Tuesday, March 08, 2016

Instrumentality of Legal Aid

Instrumentality of legal aid. The third paragraph of Preamble to the Constitution of the People’s Republic of Bangladesh, 1972 states that-it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation, a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens. Even it is one of principle of natural justice that “Nobody should be condemned unheard”. Again, article 27 of the Bangladesh Constitution, 1972 provides that all citizens are equal before law and are entitled to have equal protection of law. But in reality, with the experience of its 40 years journey, due to financial constraints and social inequality not all are equally privileged to get the benefits of law. Thus, the jurisprudence concepts of ‘equality before law’, ‘equal protection of law’, ‘rule of law’ has remain in the words of the constitution and the justice goes far away from the poor people.  Access to justice for the poor people is not a charity rather it’s a human rights as well as fundamental rights.
Crucially, from a human rights perspective, poverty is not only associated with denial of rights – but also the denial of the right to rights, as promoted and protected through an effective legal system. Legal systems around the world discriminate against people who cannot afford legal representation, are illiterate and lack the power to influence legislative processes.
Despite the all constitutional promise regarding the equal protection of law, the government of Bangladesh has taken its first step on the access to justice for the poor people after the 30 years of its independent. In 2001, the parliament has enacted Legal Aid Service Act to facilitate the poor people to get the legal remedy from the judiciary. It appears that the intention of the legislators was to establish legal aid as a charity; instead of a civil right.
In the conventional contemporary account of human rights, the source of a human right is neither the state nor any particular system, it is the person. This is the key to its universality. A human right is a right that every person has and it is necessary to live with dignity. If the people do not enjoy their right, it does not necessarily mean that they are without rights. Actually they are deprived of their enjoyment of them. Here the first step to justice is the recognition of the principle of the human right to legal aid, and how that right can in fact be enjoyed is a necessary but further issue.
The optimistic list of fundamental rights is, however, neither closed nor immutable. It is always the subject of exposition, debate, refinement and the pursuit of better understanding. Rights are interpreted, particularized, and augmented. Identifying a new right is not remarkable. Few would deny, for example, a human right to a clean and healthy environment, although no such right is clearly set out in the Universal Declaration or any related treaty. The claim for such a human right is argued for from first principles, supported by interpretation of existing rights such as the right to health. It is possible, therefore, to explore the possibility of a new human right – not its creation but its realization, a right that might exist but has so far not been identified and articulated.
There is cost and complexity in giving effect to human rights, and there are inevitable limitations on the extent to which human rights can be realized in a state. But the prospect of difficulties in implementing a human right cannot undermine the idea of the right itself. A human right of access to law both obliges and enables a state to consider a wide range of measures that will promote access to law in the particular circumstances of that state, and is a universal standard by which the adequacy of any legal aid system can be judged. The Human Rights regimes confer a right to a fair trial. A mere access to the courts and tribunals do not enable individuals to assert the right to fair trail, it requires more.
According to Article 2 (1) of ICCPR, States ratifying the ICCPR undertake to respect and ensure to all individuals within the civil and political rights it recognizes without distinction of any kind. So governments are ultimately responsible for ensuring the effective of the right to a fair trial. In general the obligation to ensure right to fair trail does not requires governments to established legal aid schemes. Nevertheless if an individual litigant or accused requires legal representation in order to obtain a fair trial states cannot avoid the obligation to provide legal aid. Even this obligation is enforceable irrespective of the particular statutory arrangement that operates for legal aid. Although states do not have unlimited resources to fund legal aid system, it may impose on eligibility for aid. So the Human Rights approach to the access to justice is preferred because it is a substantive account which helps to explain the role of legal aid is in the society and the obligation that this places on the government. A human right is said to be fundamentally important, only if it implies an obligation on the part of other people, one in which other people are obliged to use their power and resources to ‘make things happen’.  This is the status that ought to be given to legal aid.

The writer of this article is:
Shakhawat Hossain Shamim
Advocate, Supreme Court of Bangladesh.
Assistant Professor, Department of Law & Justice
Bangladesh University of Business & Technology (BUBT).
Chairman of the Biswas Foundation.

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