Title: Legal Aid is not a charity but Human Rights - Explain

Written by:

Shankor Paul
Head-Human Rights Unit and Acting Head-Health Unit Concern Universal, Bangladesh

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Table of Contents

1. INTRODUCTION: ...................................................................................................................3 2. EXPLANATION ON INTERNATIONAL RECOGNITION OF LEGAL AID AS RIGHTS .... 4 2.1 Recognition in the International Human Rights Instruments ..................................5 2.2 Recognition in the Regional Human Rights Instruments: ...........................................5 2.3 Recognition in the Constitutions: ....................................................................................6 3. LEGAL AID AS PROVISION OF RIGHTS: PERSPECTIVES OF BANGLADESH ..7 4. CONCLUSION ........................................................................................................................7 5. REFERENCES: ......................................................................................................................8

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Legal Aid is not a charity but Human Rights - Explain

1. INTRODUCTION:
Before analyzing the context of Legal Aid is not a charity but Human Rights, we need to define the meaning of Legal Aid. Regarding this, the dictionary meaning of legal aid is refers to legal assistance. The New Encyclopedia Britannica defines legal aid as the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such helps. The International Commission of Jurists recognizes the legal aid as legal advice and representation in the Court for the threatened people to protect their life, liberty, property or reputation, who are unable to pay for it. In developing world, the provision of legal aid is introduced for making uniformity of law for the poor and the privileged sections of the population. Legal professionals use the phrase legal aid to mean any or more of the following three issues: a) Providing monetary aid; or b) Legal literature and counseling on any legal issue; or c) Defending a person (with a lawyer) in a Court of law In the wider sense, the term of legal aid often used by the legal professionals, individuals and legal organizations in line with the following definitions: o o o A system of providing free advice about the law and practical help with legal matters for people who are too poor to pay for it. Legal aid is money given by the government or another organization to people who cannot afford to pay for a lawyer. Financial assistance available to persons unable to meet the full cost of legal proceedings

Therefore, the legal aid is a means of legal support, social security; social arrangement and special assistance to the poorer, threatened and weaker members of the society to enable them enforce their legal rights through legal process. If legal aid means nothing more than legal representation in court, then to that extent there is a right to legal aid. It is a right that has been found to be implicit, in various legal systems and in human rights instruments. Legal aid in a broader sense as a fundamental human right, guaranteeing public access not only to legal institutions and legal representation, but as well to legal information, legal advice, and legal education and knowledge. The key to establishing a right to a broader idea of legal aid lies in understanding the role of the state from a human rights perspective rather than a welfarist one. Based on the conceptual framework of Legal Aid, we should have to justify it as charity or human rights. The jurisprudential concepts of 'equality before law', 'equal protection of law' and 'rule of law' are safeguards for the citizen of a democratic country. Unfortunately, all citizens are not equally privileged to get the benefits of law. The economically backward citizens of any country in the world are not enjoying fair justice due to financial constraints and social inequality. These segments of people needs either free or state sponsored legal aid to get justice and fair trial towards advancing human rights and equality. Without ensuring everyones equal opportunity and equal access to the law and the courts, it will not possible to ensure equality and equal protection under the law towards improving human rights in a country. Therefore, it cant be a charity but a civil right of the citizen that ensures protection of law.
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2. EXPLANATION ON INTERNATIONAL RECOGNITION OF LEGAL AID AS RIGHTS

Over seven centuries ago, the beginnings of equal justice under the law were marked by the inscription in the 40th paragraph of the Magna Carta: To no one will we sell, to no one will we deny or delay right or justice. After that, the international concern for human rights found expression, after the First World War in covenants of the League of Nations and further in the Universal Declaration of Human Rights, which followed specifically, incorporated the concept of legal aid. It recognizes the inherent dignity and equal rights of all human beings to promote respect for the rights and freedoms. In early 20th century, the provisions of legal aid were introduced by a numbers of welfare states in the world. It was then treated as a precondition of economic and social justice for their citizen. There was a realization that the backward section of people needs either free or state sponsored legal aid to get justice and fair trial. This assistance may contribute to uphold human rights and equality. It is a component of rule of law for any society. Justice Blackmun in Jackson v. Bishop case noticed that --"The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice." The just ground of legal aid finally came into realization of the majority states, non-government organizations and some individuals (lawyers) in the modern world that it may support in advancing rule of law and justice for all. The United Nations Conference on Human Rights in Iran (1968) declared that: o o o Every state will form a state authority to provide legal assistance for ensuring human rights and fundamental freedom of the people. The victim of rights violations will get economic, professional or legal assistance. The Government will also resolve individuals rights violation issue with the legal assistance and if necessary, will take all necessary steps to protect the individuals rights. If required, United Nations will arrange human advisory program or expert or technical support to the state efforts.

In recent years, the provisions of legal aid expanded into international spheres with formation of an International Advisory Service Association in 1970. This association declared that to make the legal aid program more effective, the national Government has to be developed some basic principles and eligible criteria. Based on that principles and eligibility criteria, the government will take necessary initiatives to start up the legal aid program for the backward section of the people in dealing with civil and criminal matters. As reference of the international recognition of legal aid, we have defined a numbers of international and regional human rights instruments that significantly justified its importance as supplementary to the advancement of human rights and protection. Because wider angel, the UN, regional and national human rights regimes do not proclaim Legal Aid as a civil or political right. Instead the human rights regimes confer on individuals certain rights to due process in civil disputes and criminal proceedings.
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2.1 RECOGNITION IN THE INTERNATIONAL HUMAN RIGHTS INSTRUMENTS The following UN instruments significantly recognized the importance of legal aid in advancing protection of individuals rights. 1). Universal Declaration of Human Rights (UDHR), 1948 Article-7 of the UDHR recognizes all are equal before the law and are entitled to equal protection of the law without any discrimination. Article-8 recognizes everyones right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. It refers to legal aid if rights are not respected Article-10 entitled everyone rights to a fair and public hearing by an independent and impartial tribunal. Article 11 (1) refers everyones (charged with a penal offence) rights to be considered innocent until proven guilty according to law in a public trial.

2). International covenant on Civil and Political Rights (ICCPR), 1966 Article-14 (1) recognizes that all persons are equal before the courts and tribunals in the hearing of civil actions and criminal charges. It is ratified by 120 of the 192 UN member states Article-14 (3) (d) provides provisions of legal assistance to defend himself in a criminal matters. 2.2 RECOGNITION IN THE REGIONAL HUMAN RIGHTS INSTRUMENTS The following regional instruments are also recognized the significance of legal aid for securing justice. The Fourteenth Amendment to the United States Constitution (13 June 1966) ensures Equal justice under law. Article-6 (3)(c) of the European Convention on Human Rights, 1950 recognizes that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. Article-7 (1) of the African Charter on Human and Peoples Rights (African Charter) ratified by 53 countries entitles everyone to have her or his cause heard, and to be tried within a reasonable time by an impartial court or tribunal. Article-13 (a) of the revised Arab Charter on Human Rights, 2004 proclaims that everyone is entitled to a fair trial that affords adequate guarantees before a competent, independent, impartial, lawfully constituted court to hear any criminal charge. Section-7 of the In Canadian Charter, 1982 entitles individuals to right to life, liberty and security of the person.

Therefore, it is clear that the international, regional instruments and national legislation of most of the countries in the world recognizes: i) the equal status of all people before the law; ii) the presumption of their innocence (until proven guilty); and iii) everyones right to legal representation in a court of law. And, all these guarantees become meaningless without providing any legal aid to the indigent or threatened persons.
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2.3 RECOGNITION IN THE CONSTITUTIONS 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. As reference: Article-39 (A) of Indian Constitution refers that --The state shall secure the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Articles 14 and 22(1) of Indian Constitution also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. In that sense Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. Example: Justice P.N. Bhagwati, who appointed as Chairman of State Legal Aid Committee, Gujarat made a unanimous decision that the State should regard it as an obligation to provide legal assistance to the poor and indigent. It stated that this obligation of the State was not merely, socio-economic or political but is also constitutional by reason of Articles 14 and 22(1} of Indian Constitution. Article-27 of Bangladesh Constitution refers that All citizens are equal before the law and entitled to equal protection of law. This constitutional provision is also reflecting the requirements of legal aid or assistance to make sure equal opportunity to all citizens and equal access to the law and the courts.

Therefore, the legal aid is a part of justice system to address the common problem of certain class of population to get access to justice. The common problem includes civil and criminal matters, which are often links with: o o o o o Denial or deprivation of government benefits, Evictions, Domestic violence, Immigration status, Discrimination.

As the issues of securing peoples lives, dignity and property internationally recognized as integral part of human rights, its protection under the law with the provisions of legal aid is also a part of rights. It is strongly justified by Justice V. R. Krishna with this following statement: Law and justice can no longer remain distant neighbors, if the increasing deficiencies and distortions of the legal system and the challenge to the credibility of the judicature are to be adequately met: The lawlessness of the old original law, judged by new dharma, can be corrected either by radical reform or by surrender to direct action. The choice is obvious and the hour is late. Let us begin.
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3. LEGAL AID AS PROVISION OF RIGHTS: PERSPECTIVES OF BANGLADESH

The constitution that adopted and enforced in 1972 is defined as the supreme law of Bangladesh. It is incorporated the most of the provisions of UDHR, 1948 under the PART-II and PART-III for streamlining (i) human rights and fundamental freedom, (ii) civil and political rights and (iii) economic, social and cultural rights for its citizens. Basically the PART- III (Article: 27-44) recognizes the fundamental rights and contains with the civil and political rights of the people that guaranteed and judicially enforceable. The fundamental rights provide a numbers of safeguards for the people in Bangladesh. As Reference: o Equality before the law (Article-27) o Right to protection of law (Article-31) o Protection of right to life and personal liberty (Article-32). o Safeguards as to arrest and detention (Article-33). o Protection in respect of trial and punishment (Article-35) In particular, the Article-35 of the Constitution reveals that --o Article-35(3) pointed out that every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. Article-35(4) states that no person accused of any offence shall be compelled to be a witness against himself.

Under the constitutional framework, the Supreme Court of Bangladesh can only exercise the jurisdictions (judicial review and judicial enforcement) of constitutional remedy for the citizens under the Article-26 and Article-102 whenever the people submit the writ petition. But the reality is that before 2000, there was no special effort of the state to ensure constitutional remedy and legal provisions through Legal Aid for the protection of people in Bangladesh. In absence of legal aid, the majority people who are improvised have had no access to justice to protect and defend their legal rights in the lawful causes. To address this problem, the legal aid services have been activated under the Legal Aid Act, 2000, and the act provides legal assistance to poor people to defend their cases in courts. Basically the Legal Aid provisions under this Act justified the fundamental and legal rights of the people, which is not a charity, but is a constitutional obligation of the state and rights of the citizens. This statement is also functionally guided by the principles of natural justice "Nobody should be condemned unheard". Reference case: Dr. Neelima Ibrahim vs. State, 32 DLR (1980) 201.

4. CONCLUSION
In spite of constitutional guarantee and legal obligations (as signatory of most of the UN Human Rights instruments), the majority people in the developing countries like Bangladesh are still facing difficulties to get equal opportunity and protection by the laws. The Legal Aid Act, 2000 is theoretically exist but practically it is unreachable to the majority of improvised people in Bangladesh, and without treating legal representation as part of rights of the people, the constitutional guarantees will be a fake promise to the vast majority of the people for securing their access to justice.
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5. REFERENCES:
1. Khan, Borhan Uddin. 1998. Fifty Years of the Universal Declaration of Human Rights, IDHR, Dhaka: Ministry of law, justice and parliamentary Affairs. 2. http://www.legalserviceindia.com/articles/laid.htm 3. http://indialawyers.wordpress.com/2009/01/24/justice-vr-krishna-iyer-legal-luminary/ 4. http://www.lawcentres.org.uk/uploads/Legal_Aid.pdf 5. Understanding Legal Aid: A Practical Guide to Public Funding by Vicky Ling and Simon Pugh. Published by the Law Society in 2003 6. http://www.lag.org.uk/files/93919/FileName/Legal.pdf 7. http://ukhumanrightsblog.com/2010/04/14/legal-aid-is-a-human-right-even-for-politicians/ 8. Constitution of Bangladesh. 9. Hand notes on Legal Aid, provided by Course teacher.

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