GOVERNMENT LEGAL AID VERSUS NGO LEGAL AID

Realizing the importance of the 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 there societies. Therefore, understanding the government machinery and NGO‘s efforts in providing legal aid is of importance.[1]

In 37 year 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 imitative to provide legal aid indigent litigants.[2]

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 of cases, the government imitative cannot be ignored.[3] The Legal Aid Act (Act of 2000) comprehensively provides for the declaration of the activities in National and District level. At national level there is 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.[4]

The performance of the national legal aid organization at glance

According to statistics published in December 2003 by the National Legal Aid Organization, 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 penal lawyers  in total have been appointed, total fund granted for legal aid is taka 1,87,23012 out of which Tk.40,88723 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 though the District and Session judge of each district, the amount varying in proportion to be 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.[5]

During 2005 to 2006, legal aid has been given in total of 11808 cases, in 61 districts total fund granted for aid is Tk. 54,60,000.During 2007 to 2008, 3267 penal 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.[6]

During 2008-09 the financial allocation was downsized to 0.80 million Taka which subsequently has been increased again to 18.37 million Taka in 2009-10. However, although squeezed, the financial disbursements during 2010-11 and 2011-12 financial years have been remained steady amounting to 15 million taka.[7]

Legal Aid through NGOs

The Legal Aid support of the NGOs is worth mentioning. In Bangladesh some leading NGOs have pointed 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 (MLAA). Bangladesh Environmental Lawyers Association, Bangladesh Shishu Adhikar Forum (BSAF), etc.

Legal Aid by BLAST

The Bangladesh Legal Aid Service and Trust has national networks of Lawyers and currently provides legal aid and mediation services in 18 district and 5 legal aid clinic.[8]

i. Vision and Mission

BLAST envisions a society based on the rule of law in which every individual, particularly the poor and the disadvantaged woman and children excess to justice and their human rights are respected and protected.[9]

ii. 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 people. BLAST has developed its expertise in protecting the right of people in areas like labour rights, violence against women, trafficking, child rights, legal counseling and training for community awareness and Salish. [10]

The BLAST model for providing legal aid has been very affective it combines use for paid staff and private lawyers who are basically providing volunteer services for a modest stipend who is does not cover a great  deal more than their out of pocket costs. In choosing the approach BLAST has lever aged services for poor people which have a market value that far exceeds their cost.[11]

iii. Activities and Program 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 officers with a view to involving the local Journalists with the activities if BLAST, identifying the problem of the people at the grass root level, conveying the activities of BLAST to the people at grass roots level though newspapers making them aware of their rights though print and electronic media.

The national and local level journalist of both print and electronic media to part in the meetings.

 Legal Aid through Ain o Salish Kendra (ASK)

Ain o Salish Kendra (ASK), (Literally, Law and Mediation Center) a legal aid and human rights organization, 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, and developments workers, it began life in a small garage, loaned by a supporter.[12]

a. Goal 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 UNESCOSOC and continues its commitment to prompting human rights with in a democratic framework.

ASK’s strategies are generating human rights awareness and activating responses against human rights violation’s (HRV’s); Promoting community activism for gender equity and social justice; Ensuring excess to justice though 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 and effective institutional system.

b. Programmers and Activities of ASK

i. Human Rights Awarsenes

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 awareness rising program.

ii. Community Activation for Gender a justicend Social

The Gender and Social Justice Programme has been instrumental in developing and sustaining Community Based Organization (CBOs) that promote and protect human right. 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 Prorishod (MAP), a federation of lawyers in the district, who offer legal advice and voluntary service to the disadvantaged[13].

iii. Access to justice

Access to justice though legal support and other related service beyond the ambit of legal service has been an overarching goal of ASK’s. Four units (Mediation and Rapid Response, Litigation, Outreach and Child Right Unit) have adopted anointer connected 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 systems of justice.

iv. Litigation

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 apple etc. When mediation Unit to the Litigation Unit for processing in the court. Panel lawyers mainly conducted cases in the High Court division and Labor Court in Dhaka, while staff lawyers conducted district court cases and outside Dhaka and in some cases in the Labour Court.[14]

v. Legal Aid Clinics

In collaboration with local partner Non-Government Organization, the Unit set up three legal aid clinics in 2008, where woman’s access to justice was enhanced through legal and counseling advice to woman in the above three district. The Partner Non-Government Organization staff ran the clinics under regular supervision and monitoring by ASK staff lawyers. This included examining medication files, reports and registers by necessary suggestion.[15]

vi. Child Rights

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 rights for the child and about negative consequences of child labor.

vii. 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’s. Four units (Mediation and Rapid Response, litigation, Outreach and Child Right 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 village by ASK’s partner NGOs such as BRAC. Disadvantaged woman, workers, working children and economically well off yet vulnerable women have gained access to both the formal (court) and informally (shalish) systems of justice.[16]

Legal Aid Programme by Madaripur Legal Aid Association (MLAA)

MLAA was established on March, 1978. 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. Gopalgong. Initially the organization provided legal assistance to those who are incapable to access the start legal machinery due to the lack of awareness regarding their right coupled with poverty, which acts as hindrance to surface their grievance.[17]

i. 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.[18]

ii. 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 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 foe-poor policies, and legal frameworks, empowering poor people to advocate for their rights.[19]

iii. Objectives

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 established 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 disadvantage people through establishing their human and legal rights, as well as women’s rights to encourage peaceful coexistence.

iv. Current Activities

Creating UP judicial system to activate village court and arbitration council, giving free legal assistance for the disadvantaged to access the formal judicial system, providing advocacy and lobbying for policy, making dissemination of Madaripur Model of Mediation to institutionalize  ADR, institutional capacity building (staff development, monitoring and evaluation, human resources development) of MLAA are the current activities of MLLA.[20]

Some Cases filed by NGO’s in Defense of Legal and Human Rights

NGO’s success thought movement may be visualized from the landmark cases. Here some cases settled by different NGO’s have been discussed below:

 Amena v. Shafiqul

Amena, a 40-year old divorcee, and her elderly mother Mominunnesa Beua, had been living in Shafiqul’s house in Rajshahi for about 13 years. Amena sold bangles and ribbons in villages to earn a livelihood. Amena developed a sexual relationship with Shafiqul after he promised to marry her. When Amena became pregnant, Shafiqul denied that he had ever had a relationship with her, and threw her out of the house. Amena gave birth to a daughter, Asia. When Asia was about 12 years old, Amena came to BLAST’s Rajshahi unit office and sought advice and assistance in establishing that Shafiqul was Asia’s father. BLAST’s Rajshahi unit office sent a letter to Shafiqul asking him to attend a mediation session. In October 2010, with the assistance of a local freedom fighter, Mr. Golam Mortuza, BLAST arranged a mediation session at its Rajshahi unit office. After a fruitful discussion, Shafiqul finally admitted that Amena’s allegations were true. He agreed to provide maintenance to Asia, and also swore an affidavit to formally declare that Asia is his daughter.[21]

Kabir v. Director

In October 2010, Kabir came to BLAST’s head office seeking legal assistance to recover the benefits owed to him following his resignation as a senior operator of a factory. He had not received his arrears of wages or benefits following his resignation in April 2010, due to a family crisis, following 13 years of service. Kabir sought BLAST’s assistance to obtain his back wages, along with certain legal entitlements guaranteed by the Bangladesh Labour Act, 2006. BLAST sent letters to the factory authorities seeking mediation of the dispute. The factory authorities replied positively, and agreed to settle the dispute through mediation. They then asked BLAST to arrange for Kabir to contact the factory, and when Kabir did so, he received Tk. 71,744.00. In November 2010, Kabir returned to BLAST’s head office to report that he had received the full amount, and was very satisfied with the outcome.[22]

 Arifa Khatun v. Rashid Motta and Others

On 3 July 2008, a girl student of class 8 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 meaning other village came to support the girl, and they file a case. Without in forming the CBO Secretary, the victim’s father and the mans 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 cases; however, the CBO kept in touch with the student and found that the girl was not being harassed.[23]

 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 women who has discovered after her marriage that her husband was already married. She continued living with him, but later, when he stopped giving her maintenance and become 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 divorce would take place in accordance with Muslim family law ordinance, 1961.

The MSP was able to obtain her dower money, which is in case of a village divorce, and the woman’s decision to opt out of the marriage was respected.

 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 was fixed as dower money. They had a six year old daughter. After a few years of marriage, Faruque demanded dower from Aemana, and because her family was unable to meet his demands Faruque beat Aemena and forced 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 though medication and negotiation, the Litigation Unit filed a case on 13 January 1998 in the Sixty Assistant Judge Courts, Dhaka applying for dower and maintenance on behalf of Amena. In the mean time, Faruque sent a divorce latter 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 Apple against the judgment. After hearing both party the court dismissed the apple. Then the plaintiff filed a decree for execution of the judgment against the defendant. After ten years (16 November, 2008) Amena received taka 201,601 as her dower money, post maintenance and child maintenance.[24]