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, 42.8pc felt that women and 25.2pc 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. 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 as being 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 40pc 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.
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 is 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, 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 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; 59pc of the funds in Punjab, 91pc in Sindh, 69pc in Khyber Pakhtunkhwa, and 95pc 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 ministries 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, to ultimately 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.
Byline: Muhammad Ali Nekokara
December 12, 2016