the legal aid culture of Bangladesh. The consolidated efforts of everyone associated with the legal system can effectively ensure access to justice for the disadvantaged classes and ascertain that justice is delivered for all, the poor as well as the rich.

Justice M Enayetur Rahim is a Justice at the Supreme Court of Bangladesh, High Court Division and Chairman of the Supreme Court Legal Aid Committee.