Access To Justice And Legal Aid
According to a report titled Understanding the Informal Justice System: Opportunities and Possibilities for Legal Pluralism in Pakistan (2015), 98.2 per cent of respondents in a survey opined that the poor and lower classes do not have access to justice in the formal justice system. In the same survey, 42.8% felt that women and 25.2% that landless peasants and agricultural labourers similarly lack access. One of the reasons for limited access to the formal justice system, as perceived by half the respondents, is the high legal fees charged by lawyers.
Access to justice is a fundamental right. The right to legal aid is a basic one under Article 4 (due process) and under Article 10-A (right to fair trial) of the Constitution of Pakistan. An adequate legal aid system is one of the prerequisites for access to justice. This acquires more significance in the context of developing countries due to higher levels of poverty, socioeconomic inequalities and serious accessibility and affordability issues.
The World Justice Project Report 2016 on the Rule of Law Index ranked Pakistan’s criminal justice system at 81 out of 113 countries, above Bangladesh (97) but below India (71) and clearly way below most of the 113 countries surveyed. In the civil justice system, the same report ranked Pakistan even worse (106/113), below Bangladesh (103), Sri Lanka (96) and India (93). On ‘accessibility and affordability’, Pakistan scores slightly better than India; however, it lags behind Sri Lanka and Bangladesh.
According to an official report launched by the Ministry of Planning, Development & Reform in June, about 40% Pakistanis (around 60 million) live in multidimensional poverty. Legal aid thus assumes enormous importance in the context of access to justice where deviance and discrimination are deeply rooted in the socio-political milieu. Ironically, after almost 70 years of its existence, the legal aid system in Pakistan is still struggling to take root.
A comparative analysis of the legal aid systems of Bangladesh, India and Sri Lanka shows that these countries, although struggling like Pakistan in many ways in developing effective legal aid systems, have at least established organised aid structures.
In Bangladesh, the Supreme Court Legal Aid Office was established in 2015 to provide legal aid in both civil and criminal cases. The structure of legal aid in Bangladesh is organised under the watch of the Supreme Court at four levels:
a) Supreme Court legal aid,
b) district legal aid committees,
c) upazila (sub-division) legal aid committees and
d) union council legal aid committees.
The National Legal Aid Services Authorities Act 1987 of India provides for an organised structure of legal aid and services. The Chief Justice of the Supreme Court of India is the patron-in-chief of NALSA and a retired judge of the Supreme Court works as its executive director. Likewise, there are state, district and sub-divisional legal aid service authorities on a similar pattern.
In Sri Lanka, the Legal Aid Act 1978 created the Legal Aid Commission consisting of nine members, three nominated by the Justice Ministry and six by the Bar Council of Sri Lanka. The LAC provides legal aid services through regional and district committees and clinics, and also works to promote legal awareness, training and reforms.
Existing legal aid structures in Pakistan lack ownership at the relevant levels and performance management mechanisms. For example, district legal empowerment committees (DLECs) constituted by the Law and Justice Commission of Pakistan (LJCP) in 2011, in a well-meaning attempt to provide legal aid to deserving litigants at the district level, lack the following:
a) ownership at the most relevant level — the high courts and the district judiciary,
b) effective oversight, and
c) performance management mechanisms.
Consequently, among other things, the rate of disbursement of legal aid under the DLECs is quite disappointing; 59% of the funds in Punjab, 91% in Sindh, 69% in Khyber Pakhtunkhwa and 95% in Balochistan allocated to the respective DLECs between 2012 and 2016 unfortunately remained unspent.
The Pakistan Bar Council, under the Free Legal Aid Rules 1999 also has the mandate to provide legal aid and create awareness about legal rights. Under these rules, the Pakistan Bar Council manages central, provincial and district free legal aid committees. However, these committees lack the capacity and support to perform the roles assigned to them.
The concerned authorities need to realise their role to address the chronic neglect of this fundamental right of the citizens. The Ministry of Law, Justice & Human Rights has to take the lead to engage not only the provincial law departments and the Pakistan Bar Council but also the superior judiciary and civil society to reform the legal aid system.
As a first step, there is a need for a national legal aid framework/authority with clear structures from the centre and the province down to the level of each sub-division and ultimately to each union council.
The DLEC rules need to be re-examined to improve engagement, collaboration and performance management of the DLECs in coordination with the LJCP and the respective High Courts. This will help in building ownership of the DLECs especially at the provincial level with the High Courts and down to the district courts.
The Pakistan Bar Council Free Legal Aid Rules 1999 also need to be assessed with a view to improving their structure, capacity and support through the provision of a dedicated structure for effective arrangements for legal aid, training, continuing legal education, sustainable funding streams and effective oversight.
Last but not least, NGOs must also mark legal aid as a priority area to complement public-sector initiatives.
An efficient legal aid system can significantly help improve access of vulnerable sections to justice and reduce legal exclusion. It is crucial to build the trust of millions of poor people with the justice sector and importantly, with the political system of the country.
This article was previously published in DAWN and it is being republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
