A Comparative Study on Legal Aid

A Comparative Study on Legal Aid

Introduction:

In a democratic country it is a prerequisite that all citizens get economic and social justice. Therefore, as long as poor exist in the society, legal aid will be necessary to uphold human rights and equality. Realizing the importance of legal aid in a given social atmosphere the developed countries like UK, U.S.A. and Canada have adopted the legal aid programmed. In these developed nations legal aid has been identified as an effective instrument for erasing the socio-economic disparities in their societies. It is for this reason that the benefit of legal aid has been extended to the deserving members of the society not as a charity but as their civil right, having the Constitutional backing and support. Legal aid is an instrument to achieve protection in law is also embedded in the Constitution of Bangladesh. Bangladesh also a developing country of the South East Asia, having had many praiseworthy indices earning worldwide recognition. The previous concept of ‘police state’ has been transformed into a welfare state. Now Governments of all states irrespective of its standing in the international community is becoming increasingly concerned about the welfare of their citizens. In this regard, the issue ‘legal aid’ is very important. According to Lord Dennning MR, the greases revolution in the law since the post Second World War has been the evolution of the mechanism of the system for legal aid.Legal empowerment both advances and transcends the rule of law. It advances the rule of law in the sense that where the poor have more power they are better able to make government officials implement the law and influential private parties abide by it. Such power also enables disadvantaged groups to play a greater role in local and national law reform. In these crucial respects, it builds good governance. The third paragraph to the Constitution of the People’s Republic of Bangladesh, 1972 states that-it shall be a fundamental aim of the State to realise through the democratic process to socialist society, free from exploitation, a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens ;So it is clear from the above paragraph that the Government of Bangladesh set a target to develop a socialist society which will be free from exploitation and society where rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.

It is one of the principles of Natural Justice that “Nobody should be condemned unheard”. That is, before condemning a person, the judge must hear the person, if he has anything to say to prevent the miscarriage of justice.32’ Again, article 27 of the Bangladesh Constitution, 1972 provides that all citizens are equal before law and are entitled to have equal protection of law. In the case of Dr. Neelima Ibrahim Vs. Bangladesh, 32 DLR (1980) 201, it was held that the principle of audi alterem partem (hear the other party) unless expressly excluded by law or by the nature of the objects of any particular law is to be implied to have been proved in every statute. But the fact is that due to financial constraints and social inequality not all are equally privileged to get the benefits of law. Thus, jurisprudential concepts of ‘equality before law’, ‘equal protection of law’, ‘rule of law’ have provided in the past, the rationale for legal aid movement.In the case of Bandhu Mukti Morcha Vs. Union of India, (1984) 3 SCC 161, the former Chief Justice of Idia P.N. Bhagwati observed:

“Where one of the parties to a litigation belongs to a poor and deprived section of the community, and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the ‘adversary system of justice’ because of his difficulty in getting competent legal representation, and more than anything else, his ability to produce relevant evidence before the Court.”

Methodology:

Since the paper makes an attempt the study of law relating to amicus curie, the mode of analysis would be that of Descriptive Analysis. In some places illustrations have been taken to explain the concept.

Mode of Citation:

A uniform mode of citation has been followed in the project.

Data collection:

Primary data:

Primary data for the research are collected from:

1.      Constitutions.

2.      Decisions of the Higher Courts.

Secondary data:

The research is outcome of both primary and secondary data. Secondary data is collected from various sources that may be divided into the following categories:

1.         Relevant study books, records, journals other research papers, etc.

2.         Articles of Journals.

3.         Articles of Newspaper.

4.         From various survey and statistics report.

5.         From internet.

Meaning of Legal aid;

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 helps. The International Commission of Jurists includes the provisions of legal advice and representation in the Court to all those threatened as to their life, liberty, property or reputation, who are unable to pay for it. The objectives around which the programmed of the legal aid is woven by the developing countries, is that there should be a uniformity of law for the poor and the privileged sections of a democratic country. And equal also mean the equal opportunities  The dictionary meaning of the term ‘aid’ is ‘assistance’. So, to ordinary aid’ will mean ‘legal assistance’. The concept ‘legal fling and includes counseling, payment of lawyer’s cost for expenses of the litigation. Britannica defines legal aid as ‘the professional legal free or for a nominal sum, to indigent persons in.The International Commission of Jurists, in the Definition of the term, includes the provisions of legal advice and Representation in the Courts to all those threatened as to their life, liberty, Property or reputation who are unable to pay for it. Legal professionals us4 the phrase ‘legal aid’ to mean any or more of the following three issues

(a) Providing monetary aid; or

(b) Counseling on any legal issue; or

(c) Defending a person in a Court of law

                                                                       

Legal Aid System in Bangladesh

In an underdeveloped country, majority of the population are poor and illiterate which makes legal aid a necessity to uphold human rights and equality. The Government took formal initiative for enacting legal aid laws only in 1994. However, in 1996, the resolution of 1994 was repealed because it was found that only handful of litigants actually received legal aid from these governmental initiatives. It was in 2000 when the Government in assurance of financial cooperation by the Canadian International Development Agency (CIDA) made an imitative to provide legal aid to indigent litigants. The Government passed the Aingoto Sohoyota Prodan Ain 2000 (Act No. VI of 2000) which provides legal mechanism and access to legal aid throughout the country. The main aim of enacting the Act is to provide legal aid to the people who are unable to get the justice due to financial crisis or due to different socio-economic reasons.

Definition of Legal Aid as per law:

Legal aid must not be viewed as extraneous to the legal system. It is neither a charitable sentiment, nor a utopian project, and should be considered a normal function of the justice system. According to section 2(a) of the Act, “Legal Aid” means to provide legal aid to people who are unable to get the justice due to financial position or due to different socio economic condition such as the payment of lawyer’s fees, etc. Thus, section 2 (a) of the Act broadly defines ‘Legal Aid’ so as to include counseling, payment of lawyers fees and other incidental cost for expenses of litigation.

Legal Aid in Civil Matters:

As regards civil matters, Order XXXIII of CPC deals with the ‘pauper’ suit. The Conscious Law Dictionary says that a pauper, is a poor person especially one so indigent as to depend on charity for maintenance or one supported by some public provisions; one so poor that he must be supported at public expense. The words ‘pauper’ and ‘poor’ have nearly the same meaning and they both embrace several classes. But Explanation to rule 1 of Order XXXIII of CPC provides that 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 such suit, or where no such fee is prescribed, when he is not entitled to property worth five thousand taka other than his necessary wearing-apparel and the subject-matter if the suit.

Legal Aid in Criminal matters:

The need for legal aid is felt more in criminal matters as the life, property and personal liberty of a person are inseparably connected there. As regards criminal matters, section 340 Cr. P.C. states that an accused should be defended by a lawyer and he must pay the fees and nothing more. Commenting on section 340 (1) of the Code of Criminal Procedure, 1898, the Supreme Court of India observed that the right conferred by section 340 (1) does not extend to a right in an accused person to be provided with a lawyer by the State, or by the police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity. In the case of Clarence Earl Gideon Vs. Wainwrght, 1963, the USA Supreme Court has recognized that it is the right of undefended accused to have a lawyer at the cost of the state. In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defence. The leading case on Sixth Amendment to USA Constitution provides that as to the right of counsel, The Courts have “no power and authority to deprive an accused of his life or jibety unless he has or waived the assistance of counsel”.

Legal aid in different countries

Legal aid in UK

In UK, legal aid is administered by the Legal Services Commits and is available for most criminal cases, and many types of civil with exceptions including libel, most personal injury cases (which now dealt with under Conditional Fee Agreements, a species contingency fee) and cases associated with the running of a busy Family cases are also often covered. Depending on the type of. c.a~ legal aid may or may r.ot be means tested. Although the European Courts have recently ruled that a lack of lea. Aid-libel may be a breach of the right to a fair trial, it is still unknown this will affect UK libel trials.

Criminal legal aid is generally provided through private firm solicitors and barristers in private .practice. There is a limited nuke of public defenders. Civil legal aid is provided through solicitors banisters in private practice but also non-lawyers working in centers and not-for-profit advice agencies.

Legal aid in the U.S.A

In a series of cases, the US Supreme Court has ruled that Am indigents do have a right to counsel, but only in criminal cases. A states (like California) also garage the right to counsel in “I. criminal” cases like paternity actions and involuntary terminate. Parental rights. The federal government and some states have of public defenders that assist indigent defendants, while other has systems for outsourcing the work to private lawyers.

Legal aid in Bangladesh

The Constitution of Bangladesh has in clear terms recognized the basic fundamental human rights. One of the basic fundamental rights is that all citizens are equal before law and are entitled to equal protection of law. Majority people are improvised. They cannot access themselves to justice to protect and vindicate their legal rights & lawful causes. To address this problem legal aid services have been activated under the Legal Aid Act, 2000’, The law provides for giving financial support to poor people to institute or defend cases in courts. Legal Aid Committees headed by the respective. District Judges , have been constituted with panel of lawyers in each district. A statutory body called National Legal Aid Organization has been established and there~ is a National Legal Aid Board consisting of 19 members. The members represent government officials as well as representatives from civil societies.The National Legal Aid Committee is looking into the hitherto neglected jail appeal matter. There are many poor convicts whose jail appeals are not properly cared and conducted in the courts
on’ the types of cases they will take, because .there are always too many potcntial clients and not enough money to go around. Common types of cases include: denial or deprivation of government benefits, evictions, domestic violence, immigration status, and discrimination. Some legal aid organizations serve as outside counsel - to small nonprofit organizations that lack in-house counsel. Funding usually comes from charities, private donors, the federal government and some local and state governments. Most typical legal aid work involves counseling, Informal negotiation, and appearances in administrative hearings, as opposed to formal litigation in the courts. However, the discovery of severe or recurring injustice with a large number of victims will sometimes justify the cost of large-scale’ impact litigation. Education and law reform activities are also sometimes undertaken. The members as mentioned in I (m) and 1 (n) shall be appointed for two years but the Govt. may remove them from their duties before the expiration of two years; and also the members may also resign from the duty before  the expiration of the time by signing the Govt. approved form.

Examples of criminal charges

These are examples of criminal matters for which legal aid may be available

• assault
• drug possession
• theft
• burglary
• fraud
• drunk-driving
• arson
• having an offensive weapon
• receiving stolen goods
• threatening to kill
• rape and other sexual offences
• murder or manslaughter.

How to apply for Criminal legal Aid

All applications for getting legal aid must be submitted to the National Board of Legal Aid or in appropriate cases to the District Legal Aid
Committee. If an application is rejected by the District Committee and the person feels aggrieved by that decision, then the applicant may prefer an appeal to the National Legal Aid Board within 60 days of the pronouncement of the decision of the District Committee.

{Sec: 16 provides for how to apply for legal Aid. As per this section
Apart from the aforesaid provisions the legal Aid Rules: 2000 provides for the following provisions’ for how to make an application for Legal Aid.

(1) The candidate shall apply, along with his Full name & address and the underlying causes for his application, in a white paper.

(2) If the application is made for legal aid for any matter in the Supreme Court, it is to be submitted to the Chairman of the organization, on the other hand, if it is for legal aid in any contract, it is to •be made to the chairman of the District Committee.

(3) The application accepted by the committee is considered in its next meeting.

(4) If it is not possible for the committee to take decision based on the submitted information then the committee may require for further information.

(5) Once any application considered to have been accepted, the applicant litigant shall be informed in the prescribed manner. (Rule: (3) of legal Aid Rules: 2000)

Who Can Apply for Criminal Legal Aid?

As per Aingoto Sohaiota prodan Ain 2000, there is no reference as to the eligibility criteria to get both types of legal aid. Subsequently, the Ministry of Law, Justice and Parliamentary Affairs formulated guidelines and rules under section 24 of the Act to carry out the objectives of the Act. The guidelines enumerate the following categories of persons as eligible for seeking legal aid:

a. Freedom fighter who is incapable of earning or partially incapable of earg or who is without any employment or whose annual income is below six thousand taka;

b. The person who is receiving old age honorarium;

c. Poor women who is holder of VGF Card

d. Women and children who are victim of trafficking;

e. Women and children who are acid-burnt by the miscreants;

f. Any person who has been allocated land or house in an “idea/fl0del” village poor widow, women deserted by her husband;

g. Physically or mentally handicapped person who is incapable of earning and without means of subsistence;

h. Person who is unable to establish his/her right to defend him/her in a Court of law due to financial crisis;

Any other person who are considered by the Legal Aid Board from time to time due to the financial crisis or any other socio-economic reasons or disaster.
In this guideline, the phrase “poor and financially poor person” will be used to mean persons whose annual income is not above three thousand taka.

Lacunas of the Act:

On a careful analysis of the Aingoto Sohaiyota Prodan Ain (Act No. VI of 2000), the following loopholes may be worth noting:

1. The Act does not specify criminal cases for which legal aid can be provided.

2. The process of consideration of application can be identified as another source of delay in meeting the ends of justice as the members of the Board and Committee who will consider the applications are often very busy. Hence, it so happens that the applicant does not get justice when really needed.

3. In comparison with the number of legal aid seekers, the number of meetings held to consider these application falls short of requirement, as the Board holds at least one meeting in every three months and the Committee holds one meeting in every month.

4. The accountability of the members of the Board and Committee are not ensured in the Act and for this reason, this Act may meet the same fate as other Acts of Bangladesh. It will be treated as mere ambitious work of the government and this Act will help the Govt. to speak up in national and international seminars but the fate of the poor people will remain largely unchanged.

5. The procedure of the selection of the application is not clear in this Act, i.e. the basis of consideration, the criteria for selection and above all the requisite number of members to give consent to such granting of application is not clear.

6. The members of the committees being from the upper strata of SOC1C. often fail to realize the depth of miseries of these persons and cannot acquaint themselves with their problems.

7. In the Upazilla and Union committees, the inclusion of Chairman and14 other members makes the system more complex as it will be seen in most of the cases the legal aid seekers are the victim of the activities of these people.

8. By section 26 of this Act, the govt. repealed the previous Legal Aid Committee formed under the Resolution 74-Law/1997 and seized all funds of that Committee but the fate of the applications and cases pending in the Courts have not been clarified.

It is clear that, there are no clear criteria to determine criminal legal aid. The provision is same for both types of legal aid. Govt. should take initiative in this regard.

Conclusion

The constitution of Bangladesh, 1972 provides different rights of the people and empowers the HCD for the enforcement of fundamental rights.  However because of the cost involved in the process of litigation, the poor and vulnerable sections of society seldom get the benefit of the Constitutional guarantee of the protection of rights. Thus, if we mean actual and real protection we need to consider the provision of legal aid, as well as, measures ensuring that court services are accessible to the people. In conclusion it can be rightly said that despite the resource constraints faced by our country the government is committed and made a determined to bring legal aid to the doorsteps of the poor and aggrieved specially in criminal matters by enunciating this Act.

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