VOL 18 NO 121 REGD NO DA 1589 | Dhaka, Monday August 9 2010

Legal Aid Act 2000 and justice delivery system

M S Siddiqui

The jurisprudential concepts of 'equality before law', 'equal protection of law' and 'rule of
law' are safeguards for the citizen irrespective of caste, creed, social and financial status.
Unfortunately, all citizens are not equally privileged to get the benefits of law. The
citizen of the any country of the world is not enjoying fair justice due to financial
constraints and social inequality.

The Constitution of Bangladesh has in clear terms recognised the basic fundamental
human rights. One of the basic fundamental rights is that all are equal before law and are
entitled toequal protection of law. The principles of Natural Justice is "Nobody should be
condemned unheard". On the other hand, article 27 of the Bangladesh Constitution
provides that all citizens are equal before law and are entitled to have equal protection of
law. In the case of Dr. Neelima Ibrahim Vs. State, 32 DLR (1980) 201, it was held that
the principle of audi alterem partem (hear the other party) unless expressly excluded by
law or by the nature of the objects of any particular law is to be implied to have been
proved in every statute.

In a democratic country it is a prerequisite that all citizens get economic and social
justice. The economically backward people need either free or state sponsored legal aid to
get justice and fair trial. This will uphold human rights and equality. The citizens require
empowerment through legal aid for fair trial and justice. This is a component of rule of
law for any society. It is not a charity but a civil right of the citizens. It ensures protection
of law.

The legal system in Bangladesh has the formal judicial and the informal Salish system.
The complexity of justice system is an obstacle for poor people to access to justice. There
is high legal cost like court fee, processing fee, solicitor's fee, and other incidental
expenses. A large number of people of the country don't have financial and other logistic
support to get the appropriate service from the judicial system. So, without giving any
legal assistance they can not ensure their rights.

There are a number of problems in Salish system like bias, corruption, and change in
social structure, which lead to declining status of authority and power of the shalishkars.
The traditional Saliskars were elderly and educated members of the society. Now-a-days,
someone having linked to political or administrative high ups, members of the law
enforcement agencies like Officer-in-charge of police stations is holding the position of
Shalishkar. The social, political and economic changes in society have weakened the
Salish system and deprive the poor of getting justice.

The Gram Sarkar system is also ineffective due to too much politicizing the formation of
Gram Sarker. This is considered as parallel of local government at village level. The
Gram Sarker Act needs some reform.

The Alternate Dispute Resolution (ADR) in civil litigations is still not yet mandatory.
There are some ADRs not widely practiced. The ADR is a matter of practice and
adoption and regulated by code of civil procedure. Some arbitration in some laws is not
satisfactory due to difficult and biased procedures. The arbitration in Artho Rin Adalat
Act is one of the examples.

The citizens are facing a number of quasi judicial and administrative authorities in their
professional and personal life. The common people face many odds due to ignorance of
law, rules, procedures and also of their rights. The new act -The Right to Information Act
2009 -- and the Information commission have failed to create an environment of free flow
of information.

The laws of most nations recognise the equal status of all people before the law, the
presumption of their innocence (until proven guilty) and their right to legal
representation.

There are some provisions in the constitutions of many countries to make provision for
legal representation at public expense 'where the interests of justice so require' or where
'substantial injustice' would result. The legal aid is part of justice system to address the
problem of certain class of member of the population.

All the countries be developed or developing have legal Aid service for the citizens who
are unable to take protection of legal system due to different limitations. They used to
face common types of cases like: denial or deprivation of government benefits, evictions,
domestic violence, immigration status, and discrimination.

There is a global movement of civil society by human rights groups for strengthening the
roles, capacities, and power of the disadvantaged and civil society. There are macro level
interventions such as Public Interest Litigation and Advocacy for legal reform. They are
also advocating with government for improved legal service delivery and enforcement of
existing laws. In micro level interventions legal services are ADR and legal aid.

Bangladesh passed the Legal Aid Act, 2000, declared Legal Aid Services Principles 2001
and issued Legal Aid giving Rules 2001 about ten years back to address the limitation of
citizens. Bangladesh has a government legal aid funds to provide services to the citizens.
According to section 2(a) of the Act, "Legal Aid" means to provide legal aid to people
who are unable to get the justice due to financial position or due to different socio
economic condition such as the payment of lawyer's fees, etc. Thus, section 2 (a) of the
Act broadly defines 'Legal Aid' so as to include counseling, payment of lawyers fees and
other incidental cost for expenses of litigation.

For the purposes of the Legal Aid Act by the term financially incapable or poor means
any person whose yearly average income is not more than taka 3000.00.

There are some minor loopholes of the Acts. For examples, the Act does not specify
criminal or civil cases for which legal aid can be provided. The process of consideration
of application for legal aid is having meeting of board or committee in national, district or
upazila levels headed by judges with members from administration and others. The Board
holds at least one meeting in every three months and the committee holds one meeting in
every month. The responsibility of boards and committees are voluntary services and
there is no accountability. There are no set criteria of selecting cases for legal aid. There
is no representation of really poor people in the board or committee and hardly the
present board/ committee can feel the gravity of situation.

The government has constituted a National Legal Aid Support Directorate under
chairmanship of Minister for Law and Parliamentary affairs as per the Legal aid act. A
senior District Judge is now the Director of the Directorate. Unfortunately, the
organogram is yet to get a nod from the government and they are working with some
support staffs paid by some donors. The directorate is unable to perform properly due to
lack of manpower and other logistics. Bangladesh has a long way to go to implement the
constitutional obligation to provide legal aid to the whole population forequal protection
of law and equality of law for everyone. Poor can get justice only after due reform in
judiciary and law.

The writer is a part-time teacher at the Leading University. He can be reached at e-mail:
shah@Banglachemical.com