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STAR LAW analysis

Legal aid and access to justice: Prospects and problems

BARRISTER MD. ABDUL HALIM
USTICE 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, preaction 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.