Free Access to Justice for the Poor through Legal Aid: Bangladesh Perspective
Law is a gift of God and a decision of sages.1 It has two great objects: to preserve order and to do justice: and the two do not always coincide. Plato expressed that equity is a necessary element supplementary to the imperfect generalization of legal rules.2
Seven hundred years old clarion call of Magna Carta- ‘To no one will we sell, to no one will we refuse or delay the right to justice” very pertinently embodies the principle of legal aid. However, it was only when the colonial hangover of the Indian legal system was pointed by the Committee for Legal aid and was stated that the shadow of law created by the British to suit their convenience, has resulted in an insensitive system especially towards the socio-economic problems of the masses.3
The rise of welfare state in the twentieth century has brought forward with it the concept of legal aid for those who cannot afford the cost of litigation.4 Bangladesh is a developing democratic country of the world. The Constitution of the People’s Republic of Bangladesh, 1972 has theoretically ensured access to justice, fair trial, rule of law, fundamental rights, human rights, and equality before law.
But no amount of the constitutional protection of these high ideals can help a poor citizen of a country like ours to protect his rights and liberties unless there is some one to stand by his side to provide legal aid.5 <href=”#_ftn1″ name=”_ftnref1″ title=””>In this thesis paper, at first I’ll give a concept of legal aid with its general meaning as well as the meaning given in the Legal Aid Act, 2000 ; after that there will be a brief discussion about some provisions of international and national legal instruments in which the concept of legal aid has been ensured or may be found indirectly; then I’ll try to analyze some important provisions of the Legal Aid Act, 2000 and show how far the legal aid is made available through this Act by the government of Bangladesh as well by the NGOs, and the limitation if any. Finally I’ll give some recommendations to GOB legal aid programme and NGOs legal aid programme and as to whether NGOs can play a role in mitigating the gap in the process and the GOB programme.
1.2 Meaning of Legal Aid
The concept ‘legal aid’ denotes a wide meaning and includes counseling, payment of lawyer’s fees and other incidental cost for expenses of the litigation.7 The general meaning of the term “Legal Aid” is a legal support, social security, social arrangement, extending and providing special assistance or help to the poorer and weaker members to enable them enforce their legal rights through legal process.8
Legal aid means the assistance in the legal matters both inside and outside the courts to the indigent litigants.9 The New Encyclopedia Britannica defines legal aid as the ‘the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such help. Section 2(a) of the Legal Aid Act, 2000 provides that Legal Aid means providing legal advice, paying lawyer’s fees and cost of litigation including providing any other assistance to those who suffer financial insolvency, destitution, helplessness or, are unable to access justice due to various socio-economic conditions.10
1.3 Importance of Legal Aid
The modern justice system through judicial adjudication is very costly and that cost has been the most difficult factor for the average people to get justice in both developed and developing countries.11<href=”#_ftn2″ name=”_ftnref2″ title=””> In a suit where one party is poor and the other party is opulent, here equality, rule of law, and fair trail, ensured in our constitution and other constitutions and documents of the world can not be maintained because the opulent party is able to appoint an expert advocate who can easily take the fruits of the suit in favour of his clients which the opposite advocate fails to do.
In the case of Bandhu Mukti Morcha v. Union of India12, the former chief justice of India 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 socials and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent.13
Therefore, as long as poor exist in the society, legal aid will be necessary to uphold human rights and equality. Thus, the provision of legal aid is essential for the safe walk of democracies, on the track of rule of law and the equal protection of laws.14
1.4 Access to Justice through Legal Aid
The main object of providing a legal aid scheme is to make the law and legal services accessible, to all in commitment to the internationally recognized principle of equality of justice. Unless legal aid could be claimed as of right, it cannot be said that equality before law has been achieved.15
In a democratic country, it is a prerequisite that all citizens get economic and all justice. In developing countries, the law is often discriminatory while the process to access justice is slow, cumbersome and complex. The result is that people especially the poor have inadequate and unequal access to justice through the formal system. Thus, they tend to rely more on customary justice system. Improving access to justice requires that both these systems be made to work justly and equitably and this is possible by way of giving legal aid to the indigent litigants only.
The objectives around which the programme 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.16<href=”#_ftn3″ name=”_ftnref3″ title=””>
1.5 Cases Where Legal Aid may be given
Providing legal aid to some people benefits even those who do not get legal aid by changing community standards; but in order for this to happen, legal aid must be to a significant number of people. Legal aid is thus an important issue in the development of a society. The emphases on the group who are the beneficiaries are disadvantaged in society.
Legal Aid may provide representation in the types of cases:
- Public benefit – This includes Welfare, food stamps, medical assistance, supplemental
- security income, social security and unemployment compensation.
- Housing Problem- This includes eviction, lockouts, confiscation of personal foreclosures, discrimination (racial and against families with children), disputes with landlords over repairs, rent, contracts, deposits or difficulties with public housing.
- Consumer Cases- This includes debt problems, contracts, warranties, repossessions, wage garnishments, discrimination, and counseling on small claims court and bankruptcy procedures.
- Family Law Issues- This includes divorce, adoption, custody, support, visitation, guardianship, restraining orders, defense in paternity suits, and modification of decrees.
- Senior Law Problem- This includes Medical, Medicare, guardianship defense, and issues involving nursing homes or other types of care facilities.
- Juvenile Legal Problems- This includes expulsion and suspension from school and other disputes involving schools. In addition, some offices may represent juveniles in criminal proceeding; however, this is by court appointment only.
- Immigration- Some programs handle a limited number of cases in the area of immigration law.17<href=”#_ftn4″ name=”_ftnref4″ title=””>
CONCEPT OF LEGAL AID ENSHRINED IN INTERNATIONAL AND NATIONAL LEGAL INSTRUMENTS
2.1 Concept of Legal Aid in International Legal Instruments
It is vividly expressed in the Universal Declaration of Human Rights, 1948 that all are equal before the law and are entitled without any discrimination to equal protection of the law.18<href=”#_ftn5″ name=”_ftnref5″ title=””> Besides this, various international documents have also been framed for the protection of these rights which imply the concept of legal aid.19
2.1.1 Universal Declaration of Human Rights, 1948
Under the provisions of the Universal Declaration of Human Rights, 1948 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 and everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.20
2.1.2 International Covenant on Civil and Political Rights, 1966
According to the provisions of the International Covenant on Civil and Political Rights, 1966, all persons shall be equal before the courts and tribunals and in the determining of any criminal charge against him, everyone shall be entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own-choosing; to be informed, if he does not have legal assistance of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.21<href=”#_ftn6″ name=”_ftnref6″ title=””>
2.1.3 African Charter on Human and People Rights, 1981
It is also provided in the African Charter on Human and People Rights, 1981 that every individual shall be equal before the law and entitled to equal protection of the law.22
2.1.4 Arab Charter on Human Rights, 1994
Everyone is equal before the judiciary, and the right to judicial recourse is guaranteed for every person in the territory of a state as to the provisions of the Arab Charter on Human Rights, 1994.23
2.1.5 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, 1995
All persons shall be equal before the judicial system. In the determination of any charge against him, everyone shall be entitled to a fair and public hearing within a reasonable time by an independent and impartial court. The decisions of the court or the sentence shall be pronounced publicly, but all or part of the trial may take place in camera for reasons of public order or state secrecy or where the interests of juveniles or the protection of the private life of the parties so require according to the provisions of’ the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, 1995.24
2.2 Concept of Legal Aid in National Legal Instruments
The concept of legal aid has been found in some of the legal instruments in our country such as the Constitution of the People’s Republic of Bangladesh, the Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1898, the Legal Aid Act, 2000 and the Legal Aid Rules, 2001.
2.2.1 The Constitution of the People’s Republic of 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, 1948, it has been pledged in the preamble of the Constitution of the People’s Republic of Bangladesh 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.25
There is a stipulation that it shall be fundamental responsibility of the state to emancipate backward sections of the people from all forms of exploitation.26 Article 27 of the Constitution of the People’s Republic of Bangladesh, 1972 states the fundamental rights as follows, ‘all citizens are equal before law and are entitled to equal protection of law’. ‘Equal before Law’ implies the absence of any special privilege to any individual in his or her favour. The expression ‘equal protection of law’ is dependent and based on equal before law as one cannot be achieved without the other. Therefore, violation of one tantamount without the other.27
Protection of law that the citizens and the residents of Bangladesh have the inalienable right to be treated in accordance with law, is guaranteed 28 and speedy and fair trial are ensured.29
25 Preamble of the Constitution of the people’s Republic of Bangladesh
26 The Constitution of the people’s Republic of Bangladesh, Art.28.
27 The Constitution of the people’s Republic of Bangladesh, Art.27
28 The Constitution of the people’s Republic of Bangladesh , Art.31
29 The Constitution of the people’s Republic of Bangladesh, Art. 33
2.2.2 Code of Civil Procedure, 1908
Theprovision of legal aid is found in the Code of Civil Procedure, 1908 for those who file pauper suits. As regards civil matters, Order 33 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 of rule I of Order 33 of CPC provides that a person is a “Pauper” who 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 be is not entitled to property worth five thousand taka other than his necessary wearing-apparel and the subject-matter of the suit.30<href=”#_ftn7″ name=”_ftnref7″ title=””>
2.2.3 Code of Criminal Procedure, 1898
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 of the Code of Criminal Procedure, 1898 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 engage one for him. The only duty cost on the Magistrate is to afford him thenecessary opportunity.31
2.2.4 The Legal Aid Act, 2000 & Legal Aid Rules, 2001
The economic condition of the common people forming 90% of the total population of our country baffles description. They are not only poverty-stricken but are deprived of the minimum basic needs of life. 32<href=”#_ftn8″ name=”_ftnref8″ title=””>Above fifty percent people are unable to maintain their livelihood.33 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.
Therefore, 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 chamber34. Moreover, in our country for the disposal of a civil suit several years are required, but poor litigants after fighting one or two years, lose their every thing and rail to move the suit, so the court pronounce decree in favor of the strong party.35
Thus the poor people cannot 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 law36 It is, therefore, legal aid is essential for these people to protect their fundamental rights which is preserved in the constitution under Article-11.37
In Bangladesh, the Ministry of Law, Justice, and Parliamentary Affairs passed a resolution in 1994 to provide legal aid to poor litigants, and a particular amount of money was allocated to the District Judge. However, another resolution was passed in March 1996 repealing the Resolution of 1994. The necessity of a legislation to require legal aid was felt immensely. Several meetings of the Law Ministry paved the way to draft the legislation by 1998. Lastly, the Legal Aid Act, 2000 was passed by Parliament in January 2000 and was effective beginning April 28, 2000.
ANALYZING THE PROVISIONS OF THE
LEGAL AID ACT, 2000 AND THE LEGAL AID RULES, 2001
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.39<href=”#_ftn9″ name=”_ftnref9″ title=””>The basic features of the Legal Aid Act, 2000 have been discussed as follows:
3.1 Composition of National Legal Aid Organisation
The Legal Aid Act, 2000 provides for an Organization named “National Legal Aid Organization” which will organise and monitor proper functioning of this Act.40 The Act requires the organization to be formed by notification in official Gazette.
3.1.1 National Management Board
The Act provides that the management and administration of the National Legal Aid Organisation will be vested on a National Management Board.41 The head office shall be in Dhaka and the management board will be headed by a Chairman who is the Minister, Law, Justice and Parliamentary affairs.
This Board includes people from all walks of the society starting from MP’s nominated by the Speaker, Attorney General, Secretary of Law, Home and Social Welfare, Inspector General of Police and Prison, Vice-Chairman of the Bar Council, the President of the Supreme Court Bar Association, the Chairman of the National Women Commission, three representatives of any NGO’s nominated by the Government working for human rights and legal aid which have activities in Districts, with the Director of the Board acting as member secretary.
These members will be appointed for 2 years term. Provided that the government may remove any of the members from the post without showing any reason.42<href=”#_ftn10″ name=”_ftnref10″ title=””>
Institutional Framework and Functions of the National Board
Under the provisions of the Legal Aid Act, 2000, National Legal Aid Board will mainly act as policy-making authority and will formulate rules and policies to select a person and to provide legal aid to the people who are unable to get justice due to financial crisis and due to different socio-economic reasons, frame the schedule to provide legal aid, take initiative to organize research and educational activities to provide legal aid, telecast different programs in order to create awareness among general people about the availability of legal aid in different print and electronic media, review the application rejected by the District Committee, monitor the I activities of the District Committee, publish different books, leaflet, pamphlets etc. formaking people aware of getting legal aid, and any other activities necessary for the performance of the above mentioned activities.43
3.1.2 Director of National Legal Aid Organisation
It is provided in the Legal Aid Act, 2000 that the National Legal Aid Organisation will have a director who will be appointed by government of Bangladesh and will be responsible for implementation of the decisions of the organisation; and he discharge his functions in accordance with the direction of the Board.
However, the director will appoint employees and staff with prior permission of the Government or the Organisation.44
3.1.3 District Legal Aid Committee
The District Legal Aid Committee is solely responsible to provide legal aid at grass root level subject to the availability of fund from the Government. The committee shall invite application from the seeker of legal aid, screen the applications, determine criterion for provision of legal aid and finally provide legal aid.45<href=”#_ftn11″ name=”_ftnref11″ title=””>
Constitution of the District Legal Aid Committee
According to the provision of the Act, the District Committee shall consist of 13 members, including District and Session Judge as Chairman, the District Magistrate, the Superintendent of Police (SP) of the District, the District Jail Super, an official of the District Social Welfare, if any, the District Women’s and Children’s officer if any, the Chairman of the District Women’s Federation or his nominee, the President of the District Lawyers Associations, Government Pleader of the District, the Public Prosecutor in the District, Inspector of the District Civil Jail, if any available, one representative from any Charitable Society (NGO) in the District nominated by the Chairman of the District Committee, elected General Secretary of the District Lawyer Association, who will also be member-secretary of the Committee, and also the Chief Metropolitan Magistrate and Metropolitan Police Commissioner if the district is in any Metropolitan City.
The tenure of the nominated members of both the National and District Committee shall be for two maximum years and may be removed without reason by the government during the tenure.46
Functions of the District Committee
As per the provisions of the Legal Aid Act, 2000, the District Legal Aid Committee is responsible to provide legal aid to the people who satisfy the criteria as set up by the Board of Governors and who are unable to get justice due to financial crisis or due to different socio-economic reasons; to set up the conditions on which a successful applicant will get the legal aid; to make initiatives to make the people aware of availability of legal aid; to perform the duty invested by the Board; and any other activities necessary for the performance of these activities.47<href=”#_ftn12″ name=”_ftnref12″ title=””>
3.1.4 Upazilla and Union Committee
The Upazilla Committee and Union Committee will consist of one chairman and 14 other members. All issues relating to the Committee will be set up by the subsequent rules.48
3.1.5 Fund of the Board
The Act provides for establishment of a legal aid fund for both national and district level. The fund of the Board will come from government, foreign donation, local bodies, any other source such as any organisation or companies etc.
The amount of fund will be deposited in a government bank in the name of the Board. The amount can be drawn up by the joint signature of the Chairman and the member Secretary of the Board. In cases where necessary the District Committee will get found from this fund. The board will meet all types expenses from this fund. The Board will be able to invest this fund in any if the government authorized project.
Fund of District Committee will be a fund of District Legal Aid Committee consisting of government donation, donation from the local authority, company or person, donation from the foreign organization and any other fund obtained by the Committee from any other sources.
According to the provision of the Legal Aid Act, 2000, financial assistance is to : provided to the underprivileged based on the fees they incur; for example, lawyer’s court fees and other expenses. The committee that has been formed is responsible to utilise the funds, including criteria for eligibility. Funds are to come from national revenue but the officials responsible believe that external support will be necessary to get the programme up and running.49
3.1.6 Panel of Lawyers
The provisions as to panel lawyers under the Legal Aid Act, 2000 are as follows:
For the Supreme Court panel would include a group of lawyers who have practice experience not less than 7 years in the High Court Division; for District Court panel would include a group of lawyers who have practice experience not less then 5 years; once an application for legal aid is granted, the Board or committee shall appoint a lawyer from among those in the panel provided that in such appointment will be considered as far as possible.50<href=”#_ftn13″ name=”_ftnref13″ title=””>
3.1.7 Supply of Papers and Documents
The legal aid lawyers and the court to whom the applicant is seeking redress will all necessary papers and documents related to the case concerned free of cost except the court fees.51
3.2 Persons eligible for Legal Aid
In theLegal Aid Act 2000, there is no reference as to the eligibility criteria to get 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.52 As per Legal Aid Rules, 2001, the freedom fighter who is incapable of earning or partially incapable of earning or who is without any employment or whose annual is below six thousand taka; the person who is receiving old age honorarium; women who is holder of VGF Card; women and children who are victim of trafficking; women and Children who are acid-burnt by miscreants; any person who has been allocated land or house in Model/Ideal villages, poor window, women deserted by her husband; physically or mentally handicapped persona who is incapable of earning and without means of subsistence; person who is unable to establish his/her right to defend him/her in a court of law due to financial crisis; any person who has been detained without trial and is in capable of defend himself due to financial crisis; any person who is considered by the court as poor or helpless; any person who is recommended by the jail authority as financially helpless or poor; 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 are eligible for availing legal aid.
In this guideline, the phrase “poor and financially poor person” will be used to mean person whose annual income is not above three thousand taka.53<href=”#_ftn14″ name=”_ftnref14″ title=””>
3.3 Application Procedure for 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, than 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.54
Apart from the previously mentioned provisions, the Legal Aid Rules: 2000 provides for the following for how to make an applicant for Legal Aid.
The candidate shall apply, along with his Full name & address and the underlying causes for his applicant, in a white paper. If the applicant 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 chairman of the Committee.
The application accepted by the committee is considered in its next meeting. If it is not possible for the committee to take decision based on the submitted information, then the committee may require for further information, and once any application considered to have been accepted, the applicant litigant shall be informed in the prescribed manner.55
3.4 Fees of Legal Aid
As per the Legal Aid Rules, 2001 for conducting legal aid cases legal aid lawyers will get maximum of taka 1000.00 for drafting a plaint or memo of appeal; maximum of taka 1000.00 for drafting of a written statement; maximum of taka 600.00 for preparing an application or written statement of any miscellaneous case; maximum of taka 500.00 for any interlocutory applications or any reply of thereof; maximum of taka 100.00 for any time petition; maximum of taka 500.00 for final hearing of a family matter; taka 800.00 for hearing of a civil suit; taka 500.00 for argument of a criminal case; and taka 200.00 for any urgent application paid out of the legal aid fund.
To conduct criminal cases hi courts other than High Court Division the panel lawyers will get paid as per the rate the Assistant Public Prosecutors are paid and for conducting a case in the Supreme Court, maximum of taka 2000.00.56<href=”#_ftn15″ name=”_ftnref15″ title=””>
IMPLEMENTATION OF GOVERNMENT LEGAL AID VERSUS NGO LEGAL AID
Realising the importance of legal aid in a given social atmosphere the developed countries like UK, USA, and Canada have adopted the legal aid programme. In these developed nations, legal aid has been identified as an effective instrument for erasing the socio-economic disparities in their societies. Therefore, understanding the government machinery and NGO’s efforts in providing legal aid is of importance.57
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In 40 year time of its independent constitutional history, legal aid movement in Bangladesh has not gained any momentum at the governmental level until 2000. It was in 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.58
4.1 Enactment of the Legal Aid Act, 2000 by the Government of Bangladesh
With the enactment of the Legal Aid Act, 2000 and forming committees to dispose off cases, the government’s initiative cannot be ignored.59 The Legal Aid Act (Act No. VI of 2000) comprehensively provides for the declaration of the activities in National and District level. At national level there is National Legal Aid Board, at district level there are District Legal Aid Committees, in the Upazilla or Thana level there are Upazilla Legal Aid Committees and in Union level there are provisions of Union Legal Aid Committee.60
4.1.1 The performance of the National Legal Aid Organisation at a Glance
According to statistics published in December 2003 by the National Legal Aid Organisation, legal aid has been given in total of 8208 cases which include 1296 civil cases, 5915 criminal cases, 886 family matters and 111 miscellaneous cases. In 61 districts under the coverage of legal aid programme 1807 panel lawyers in total have been appointed; total fund granted for legal aid is Tk. 1,87,23012 out of which Tk. 40,88,723 has been expended and the balance is Tk. 1,79,15,076.
The reason of such a big balance against the background of unmanageable number of indigent litigants is lack of proper publicity, awareness among indigent litigants and some other operational lacunae in the handling of legal aid programme.
In the fiscal year 1996-1997, the total allocation for legal aid fund was 13.7 million Taka, to be distributed through the District and Sessions Judge of each district, the amount varying in proportion to the size of the respective district. In 2001-2002, the total allocation for this legal Aid Fund was 2.5 million Taka, in 2002-2003, 3.0 million Taka, in 2003-2004, 5.0 million Taka, in 2004-2005, 10 million Taka were sanctioned for legal aid.61<href=”#_ftn17″ name=”_ftnref17″ title=””>
During 2005 to 2006, legal aid has been given in total of 11808 cases, in 61 districts total fund granted for legal aid is Tk. 54,60,000. During 2007 to 2008, 3267 panel lawyers in total have been appointed throughout 61 districts under the coverage of legal aid programme. No statistics of 2004-2005 was available in the Legal Aid Cell, Ministry of Law, Justice and Parliamentary Affairs. Statistics of 2005-2008 are also not coherent and done incompletely. Even the Supreme Court Report, 2007 is silent on this point.62
4.2 Legal Aid through NGOs
The Legal Aid support of the NGOs is worth mentioning. In Bangladesh some leading NGOs have pioneered the legal aid movement. Among them most prominent are Bangladesh Legal Aid and Services Trust (BLAST), Ain o Salish Kendro (ASK), Madaripur Legal Aid Association. Bangladesh Environmental Lawyers Association, Bangladesh Shishu Adhikar Forum (BSAF) etc.
4.2.1 Legal Aid by BLAST
The Bangladesh Legal Aid Services Trust has national networks of lawyers and currently provides legal aid and mediation services in eighteen districts and five legal aid clinic.63<href=”#_ftn18″ name=”_ftnref18″ title=””>
Vision and Mission
BLAST envisions a society based on the rule of law in which every individual, particularly the poor and the disadvantaged women and children access to justice and there human rights are respected and protected.64
Goals and Strategies
The goal of BLAST is to contribute in increasing general awareness of the concept of legal redress and the availability of free legal aid to the poor. BLAST has developed its expertise in protecting the rights of people in areas like labour rights, violence against women, trafficking, child rights, legal counseling and training for community awareness and Salish.65
The BLAST model for providing legal aid has been very effective. It combines use of paid staff and private lawyers who are basically providing volunteer services for a modest stipend which does not cover a great deal more than their out of pocket costs. In choosing this approach BLAST has leveraged services for poor people which have a market value that far exceeds their cost.66
Activities and Programmes of BLAST
BLAST has been providing legal aid to the needy selected on the basis of low range of income (TK. 3000/- or less per month) on pro bono basis. BLAST organized meetings with the local journalists at its 19 unit offices with a view to involving the local journalists with the activities of BLAST, identifying the problems of the people at the grass root level, conveying the activities of BLAST to the people at grassroots level through newspapers and making them aware of their rights through print and electronic media. The national and local level journalists of both print and electronic media took part in the meetings.67<href=”#_ftn19″ name=”_ftnref19″ title=””>
The Performance of BLAST at a glance
During the April 2001 to March 2002, BLAST dealt with 7,541 cases in litigation and resolved 2,225 of them. Of the cases that were resolved through a court judgment, BLAST won 85% of the time. A significant number of cases done by BLAST involve family disputes which includes failure to pay maintenance and child support, illegal dowry demands and domestic violence.
During April 2002 to March 2003 3,021 cases were filed in total in BLAST among which the number of settled cases was 2,412. During the April 2003 to March 2004, BLAST dealt with 4,049 cases and resolved 2,514 of them. During April 2004 to March 2005, April 2005 to March 2006, April 2006 to March 2007 and April 2007 to September 2007, the total number of field cases in BLAST were 5959, 6418, 6438 and 3,765 respectively. Among these, the number of settled cases was 2991, 3940, 4716 and 2377 respectively. 7,572 complaints pending for mediation and litigation Up to September 2007. Total Case filed 44,071, settled 28,090 (64%), pending case 15,981 (36%). Out of 28,090 settled cases 19,494 (69%) were in favour of its clients, 2,307 (8%) were against its clients and 6,289 (22%) were dismissed for default due to absence of clients.68
4.2.2 Legal Aid through Ain o Salish Kendra (ASK)
Ain o Salilsh Kendra (ASK), (literally. Law and mediation Centre), a legal aid and human rights organisation, was started in 1986 with the purpose of providing free legal aid, particularly to women, workers and working children, and to promote and protect human rights. Founded by nine individuals, including lawyers, professionals, social workers and development workers, it began life in a small garage, loaned by a supporter.69<href=”#_ftn20″ name=”_ftnref20″ title=””>
Goals and Strategies of ASK
ASK’s goal is to create a society based on equality, social justice and the rule of law with a special focus on gender equality. It has consultative status with UNECOSOC and continues its commitment to promoting human rights within a democratic framework.
ASK’s strategies are generating human rights awareness and activating responses against human rights violations (HRVs); Promoting community activism for gender equity and social justice; Ensuring access to justice through legal aid; Providing emergency support service; Campaigning and advocacy for law and policy reforms; Ensuring transparency and accountability in public institutions; Enhancing capacity of human rights defenders; and Ensuring an effective institutional system.
Programmes and Activities of ASK
Human Rights Awareness
One of ASK’s major strategies has been to create awareness of human rights, in order to generate a demand for rights and entitlements within the community and to make state institutions and duty bearers responsible for promotion, protection and prevention of human rights. A wide range of persons from the grass roots to state level institutions is included in ASK’s awareness raising programmes.
Community Activism for Gender and Social Justice
The Gender and Social Justice Programme has been instrumental in developing and sustaining Community Based Organizations (CBOs) that promote and protect human rights. Significant among these are Manobadhikar Songrokkhan Porishod (MSP) and Manobadhikar Nari Sadar thana level. Gender and Social Justice (GSJ) Unit promotes community activism for gender and social justice in the working areas. The Unit has assisted in the formation of Manobadhikar Ainjibi Porishod (MAP), a federation of lawyers in the districts, who offer legal advice and voluntary services to the disadvantaged.70<href=”#_ftn21″ name=”_ftnref21″ title=””>
Access to justice
Access to justice through legal support and other related services beyond the ambit of legal services has been an overarching goal of ASK. Four units (Mediation and Rapid Response, Litigation, Outreach and Child Rights Unit) have adopted an interconnected and coordinated approach to provide access to justice. ASK’s legal support system set up in Dhaka is replicated now in villages by ASK’s partner NGOs such as BRAC. Disadvantaged women, workers, working children and economically well off yet vulnerable women have gained access to both the formal (court) and informal (stitionhahsh) systems of justice.
The Litigation Unit facilitates access to justice by conducting court cases free of charge. The Unit receives criminal offences such as rape, murder, torture, acid burns, dowry violence, polygamy, detention matters, civil, revision, criminal appeal, etc. When mediation Unit to the Litigation Unit for processing in the court. Panel lawyers mainly conducted cases in the High Court Division and Labour Court in Dhaka, while staff lawyers conducted district court cases and outside Dhaka and in some cases in the Labour Court.71
Legal Aid Clinics
In collaboration with local Partner Non-Government Organization, the Unit set up three legal aid clinics in 2008, where women’s access to justice was enhanced through legal and counseling advice to women in the above three districts. The Partner Non-Government Organization staff ran the clinics under regular supervision and monitoring by ASK staff lawyers. This included examining medication files, case files, reports and registers followed by necessary suggestions.72<href=”#_ftn22″ name=”_ftnref22″ title=””>
The Child Rights Unit has developed a flexible system of non-formal education for working children in drop-in centers. The Unit provided health and legal support to 1600 working children in 2008. ASK has also sensitized local communities to the need for protection of the rights for the child and about negative consequences of child labour.
Success of ASK
Access to justice though legal support and other related services beyond the ambit of legal services has been an overarching goal of ASK. Four units (Mediation and Rapid Response, Litigation, Outreach and Child Rights Unit) have adopted an interconnected and coordinated approach to provide access to justice. ASK’s legal support system set up in Dhaka is replicated now in villages by ASK’s partner NGOs such as BRAC. Disadvantaged women, workers, working children and economically well off yet vulnerable women have gained access to both the formal (court) and informal (shalish) systems of justice.73
4.2.3 Legal Aid Programme by Madaripur Legal Aid Association (MLAA)
MLAA was established on March, 1978.74<href=”#_ftn23″ name=”_ftnref23″ title=””> It has been working in the field of providing free legal aid to the poor and marginalized people since 1978. MLAA has a mediation and legal aid committee in three districts of Madaripur, Shariatpur, Gopalgonh. Initially the organisation provided legal assistance to those who are incapable to access the state legal machinery due to the lack of awareness regarding their rights coupled with poverty, which acts as hindrance to surface their grievance.75
Vision and Mission
The vision of MLAA is to create a just and fair Cambodian society, where everyone enjoys equal rights before the law. The Mission of the MLAA is to establish a society where people, particularly poor and destitute women and their children can live in justice and peace.76
Goals and Strategies
One of the strategies of MLAA is to ensure that poor people have access to justice by providing legal aid in or outside court by qualified LAC lawyers. Besides this, to promote respect of laws and human rights in Cambodia by building awareness in communities about their legal rights and laws and advocating for-poor policies, and legal frameworks, empowering poor people to advocate for their rights.77
To make local justice systems more effective, improve disadvantage people’s access to the formal judicial system, institutionalize and modernize the traditional mediation system, contribute to the establishment of the rule of law and human rights culture in Bangladesh by raising awareness, advocate for law reform and reform of the legal system to make it more systematic, dynamic and acceptable are the objectives of MLLA.
Improving quality of life for disadvantaged people through establishing their human and legal rights, as well as women’s rights, to encourage peaceful coexistence. Is the goal of MLLA.78<href=”#_ftn24″ name=”_ftnref24″ title=””>
Creating UP Judicial system to activate Village Court & Arbitration Council, giving free legal assistance for the disadvantaged to access the formal judicial system, providing advocacy and lobbying for policy reform, making dissemination of Madaripur Model of Mediation to institutionalize ADR, institutional capacity building (staff development, monitoring & evaluation, human resource development) of MLAA are the current activities of MLLA.79
4.3 Some Cases filed by NGOs in Defense of Legal and Human Rights
NGO’s success through movement may be visualised from the landmark cases. Here some cases settled by different NGOs have been discussed below:
4.3.1 Jahanara v. Managing Director
On 24/4/06 Jahanara came to BLAST alleging that she had been working as cleaner in Oriental Group from 9 months ago sincerely and honestly. She was a permanent worker. Her last working day was 14/04/06. On 14/04/06, the Managing Director (the opposite party), terminated her employment verbally. The applicant also claimed that when she had asked for her back wages, the authority denied to pay. Then the complainant approached BLAST for legal help to realize her back wages and other legal benefits.
On 7/05/06 BLAST sent first letter to the opposite party for the payment of the complainant’s dues through mediation.
On 28/05/06 BLAST sent second letter to the opposite party for the payment of the complainant’s dues through mediation.
The learned court served summons to the opposite party. The opposite party then communicated with BLAST. The opposite party agreed to pay the claimant’s arrear wages. On 16/01/07 the complainant received TK. 3,000/- (Three thousand only) and withdrew the case on oath before the learned court. On receiving the back wages and the legal benefits the complainant being satisfied expressed his gratitude to BLAST.80<href=”#_ftn25″ name=”_ftnref25″ title=””>
4.3.2 Salma Begum v. Managing Director
The Complainant Salma Begum being appointed as a permanent Senior Operator had been working in Jeacon Garments Ltd. from 06/05/2001 until 14/12/06 satisfactorily. She submitted an application seeking her maternity leave and benefits which she is entitled to according to labor law, subject to a medical certificate to be provided to the opposite party management within 8 months of her pregnancy period. On this basis the authority dismissed her form service with false allegations and this is unlawful. Thereafter the applicant contacted the opposite party management demanding her back wages and maternity benefits but the authority did not pay any heed to that. Then finding no alternative the complainant came to BLAST and sought legal help.
On 13.02.2007 BLAST sent a letter to the opposite party to resolve the complaint through mediation.
The opposite party replied to the letter in writing on 18/05/06.
The representative of the opposite party Md. Habib Hasan (admin) contacted BLAST by telephone. After telephone discussions and mediation the representative of the opposite party agreed to pay the complainant arrears and maternity benefits amounting to Tk. 22,000/-(Twenty two Thousand only).
Thereafter final mediation sittings were held on 12/03/2007 in the presence of the opposite party’s representative Md. Habib Hasan (admin) and BLAST Staff Lawyer Md. Hafijur Rahman and Sheikh Azizur Rahman. In this final sitting the opposite party paid BLAST TK. 22000.00 as the complainant’s benefits.
On receiving Tk. 22,000.00 from the opposite party, as the complainant was unwell, BLAST staff had gone to the complainant’s residence and given her the said amount. On receiving the back wages and the legal benefit the complainant being satisfied expressed her gratitude to BLAST.
4.3.3 Arifa Khatun v. Rashid Motta & others
On 3 July 2008, a girl student of class VIII of Gaibandha Sadar was about to be abducted by a man and his group but they were seen by the thana CBO secretary. He stopped them and mobilized people on the street to help him. They were taken to the police station, but the police did not help because of pressure from a former MP. In the meantime other villagers came to support the girl, and they file a case. Without in forming the CBO Secretary, the victim’s father and the man’s family members settled the matter in the thana and withdrew the case. The father promised that his sons would not do this again; the MP also obtained a written statement from his son promising not to harass a girl again.
It was difficult for the CBO to take action if the family did not want to continue the case. However, the CBO kept in touch with the student and found that the girl was not being harassed.81<href=”#_ftn26″ name=”_ftnref26″ title=””>
4.3.4 Selina Begum v. Md. Abdul Malek
On 15 July 2008 a shalish was arranged in the office of the thana MSP in Kushtia by the thana Committee to mediate in the complaint filed by a woman who hased discovered after her marriage that her husband was already married. She continued living with him, but later, when he stopped giving her maintenance and became violent, she filed a complaint with the union MSP member. Upon receiving the complaint the thana MSP called both parties, where she clearly stated that she did not want to stay with her husband. It was decided that he would pay her taka 20,000 as dower, and a divorcee would take place in accordance with Muslim Family Law Ordinance, 1961.
The MSP was able to obtain her dower money, which is rare in case of a village divorce, and the woman’s decision to opt out of the marriage was respected.
4.3.5 Amena ‘s Long Struggle for Dower and Maintenance
The following case illustrates the problems faced in pursuing litigation due to length of the trial and the change of address by the defendant to escape the trial. Amena’s marriage to Faruque was registered on 18 May 1991 in Dhaka. According to Muslim law, Taka 90,001.0 was fixed as dower money. They had a six year old daughter. After a few years of marriage, Faruque demanded dowry from Amena, and because her family was unable to meet his demands Faruque beat Amena and foreced her to leave his house.
Amena went back to stay with her parents. She first came to Ain o Salish Kendra (ASK) in November 1997 for legal assistance to recover dower and maintenance. ASK’s lawyer received the matter and after ASK failed to resolve the dispute through medication and negotiation, the Litigation Unit filed a case on 13 January 1998 in the Sixty Assistant Judge Court, Dhaka applying for dower and maintenance on behalf of Amena. In the mean time, Faruque sent a divorce letter to Amena which came as a shock to her.
The Court passed a judgment on 31 March 1999 instructing Faruque to pay dower and maintenance. Faruque failed an Appeal against the judgment. After hearing both parties the Court dismissed the appeal. Then the plaintiff filed a decree for execution of the judgment against the defendant. After ten years (13 January, 1998-16 November, 2008) Amena received Taka 201,601.0 as her dower money, past maintenance and child maintenance.82<href=”#_ftn27″ name=”_ftnref27″ title=””>
PROBLEMS IN THE EXISTING LEGAL AID SYSTEM
5.1 Flaws in the Legal Aid Law
Though the Government has good intention to provide legal aid throughout the whole country, yet there are some defects in the Legal Aid Law for which the implementation of the legal aid scheme cannot be properly possible.
These defects have been discussed as follows:
As per Section 16 of the Legal Aid Act, 2000, all applications for getting legal aid must be submitted to the National Board of Legal Aid or in appropriate cases to the District Committee. The procedure for applying for legal aid by the poor is not practical.83<href=”#_ftn28″ name=”_ftnref28″ title=””>The present law compels indigent litigants to travel to the District to get legal aid which is very disadvantageous for them.84
As per Rule 3(2) of the Legal Aid Rules, 2001, for legal aid for any matter in the Supreme Court, application is to be made to the Chairman of the National Legal Aid Organisation, i.e. the Law Minister. Making an application to the Law Minister seems to be a big hurdle for an indigent client. It has not been clarified in the Rules how and to whom an indigent client will approach for legal aid in the Supreme Court matter. Few lawyers or judges in the Supreme Court know anything about this system.
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.
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 meagre 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 said committee determines a litigant to be an indigent litigant or not.85<href=”#_ftn29″ name=”_ftnref29″ title=””>
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 witness if necessary, and other miscellaneous expenses like photocopying or releasing documents etc, It is impossible for a client whose monthly income is below taka 250 to afford these if he does not get any help from the Government as part of legal aid.
The duties and responsibilities of the Co-ordinators are not defined and his responsibility to report to the District Judge is not made mandatory in the Legal Aid Act, 2000.
There is no provision for any advance payment to legal aid lawyers. In case of filing new cases under the legal aid scheme, appointed lawyers very often seek prior allocation of fund for payment of court fees and meeting incidental expenses. This is an outstanding factor, which requires proper decision. Before filing a suit, the indigent client has to collect many documents which has a cost-consideration involved and which is beyond his means.
Condition of five years practice for the empanelment of an advocate as provided in the Act86 is debarring many young lawyers having attitude to help indigent people and thereby to serve the community. Also is the fact that lawyers with five years standing keep themselves busy with their own briefs.
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.
5.2 Present Structural Defects
There are some obstacles derived from the defects in the Legal Aid Law to implement the legal aid scheme in practice. By focusing on these obstacles, the real situation in providing legal aid in Bangladesh practically could be realized and then it will be easy to find out the solutions so as to overcome the situation.
There is no media propaganda about the legal aid and so people are unaware of the government initiative.87<href=”#_ftn30″ name=”_ftnref30″ title=””> The lack of awareness about the legal aid scheme and its purposes among the indigent litigants and also among the lawyers and judges in general, is the main obstacle to achieve the objectives of the scheme of legal aid.88
The distance between the Bench and Bar makes it complicated to work together. The nature of the work of District Judge isolates him from the Bar and other officials. Therefore, calling a meeting becomes embarrassing for him as he may be exposed to uneasy situation.
The District Judge is disinterested in legal aid programme also because it is an extra job on his shoulder without remuneration. Being in the position of the District Judge, it is not possible for him to monitor the lawyers and see whether they are discharging their duties properly. Therefore, whether a lawyer is taking money from the client (wh