“Whether Right to legal aid is a Human Right, Discuss”

Introduction :

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law , general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

Universal and inalienable

The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations.

Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.

Interdependent and indivisible

All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education , or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.

Equal and non-discriminatory

Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Both Rights and Obligations

 Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.

Within five years of the end of WWII two major events took place affecting the future ofstate responses to the needs of the poor for access to law. In 1948 the UN GeneralAssembly adopted the Universal Declaration of Human Rights (UDHR), in which Article7 proclaimed a universal right to equality before the law and its protection, withoutdiscrimination, a right reaffirmed and elaborated almost 30 years later in the InternationalCovenant on Civil and Political Rights (ICCPR), Art. 26. The second event was theestablishment in the UK in 1949 of a national Judi care legal aid scheme, which heraldedan unprecedented emphasis on legal aid around the world, and the establishment ofnew legal aid schemes in a number of other welfare capitalist societies.

Little attention has been given to the connections between legal aid and human rights.This began to change in 2005 when Roger Smith presented a paper at the International Legal Aid Group Conference on legal aid and human rights in Europe, particularly ondevelopments in the accession states of the European Union (EU). John Johnson followed in 2006 with a paper on human rights in the development of legal aid in Europe,with special attention to the work of the European Council Commission on the Efficiencyof Justice (ECCEJ), at the Legal Services Research Centre’s International ResearchConference.

This paper continues these conversations. Its coverage differs from the two earlierpapers in two respects. The paper provides a snapshot of links between legal aid andhuman rights in other parts of the world. The paper also considers some aspects of thewider relationship of legal aid and human rights, and the implications of the changingrelationships within law and human rights for the future of legal aid.The first part of the paper briefly recounts the origins and development of legal aid, andthe key features of legal aid schemes today. Next the paper reviews the fair hearing andrelated provisions in the UN, regional and national human rights regimes, the Justifiability of the hearing provisions and the principles of the right to a fair trial. Thefinal section of this part discusses the implications of the right to a fair trial for states andlegal aid scheme[1]

 The origins and development of legal aid

Legal aid is a product of first-phase modernization. The period from the mid-1700s tothe early 1900s saw the gradual transformation of Western society, and theestablishment of its modern states and national legal systems [2].Many factors contributed to the emergence of legal aid, including the growing politicalsignificance of modern social rights, new social dynamics such asdemocratization, industrialization and urbanization, migration, class conflict, electoralreform and mass education[3]  and theemergence of modern legal professions.Legal aid evolved slowly. Until the 1900s no countries funded legal representation incriminal matters[4]. Instead continuing to relying on anachronistic measures,such as, in Australia and Britain, the in formâpauperisprocedure, sometimeslegislatively enhanced, and dock briefs, and in Italy, to take an example from Europe, thepatroconiogratuito . Some jurisdictions provided token funding forthe defense of poor accused charged with capital offences, and, in several Australiancolonies, to indigenous people charged with indictable offences[5] . A similar approach was taken in civil litigation. Nor did states fund legal advice and otheroutside-litigation services, an exception being Germany, where until WW1 some localgovernments funded legal advice and counseling services (Brandenburg and Refiner 1981: 218, 230-31). In most societies providing outside-litigation services andResponding to the legal problems remained a charitable activity, a responsibility fulfilledby benevolent and social welfare organizations, churches, trade unions and legal Professions.

Developments in the first half of the 20th century were erratic, often continuing to “minglemodern reform with anachronisms of a former era” (Cappelletti 1975: 32). SeveralAustralian states, for instance, followed Britain (Pollock 1975: 12-14) in reforming thecivil in formâpauperisprocedures. 2 At the same time there was innovation andexpansion. In the USA county-based public defender programs established in the 1900sgrew slowly (Handler 1979: 321). Public defenders or public solicitors were alsoestablished in Australia, and in the early 1940s New South Wales pioneered acomprehensive publicly-funded scheme (CIP 1975). In the USA benevolent legal aidsocieties established in the late 19th century grew slowly (Handler 1979: 319). InSweden free process legislation and municipal legal aid plans provided some assistanceto the poor with legal problems (Boman 1979: 245). Probably the distinctive feature of this period was the growing interest of the legal professions in legal aid, at least in thecommon law societies.In the 30 years after WWII legal aid experienced what has been aptly described as itscharismatic phase (Blankenburg 1981: 224). Australia, Canada, Denmark, Finland,France, The Netherlands, Norway, Sweden, the UK and the USA reformed legal aid,establishing judiciary or mixed model schemes that for the first time offered the poor andlow-income citizens a comprehensive range of legal aid services (Zemans 1979;Brandenburg& Cooper 1982: 276-77; Abel 1985: 475). Moreover, an image of legal aidas the modern answer to the ancient problem of justice for the poor – a first wavetowards equal access to justice for all – was projected throughout the western world andits spheres of influence, particularly over the 1960s and 1970s (Cappelletti 1975: 5;Cappelletti and Garth 1981).Today legal aid schemes operate in over 80 countries (Soar 2002: x).3 Mostlyresponsibility for funding and administering legal aid rests with governments. Nationalgovernments in countries such as Britain, Ecuador, Finland, The Netherlands and SouthAfrica, and shared between national and state or provincial governments in federationssuch as the USA, Germany, Canada and Australia. In some countries local governmentis the principal legal aid provider, for example, Croatia and Hong Kong. In othercountries such as the USA, Germany and Brazil local government complements legalaid services provided by other levels of government. Legal aid services are delivered in Judi care, salaried and mixed models of delivery. Non-state organizations also contributeto the provision of legal aid. In the countries of Latin America and South America inparticular courts, law faculties and voluntary organizations also provide legal aid. Law

Faculties, non-profit organizations, other non- government organizations (NGOs) andcommunity legal services also form part of the legal aid responses in countries such asAustralia, South Africa and the USA, to varying and different degrees.


Legal aid schemes vary significantly both in scale and scope, and in the availability ofinside litigation and outside litigation services.4 Inside litigation services are the majoractivity, predominantly providing legal representation for poor and low-income people. Inmost countries legal aid is more readily available in criminal matters. Applicants for legalaid are generally required to demonstrate an inability to pay for the legal services thatare required. Legal aid schemes also generally require that an applicant’s defense orcase has merit, and reasonable prospects of success. Restrictions are often imposedon availability, in criminal matters, for example, legal aid is often unavailable in minorcases or pleas in mitigation, and, in civil matters, with respect to particular types of legalproblems, for example, defamation (ibid: xi-xii).[6]


justifiability of the hearing provisions

The rights to a hearing conferred by human rights regimes are not always justiciable.The ICCPR does not operate automatically as domestic law. Each ratifying stateundertakes to take the necessary steps, in accordance with its constitutional processesand the ICCPR, to give effect to the rights recognized in the ICCPR, where not alreadyprovided in legislative and other measures (Art. 2 (2). Unless the ICCPR is given effectin domestic law the remedies of individuals alleging violations of their rights to dueprocess are limited. The first Optional Protocol, Art. 1, to the ICCPR, recognizes thecompetence of the UN Human Rights Committee to hear complaints against a state fromindividuals within its jurisdiction who allege violations of ICCPR rights.18 Alternatively, anindividual may lodge a complaint with a national human rights agency, in Australia, forinstance, the Human Rights and Equal Opportunity Commission.19A similar situation exists obtains under two of the regional human rights regimes. TheAmerican Convention restricts standing before the Inter-American Court on HumanRights to member states and the Inter-American Commission on Human Rights (IACHR)(Arts. 52 & 61 (1)). Furthermore, the standing of individuals to complain of human rightsviolations to the IAHCR, which in any event only exercises reporting powers, is subjectto conditions. 20 The revised Arab Charter does not establish any judicial process todetermine alleged violations, and the powers of the Arab Human Rights Committee arelimited to reviewing triennial compliance reports from member states.

Complaints from individuals claiming that the hearing rights conferred by the EuropeanConvention have been violated are justiciable before the European Court of HumanRights (ECHR), provided that all domestic remedies have been exhausted (EuropeanConvention, Arts. 34 & 35 (1)). Legislation constituting the African Court of Human andPeoples Rights (ACHPR) established under the African Convention is yet to be promulgated, and its location agreed (PICT). The jurisdiction of the ACHPR extends beyond the African Convention, to all instruments, including all UN instruments that codify human rights ratified by defendant states (2004 Protocol to the African Convention 2004, Art. 3 (1); see also PICT). Individuals will have standing to bring cases alleging violations of the African Convention against African Union member states, provided that the subject member state has accepted the jurisdiction of the ACHPR to hear such cases.

Alleged violations of hearing rights conferred by national human rights regimes aregenerally justiciable in the courts. In both Canada and South Africa, for example, theSupreme Court has jurisdiction to hear such matters. In the states such as Namibia thathave legislated to give effect to the ICCPR breaches of its Art. 14 rights are also justiciable. In some states rights to due process by national law are not justiciable. In Indonesia, for example, complaints of violations may be made to the National Commission on Human Rights, but are not enforceable in the courts.21

The principles of the right to a fair trial

Legal representation is not always required to enable an individual to exercise the rightto a fair trial. In civil proceedings self-representation without professional assistance cansatisfy the fair trial requirements. 27 In the ECHR the test applied is proceedingunrepresented “would be effective”, in the sense of whether a party would be able topresent her or his “case properly and satisfactorily”. Each case will depend upon theparticular facts and circumstances.28 The ECHR in Airey, for instance, considered that itwas unrealistic to expect that in judicial separation proceedings the applicant “couldeffectively conduct her own case”, notwithstanding any assistance by the trial judge. 29Nor is legal representation always required in criminal proceedings. In less complicatedand less serious proceedings an accused may receive sufficient protection from theoperation of the institutional processes of the courts. In Mwilima, for instance, a majorityof the Supreme Court of Namibia considered that in a criminal proceeding involving onlyone or two defendants, and not raising complicated issues of law, the presumption ofinnocence, the role of the trial judge in ensuring procedural fairness and the prosecutors ‘duties to treat an accused fairly may be sufficient to ensure a fair trial.

 The implications for states and legal aid schemes

Governments are ultimately responsible for ensuring the effectiveness of the right to a

fair trial. States ratifying the ICCPR undertake to respect and ensure to all individualswithin jurisdiction the civil and political rights it recognizes without distinction of any kind(Art. 2 (1)). The regional human rights regimes exact similar undertakings, state partiesto the European Convention, for example, accept a responsibility to organize theirjudicial systems consonant with human rights (Johnsen 2006: 4). 42 Ultimateresponsibility also rests with governments under the national human rights regimes,directly, as in, for example, South Africa and Indonesia, or indirectly, as, for example, inVictoria where all public authorities have a statutory obligation to act in a way that is compatible with human rights. The obligation to ensure a fair trial does not generally require governments to establishlegal aid schemes. Under the European Convention, for example, member states maychoose different strategies to ensure that the Art. 6 due process rights are effective, forinstance, by simplifying law and procedure, citizens’ legal education, developing ADR orestablishing effective self-representation processes (ibid: 7-8). If an individual litigant oraccused requires legal representation in order to obtain a fair trial states cannot avoidthe obligation to provide legal aid. This obligation is enforceable irrespective of theparticular statutory arrangements that operate for legal aid. In Steel and Morris, forexample, the UK government argued unsuccessfully that as states do not have unlimitedresources to fund legal aid systems it was legitimate to impose restrictions on eligibility for legal aid in certain types of low priority matters, even if that meant denying applicantsrequiring legal aid for a fair trial under the European Convention assistance. 44

The point is very clearly illustrated in Mwilimain which the respondents were refusedlegal representation under a statutory legal aid scheme for lack of resources. TheMinistry of Justice declined to provide any additional funds. Art. 95 (h) of the NamibianConstitution required the state to adopt policies providing free legal aid, subject toavailable resources. The government argued that Art. 95 (h) limited its duty to providelegal aid to available resources, including legal aid in relation to the right to a fair trial. Amajority of the Supreme Court held that Art. 95 (h) served to recognize Namibia’s limitedresources in manpower and finances, which justified restricting the availability of legalaid under the statutory scheme. At the same time the state had an unqualified legal dutyto uphold constitutional fundamental rights and freedoms, including the right to a fairtrial. The government could not shirk this duty and the obligation to provide legalrepresentation in appropriate circumstances on the basis of lack of resources. 45

A decision in a particular case that a state is required to provide legal representation to alitigant or accused does not require legal aid to be provided in all similar cases. In Aireythe Irish Government argued that granting the applicant legal aid would require it toprovide free legal aid in all civil cases. An argument it sought to bolster on the basis thatas Ireland had reserved rights with respect to the European Convention, Art. 6 (3), itcould not be said to have implicitly agreed to provide unlimited civil legal aid. The ECHRrejected both arguments, holding that the European Convention did not guarantee “anyright to free legal aid as such”, and that its decision in favor of the applicant could notbe generalized: “the conclusion does not hold good for all cases concerning “civil rightsand obligations or for everyone involved therein”. 46

The implications of these state obligations for legal aid schemes vary. The main variable isjustifiability and enforceability. In jurisdictions in which human rights are notjusticiable or part of domestic law rights to a fair trial have only a moral sway. This means that legal aid schemes refusing qualifying applicants legal representation run therisk of public criticism, from the media, access to justice interest groups and humanrights defenders. Save that the Australian decision in Teohmay be relevant. 47 In Teohthe High Court held that ratification by Australia of international conventions such as theICCPR founded a legitimate expectation that administrative decision-makers would actin conformity. Notwithstanding that such conventions may not be part of Australian law,absent any contrary statutory or executive policy indications (Roberts 1995).



1.  Canadian Charter of Rights Decisions Digest, Section 7, para. [11] Referring inter alia to

Rowbothamet al. v. R. (1988), 41 C.C.C. (3d) 1 (Ont. C.A.).

2.  Citing Hadjinis v. Greece (2005) as a recent example of the ECHR applying this principle.

3.  Constitution of South Africa, s. 7 (2); Republic of Indonesia Legislation Number 39 of 1999

Concerning Human Rights, Art. 18 (4); Charter of Human Rights and Responsibilities Act 2006

(Vic), s. 1(2 (c).

4. See Regulations Relative to Defence of Destitute Persons Charged with Capital Crimes and of

Aboriginals charged with Indictable Offences, Victorian Government Gazette, 27 October 1915,

5. Information Sciences, University of Canberra, ACT 2601, Australia:

[email protected].

[1] Information Sciences, University of Canberra, ACT 2601, Australia:

[email protected].

[2] (Gleaner 1966: 153)

[3] (Abel 1985: 586-92; Cousins 1994: 116-125; 1999)

[4] (Abel 1985)

[5] (Phillips 1987: 32-3)

[6] See Regulations Relative to Defence of Destitute Persons Charged with Capital Crimes and of

Aboriginals charged with Indictable Offences, Victorian Government Gazette, 27 October 1915,