What is Legal Aid?
Legal aid is help given to persons who would otherwise be unable to afford legal representation or access to the courts. Legal aid is viewed as critical in ensuring equal treatment under the law, the right to counsel, and the right to a fair trial by guaranteeing equality before the law. This article primarily focuses on the evolution of legal assistance and its ideas in Europe, the Commonwealth of Nations, and the United States.
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Legal aid is viewed as critical in ensuring equitable treatment under the law, the right to counsel, and the right to a fair trial. By offering persons entitled to welfare provisions, such as access to legal advice and the courts, legal aid helps ensure that welfare provisions are enforced. Legal aid has played an essential role in ensuring that economic, social, and cultural rights are respected. Legal assistance is critical in ensuring that individuals have access to justice by enabling the legal enforcement of economic, social, and cultural rights on an individual basis.
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The concept of legal aid denotes a broad meaning and includes counselling, paying lawyer's fees, and other incidental costs for litigation expenses. The New Encyclopedia Britannica defines legal aid as the professional legal assistance given, either free or for a nominal sum, to the indigent person who needs such help. In the definition of the term, the international commission of jurists includes providing the legal advice and representation of the courts to all those threatened with their life, liberty, property or reputation who are unable to pay for it.
Legal professionals use the phrase 'Legal Aid' to mean any or more of the following three issues-
i) Providing monetary assistance.
ii) Counseling on any legal issue.
iii) Defending a person in a court of law.
Scholarly definition of Legal Aid
In the truest sense of the words, legal aid connotes the assistance provided to weaker sectors of society in protecting their rights and entitlements under the law and constitution. The New Encyclopedia Britannica defines legal aid as the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such help.
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According to the Dictionary of Social Work, "Legal Aid is the provision of free or reduced fee legal counsel to a litigant who can't afford a private attorney."
According to R. N. Sharma, "Legal aid is essential for the survival of healthy democracy which is from on the equality, dignity and worth of man as a violence component of the society."
According to the Legal Aid Services Act, 2000, "Legal aid connotes the assistance in terms of legal advice, lawyers' fees, litigation costs and other incidental expenses, provided to the economically disadvantaged populations including those who, for various socio-economic considerations, are unable to access justice".
According to Sayed Aminul Islam, "Legal aid is the assistance given to people otherwise unable to afford legal representation or access to the court. It is neither charity nor mercy. It is a right of the poor and underprivileged selection of the society."
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The term "legal aid" is defined in the United Nations Principles and Guidelines as follows: "Legal aid" includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require. Furthermore, "legal aid" is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes."
In the definition of the term, the International Commission of Jurists includes the provisions of legal advice and representation in the courts to all those threatened as to their life, liberty, property or reputation and, by a particular, incidental fact, are unable to pay for it. Legal professionals use the phrase 'legal aid' to mean any or more of the following three issues: (a) Providing monetary aid; (b) Counseling on any legal issue; or (c) Defending a person in a Court of law.
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Types of Legal Aid Services available in Bangladesh
Several governmental and non-governmental organisations provide a variety of legal services. These services include the followings:
Legal Advice
Court Representation
Government-led Mediation
NGO led mediation
NGO led Shalish
Victim Support Service
Shelter Home/Rehabilitation Center
Alternative Dispute Resolution
Paralegal service
Court Assistance, Negotiation, Case Management & Drafting and other related programs
The investigation, Monitoring and Reporting of Human Rights Violations
Referral of cases for legal aid to GO/NGOs
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Who is Eligible for Legal Aid in Bangladesh
As per Rule 2 of the Legal Aid Rules 2001, the following persons will be entitled to receive legal aid:
(i) Any freedom fighter incapable of earning or partly incapable or jobless or whose yearly income is not more than taka 6,000.00;
(ii) Any person who is receiving old-age benefits;
(iii) Any helpless mother with a VGD card;
(iv) Any women or children who are victims of illegal trafficking;
(v) Any women or children who are victims of acid throwing;
(vi) Any person who has been allotted a house or plot to any ideal village;
(vii) Poor widow, any poor woman deserted by her husband;
(viii) Any handicapped person with earning incapability;
(ix) Any person who is financially incapable of protecting or defending his rights in court;
(x) Any person who is arrested under preventive detention law and is financially incapable of defending their rights;
(xi) Any person who has been considered by the court financially incapable or poor;
(xii) Any person who has been considered or recommended by the Jail Authority as financially incapable or poor;
(xiii) Any person considered by the Organization from time to time financially incapable or poor for the purpose of the Legal Aid Act.
For the Legal Aid Act, "financially incapable or poor" means anyone whose yearly average income is not more than taka 3000.00 only.
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Legal Aid and Provision of Existing Bangladeshi Laws
It is stated earlier that the Constitution of the Peoples Republic of Bangladesh, 1972 recognised the concept' Equality before Law', 'Equal Protection of Law' and 'Rule of Law' etc. in these concepts, the issue of legal aid is underpinned. We get the flavour of legal aid in specific provisions is a minimal scale in Bangladeshi laws, both civil and criminal.
The constitution is the supreme law of the People's Republic of Bangladesh. There are at least 26 fundamental rights guaranteed for the citizens between articles 26-44 in the third chapter of the constitution. Amongst these Constitutional provisions, the most important is equality before the law, non-discrimination on the grounds of religion, race, caste, sex etc., right to protection of the law, protection of the right to life and personal liberty, safeguards as to arrest and detention etc. In addition to the constitution, several laws also incorporate various provisions to provide legal aid to poor litigants. Order 33, Rule 1 of the Code of Civil Procedure 1908 and Section 340 of the Code of Criminal Procedure 1898 govern legal assistance to the poor and impoverished litigants. But the most influential law in legal aid in Bangladesh is the Legal Aid Services Act, 2000, which regulates the governmental legal aid system across the country.
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Access to Justice and Legal Aid in Bangladesh
In line with the 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 the Constitution of the People's Republic of Bangladesh that one of the fundamental aims of tile state is to realise a society in which equality of justice would be Secured for all citizens. Article 27 of the Constitution provides for a fundamental right that all citizens are equal before the law and are entitled to equal protection of the law. It does not require any reference to cite how illusory and meaningless those commitments and constitutional protection of fundamental rights are when we see that most indigent litigants cannot afford the cost of defending their fundamental civil rights by appointing them a lawyer or travelling to the District Court. Protection of equality before the law and equal access to rule in the constitution becomes a mere paper tiger when indigent people find themselves in the police.
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Provisions of Legal Aid in International Instrument
It has been a matter that the provision of legal aid in criminal matters is recognised worldwide. Legal aid as a human right is implicit in Articles 7,8, and 10 of the Universal Declaration of Human Rights, 1948 and, more particularly, outflows clearly and inevitably.
Universal Declaration of Human Rights, 1948 provides that all are equal before the law and are entailed without discrimination to equal protection of the law. All are entitled to equal protection against any incitement to such discrimination.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 I Article 6(3)(c) deals with legal aid in criminal cases. The right to free legal assistance to a person charged in a criminal case was guaranteed.
Besides, the United States Conference on the Prevention of Crime and Treatment of Offenders, 1965 and the International Conference on Human Rights, 1968, recognised legal aid provisions in criminal matters as attracting due importance.
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Access to Justice and Legal Aid through NGOs
Several well-known organisations mainly run legal aid programs as regular activities. These organisations can be termed mainstream legal aid organisations. The mission of these organisations is, more or less, to ensure equal protection of the law for the poor and disadvantaged. Some other organisations also run legal aid programs, but not as regular activities. These programs or activities are projects based on nature. Nine legal aid providing organisations have been deliberately selected for the current state of legal aid in Bangladesh.
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The UK's legal aid movement has been primarily due to the intensive efforts of private voluntary organisations, such as legal aid societies, social service organisations, law school clinics, and Bar Associations. In Bangladesh, some leading NGOs have pioneered the legal aid movement. Among the most prominent are Bangladesh Legal Aid and Services Trust (BLAST), Ain 0 Salish Kendro (ASK), Madaripur Legal Aid Association, Bangladesh Women Lawyers Association, Bangladesh Environmental Lawyers Association, Bangladesh Shishu Adhikar Forum (BSAF ) etc. Most of these NGOs' legal aid scheme covers a particular country area. Some have their legal status to work all over the country. Apart from court cases, these NGOs have the training, mediation, legal awareness, and counselling scheme to help indigent people solve their legal problems.
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National Legal Aid Services Organization (NLASO)
Article 27 of the People's Republic of Bangladesh Constitution guarantees that "All citizens are equal before the law and are entitled to equal protection of the law". Article 33(1) of the Constitution entails that no person arrested shall be detained in custody without being immediately informed of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner. Despite such provisions, many people in Bangladesh are deprived of their Constitutional rights to access justice due to their poverty. Most people are not only poverty-stricken but are also deprived of the minimum basic needs of life. Modern life and civilisation are beckoning off the horizon to them. Poverty, illiteracy, and lack of knowledge keep the indigent people illiterate, and wants have kept them subjugated and ignorant of the fundamental human rights and amenities. The poor litigants are unable to reach the doorsteps of the justice system as it is expensive, time-consuming and impenetrable, often leaving the indigent litigants to silently bear the agonies of injustice.
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To ensure access to justice for the poor and indigent people, the Government of Bangladesh enacted the Legal Aid Services Act 2000 (LASA). After that, the National Legal Aid Services Organization (NLASO) was established to implement the government legal aid program. NLASO provides legal aid to poor litigants who are incapable of seeking justice due to financial insolvency, destitution, helplessness, and various socio-economic conditions. The general direction and administration of the affairs and functions of NLASO are vested in the National Board of Management, which consists of 19 members and is chaired by the Hon'ble Minister, Ministry of Law, Justice & Parliamentary Affairs. There are 64 District Legal Aid Committees (DLAC) through which NLASO implements the government legal aid program at the district level. DLAC maintains a legal aid fund allocated by the government, which is spent for poor litigants upon their applications. Upazila and Union level committees are also working to spread the legal aid program at the grassroots level.
Services of Govt. Legal Aid in Bangladesh
NLASO now provides a wide range of legal services to the poor and disadvantaged. NLASO service includes the followings:
Legal Advice;
Free Vocalatnama;
Provide Advocate to help in a legal proceeding;
Provide fees for the lawyers;
Provide prices for the mediator or arbitrator;
Supply certified copies of Order, Judgment etc. with, free of cost;
Provide the cost of a DNA Test
Provide the cost of paper advertisement in CR Case
Any other assistance along with expenses for a case.
NLASO provides legal aid in cases such as Civil, Criminal, Family, Jail Appeal etc. NLASO bears the entire cost of the legal aid cases, including lawyer's fees. Therefore, a lawyer can not claim any extra fees, charges etc., from the client.
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Fundamental Principles for Government Legal Aid Services
There are mainly seven fundamental principles for Government Legal Aid Services in Bangladesh.
1. Poor Focused: Legal Aid services meet the real legal needs of poor justice seekers. Destitute justice seekers are treated with dignity and respect.
2. Accessible: Legal Aid is well advertised in the community. Poor justice-seekers can quickly come to places where applications are taken. The application process is simple. Applications are processed quickly.
3. Accountable: Legal Aid programs run following the law. Legal aid is accountable to the government for funds spent and service providers for contracted services.
4. High Quality: Legal Aid service providers act with the highest standards of professionalism to serve clients' best interests.
5. Effective: Legal Aid makes a positive difference in the lives of poor clients. Legal aid services are prompt and appropriate for clients' needs. Rights and entitlements are protected.
6. Equitable: Legal Aid operates without discrimination. The particular needs of women, children and disadvantaged groups are recognised. Legal aid takes proactive steps to raise awareness of legal assistance and to provide appropriate services to meet the particular needs of women, children and disadvantaged groups.
7. Collaborative: Legal Aid collaborates with other government and non-government organisations to ensure that poor justice seekers get the most efficient and effective services possible.
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Problems/Weakness of State-Funded Legal Aid Scheme
1) As an ex officio category, District Judge is a chairperson of each district committee. He acts as a chairperson of DLAC in addition to his regular job. Many District Judges are disinterested in legal aid programmes as they think that it is an extra job on their shoulders without remuneration. District Judges remain tremendously busy with judicial work and administrative functions of the entire judgeship. Therefore, it is difficult for him to manage extra time for legal aid functions, which ultimately impedes the legal aid programme at the district level. Many stakeholders opined that the poor and illiterate people hearing the involvement of the District Judge in the legal aid procedure sometimes get afraid of submitting applications.
2) Government created positions of 64 officers designated as District Legal Aid Officers for district legal aid offices. According to NLASO recruitment rules, these officers are to be posted on deputation from the judicial officers in the rank of Senior Assistant Judges/Assistant Judges. Out of 64 officers, only 19 officers are posted so far. The remaining 45 districts are still vacant. Judicial officers of various tires from district courts work in charge of District Legal Aid Officers in those offices. The mainstream legal aid functions such as advising, counselling, mediation, monitoring, awareness etc., are significantly hampered due to the lack of full-time District Legal Aid Officers in these offices.
3) Government legal aid covers the payment of lawyer's fee, fixed court fee, and some ancillary costs like process fee, DNA test, paper advertisement etc., relating to contesting the cases filed before the court. But the NLASO does not pay the ad valorem court fee, which is a pre-condition for filling some cases before the court. But there is no provision in LASA and/or rules framed under the law for payment of such a court fee in legal aid cases.
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Consequently, poor people get disappointed when they come to legal aid for filling cases, especially for want of ad valorem court fee. Moreover, other incidental costs relating to handling cases, such as expenses for client and witnesses' travelling, and various miscellaneous expenses, arise from time to time and are not paid by the NLASO to the clients.
4) Lawyers are critical role players in the operation of legal aid programmes, particularly in contested cases before the courts. But it is often criticised on the part of stakeholders that most lawyers do not show much interest in filing and examining legal aid cases. Many panel lawyers do not provide quality legal services to the clients. They are reluctant to take necessary steps in pending cases. Clients often make allegations against the lawyers claiming that they do not help the clients by providing information about the case's progress. Staffs and officers of the district legal aid office also allege that most panel lawyers are reluctant to submit the monthly and quarterly reports to DLAC. As a result, the legal aid office is in the dark about the status of cases filed, pending and disposed of.
5) Under the amended provision of LASA, ADR is treated as a form of legal aid. DLAO model of ADR is an excellent initiative incorporated in LASA. According to section 21A, any Court or Tribunal, if think fit, may refer the case to District Legal Aid Officer for ADR. Further to this, before filing any case on behalf of legal aid clients, DLAO, as of the first instance, attempts to settle the dispute through the ADR process with the consent of the parties. But the concerned Court/Tribunals are not referring the cases to DLAO for amicable settlement. As such, the DLAO model of ADR cannot be instituted on a large scale.
6) Lengthy legal aid service delivery process sometimes seems to be not user-friendly considering the urgent need of the poor and impoverished. There exists a lack of coordination and communication between the legal aid committees, legal aid offices, panel lawyers and the clients.
7) DLAC is facing a dilemma with filing and handling GR cases due to various complexity. The core objective and intention of the NLASO service is to support vulnerable and disadvantaged victims of crime and violence, e.g., acid, trafficking, disable, and other violence against women. However, the government service under the existing legal framework is not clear about the issue of how a victim/complainant being supported already by the office of the PP or the GRO, as the case may be, could also receive a legal aid lawyer to assist the Government Prosecutor.
8) Widespread lack of awareness and knowledge about the service amongst target beneficiaries, service providers and other stakeholders is the prime reason for the government legal aid service not achieving its target.
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References
Asadujjaman M. (2010). Access to Justice and Legal Aid in Bangladesh.
Hossaini, M. R. I., & Hossain, M. S. Legal Aid: A Process to Ensure Access to Justice and Human Rights in Bangladesh.
Jahan, E. (2015). Legal Aid in Bangladesh: Application and Commitment. International Journal of Humanities and Social Science Invention, 4(2), 2-3.
Murad, M. H., & Hossain, M. S. (2014). Legal Aid in Bangladesh: An Overview. Journal of Educational and Social Research, 4(3), 279.
Craige, H. B., Saur, W. G., & Arcucri, J. B. (1982). The practise of social work in legal services programs. J. Soc. & Soc. Welfare, 9, 307.
Mian, M. N., & Rashid, M. M. (2014). A Critical Analysis of Legal Aid in Bangladesh. International Journal of Social Science Research, 2(1), 139-150.