LEGAL AID SYSTEM IN PAKISTAN

Access to Justice and Fair Trial are two of the most fundamental and indispensible rights recognized by the Universal Declaration of Human Rights and enshrined in the Constitution of every developing and developed State. In a utalitarian society all citizens have a right to access justice and get a fair trial. 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 to justice.^[1]

Pakistan has a well structured formal judicial system yet the above mentioned statistics depict an alarming situation. Though Ideally and ideologically, money should play no role in accessing justice-foremost of the major reasons which makes justice inaccessible is high cost of litigation which comprises mainly of the cost of advocacy and court fee. Justice remains inaccessible to poor because they cannot afford to approach the courts. This financial barrier can be crossed by making legal aid available. Many individuals are reluctant to take their matters to court; they fear heavy costs and eventually ending up worser off than before. Every step taken towards the courts of law, needs to be  supported by financial resources. One needs money to pay lawyers, the court fees, paper work charges, process fee and for various other heads.

Legal aid is ‘Free or inexpensive advice, assistance, or representation concerning the law’.^[2] However, this definition proffered by the Black’s Law dictionary is ambiguous and for a viable definition a more pragmatic exposition is needed. In nuts and bolts, Legal aid is state-funded legal representation, advice and assistance to the poor, needy and unprivileged  who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Concept of Legal Aid dates back to the earliest Legal Aid movement of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain, the history of the organized efforts on the part of the State to provide legal services to the poor and needy dates back to 1944, when Lord Chancellor, Viscount Simon appointed the Rushcliffe Committee to enquire about the facilities existing in England and Wales for granting legal advice to the poor and to make recommendations which ensure that persons in need of legal advice are provided the same by the State.^[3]

“Justice is expensive. That is why there is so little of it, and it is reserved for those few with enough money and influence to afford it”. Pakistan is signatory to many international conventions which recognize the right to legal aid. Article 14 of International Convention on Civil and Political Rights (ICCPR) recognizes the right to legal aid as one of the basic rights and mandates it to be one of the minimum protections available to an accused facing a criminal charge. Similarly, the Constitution and other laws of Pakistan envisaged this economic barrier and made provisions to administer the legal assistance. Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure ‘inexpensive and expeditious justice’.  It is State’s responsibility to keep the doors of courts open for those who do not have enough resources.

Section 13(1-a) of the Legal Practitioners and Bar Council Act, 1973, deals with the provision of legal aid.  It was until 1999, that Free Legal Aid Scheme, 1988 was operational in field to provide legal assistance to needy ones. In 1999, Pakistan Bar Council amended the aforementioned rules and introduced a new set of rules Pakistan Bar Council Free Legal Aid Rules, 1999. Rule 2(2) enlists these “less- privileged” people to whom it can give legal assistance. It includes “Poor”, “destitute”, “orphan”, “widow”, “indigent” and “deserving” persons who are entitled to Zakat or one whose financial position and income resources are not sufficient to bear the expenses for engaging an Advocate to prosecute, defend and protect his legal rights in genuine litigation.^[4] The Rules gives a tri-layered committee structure, creating a main committee at Central level, one committee at principal seat of High Court of each province. To fulfill its promise of providing legal assistance at grass root level it forms the Pakistan Bar Council District Free Legal Aid Committee at each district. Persons desirous of legal aid will apply to respective committee by presenting prescribed application form to the committee (Schedule I). Pakistan Bar Council makes rules for allocation of fund to committees, utilization of funds by the committees, disposal of applications and implementation of rules in their true spirit. However, these rules remain limited in scope and restricted to only those categories which have been mentioned in the Rules including accidents, succession certificate, family matters, and public interest litigation etc.

Law and Justice Commission of Pakistan also felt the necessity of providing legal aid to deserving litigants and constructed the District Legal Empowerment Committees (DLECs) under Rules of 2011. For first time, Legal Aid was defined in any Rules though it was not a proper definition. DLECs assist deserving litigants who might otherwise be unable to obtain legal aid or assistance for protecting their genuine legal rights or interest, involved in litigation, on account of their limited financial resources. But only those legal practitioners having standing of 5years or more will be appointed by the DLEC for assistance and nominal fee will be paid by the DLEC. These Rules provide a detailed and transparent procedure of maintenance, disbursement and allocation of funds. Legal aid under DLEC Rules, 2011 is extended to Professional fee, Court fee, Copying charges, process fee and all other charges warranted by the Committee.^[5]

Destitute Legal Fund Rules, 1974 provides legal assistance for constitutional matters agitated before High Courts under Article 184(3) of the Constitution. It defines Destitute as a litigant who has no means to pay court fee or any other legal charges in connection with a writ petition to be filed in court.^[6] However, this assistance is approved if Inquiry Officer is satisfied that a prima facie case exists and subsequently financial aid is allocated from funds given by Provincial Government.

Order XXXIII of the Code of Civil Procedure, 1908 provides for waiver of Court Fee for a litigant who is found pauper. The Order enables persons who are too poor to pay the prescribed court fee to institute a suit without payment of court-fee. Order 44 of the Code deals with the pauper appeals.  However, a defendant cannot defend in forma pauperis.

Not only prosecuting the guilty ones and assisting indigent deserving litigants is the state’s duty but also providing legal assistance to innocent persons for exoneration and defending those needy persons who are falsely prosecuted and persecuted in criminal or civil litigation is the state’s obligation.

Accused under section 340 of the Code of Criminal Procedure has a statutory right to be defended by a counsel and under High Court Rules and Orders no trial of an accused for a capital sentence can proceed without providing legal assistance to him and in absence of arrangement of a defense counsel by accused, a defense counsel has to be appointed by Government at its expenses. The High Court has made provision for special assistance for those who are charged with offence punishable with capital sentence under its original jurisdiction, or for accused whose sentence could be enhanced to death penalty, or when death sentence is pending before High Court for confirmation, or when appeal against acquittal in murder case is being heard by High Court.^[7]

The Public Defender and Legal Aid Office Ordinance, 2009 was introduced to ensure equal protection of law to such indigent persons who being convicted or accused of an offence cannot afford to engage an advocate to represent them in any stage of proceedings or case in a court or investigation before police. It was the only free legal aid mechanism which provides legal assistance and representation in and out of the court. Hierarchy of the Offices established under the Ordinance is: Chief Public Defender, the Additional Chief Public Defenders, the District Public Defenders and the Public Defenders. This Ordinance had many distinctive features for example an affidavit by the applicant was considered to be a sufficient proof of his indigency.^[8] But this ordinance could not become law and lapsed. Prior to this Ordinance, Punjab enacted the Public Defender Service Act, 2007. This also met the bad fate, the prescribed legal aid mechanism was not set up and it was repealed in 2011.

Recently, Insaaf Network Pakistan conducted a research titled, “Voices of the Unheard: Legal Empowerment of the Poor in Pakistan”. It surveyed the poor households and the percentage that received free legal aid in each area was: 3% in Punjab, 25% in Sindh, 16% in Baluchistan, 5% in Khyber Pakhtunkhwa and 4% in Gilgit Baltistan.^[9] Despite State promised assistance and free legal aid mechanisms, only a fraction of the financially disadvantaged litigators avail themselves free legal aid. So Why does the available free legal aid go unused? Lack of awareness about free legal aid forums and their procedures lead these mechanisms to be non-prfoductive. Incompetency and apathy of legal practitioners present in the panel of these committees became the reason due to which litigators do not trust the legal aid forums.

No matter what terminology we use to describe this underprivileged segment of society, whether indigent, destitute, pauper, deserving or poor; they  are those have been deprived of the luxury of expensive justice. For them justice is like a candy-floss which a poor kid cannot taste. Both individually and collectively, endeavors  have been made by Federal and Provincial Governments, Bar, and Bench to make justice inexpensive and accessible  but these efforts will remain unprofitable unless the practitioners of this noble calling take the responsibility of informing deserving clients about the forums and procedures of legal aid instead of filling their deep pockets with their last coins. To make legal assistance efficacious respective laws and rules should be implemented in their true spirit. Practical committees need to be formed which does not haste only in getting allocation of funds but also to expedite work towards disbursing these funds to the deserving people. 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.^[10] A more transparent and accountable procedure is required to be developed for scrutiny of funds. Also a check needs to be put on the young, dedicated and ethical lawyers who are hired to take cases Pro Bono under the consultation of experienced legal practitioners.

[1] Understanding the Informal Justice System: Opportunities and Possibilities for Legal Pluralism in Pakistan (2015), ISBN: 978-969-9534-12-6

[2] Black’s Law Dictionary, http://thelawdictionary.org/legal-aid/

[3] A Brief History of Legal Aid Written by: Varun Pathak; http://www.legalserviceindia.com/articles/laid.htm

[4] Rule 2 THE PAKISTAN BAR COUNCIL FREE
LEGAL AID RULES, 1999

[5] Statutory Notification (S.R.O.) 684(I)/2011, Law and Justice Commission of Pakistan, Government of Pakistan

[6] Destitute Legal Fund Rules, 1974

[7] Rules and Orders of Lahore High Court, Vol. V, ch. 4, Part E

[8] The Public Defender and Legal Aid Office Ordinance, 2009, chapter V, section 14

[9] The study was conducted by INP-UNDP in 2012; it included a random survey of 10,322 poor households across all 4 provinces and GB, 92 Focus Group Discussions with 1,120 participants, 5 workshops with supply side stakeholders and 3 Case Studies on Urban Slums and 5 Consultative workshops with supply side stakeholders; https://www.inp.org.pk/voices-of-the-unheard-LEP

[10] Access to Justice and Legal Aid, https://www.dawn.com/news/1301948