For any kind of efficient, effective and responsive public service system, four major elements — political commitment, legal and policy framework, institutional structure and adequate financial allocation — are inevitable. Legal aid services are not an exception. Rather, because of the nature of services and socio-economic context, the availability of the four elements is indisputable. Lack in any of them will create an unavoidable gap between expectations and reality.
Policy framework, political commitment
A UNITED Nations study shows that among 160 countries, only two-thirds have specific legislative structure on legal aid. Fortunately, Bangladesh is one of them. Among those two-thirds of the countries, 17 per cent started legal aid as right by law from 2000, 30 per cent from 1980, 25 per cent from 1950, 16 per cent from 1900 and only 12 per cent before 1900. Bangladesh established its legal and institutional structure in 2000 through the enactment of the Legal Aid Services Act 2000 and establishment of the National Legal Aid Services Organisation. Over the period, the government has adopted many necessary rules and regulations to establish a functional government legal aid system in Bangladesh.
Equal access to justice and right to be legally represented for all citizens in Bangladesh are constitutional commitment. These are also confirmed by other international conventions, particularly the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Recognising access to legal aid as ‘an essential element of a fair, humane and efficient criminal justice system’, the UN General Assembly adopted a set of principles and guidelines on access to legal aid in criminal justice systems on December 20, 2012. The guidelines have given responsibilities to the member states ‘to ensure and promote the provision of effective legal aid at all stages of the criminal justice process for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence, and for victims of crime’.
‘The 2030 Agenda for Sustainable Development’, particularly Goal 16, has reconfirmed an obvious interconnection of national development with citizens’ access to justice. And without proper access to legal aid, access to justice cannot be ensured, which means access to legal aid is a precondition for development. Considering this nexus, the seventh Five-Year Plan of the Bangladesh includes justice and rule of law as one of the key priority areas and gives emphasis to enhancing capacity of the legal aid service institutions.
Since 2013, Bangladesh officially celebrates April 28 as National Legal Aid Day. The day is gradually getting into a festive mode. Government agencies, non-governmental organisations, civil society groups and donor communities organise diversified activities both at national level and levels to mark the day.
It seems that Bangladesh has a high-level political commitment and legal and policy framework. Is this political commitment properly reflected in budgetary allocation? Is the allocated budget for government legal aid system sufficient to comply with the constitutional obligation, global development agenda and national legal and policy framework? What does data speak?
HAVING a separate component on legal aid in the national justice sector, budget can be considered an important indicator to assess the status of a legal aid system. The UNODC Global Study on Legal Aid-Country Profile 2016 shows that among the middle-income countries surveyed, 70 per cent have separate component on legal aid in the annual budget on justice system. Among LDCs, this is 14 per cent. Among upper middle-income countries and high-income countries, 65 per cent and 61 per cent respectively have separate budget. This statistics indicate a logical association between economic capacity of a country and having separate component on legal aid in the budget. Bangladesh witnesses a continuous growth in the gross domestic product and expects to upgrade its status into middle income country by 2021. Despite this growth, Bangladesh is yet to have a separate component on legal aid in the budget.
The year-to-year growth rate in the number of beneficiaries of the NLASO indicates that demand for legal aid services are constantly increasing. The calculated growth rate for 2013 to 2014 is 30 per cent, for 2014 to 2015 is 20 per cent and for 2015 to 2016 is 11 per cent. An official report also shows that the NLASO has increased its capacity in the utilisation of budget.
Before 2009, it could not utilise even 10 per cent of its allocated budget. From 2009, it started witnessing an upward trend in budget utilisation — 72 per cent in 2009, 86 per cent in 2010, 98 per cent in 2011 and 100 per cent since 2012. However, the budgetary allocation is not proportionate to the increased demand for legal aid. Participants in FGDs on legal aid categorically mention that legal aid lawyer’s fee is very poor. Data also show that the NLASO spent on an average one-fourth of total budget on lawyer’s fee.
In 2016, a total of 33,734 cases received legal aid. The calculated average money spent on lawyer’s fees per case in the year is Tk 799. If we consider the total budget including salary, supply and lawyer’s fee, then the estimated average budget for per case would be Tk 2,694. A report by Northern-Ireland Assembly shows that average amount of money allocated per case in 2006 was 335 euros in France, 1,245 euros in Ireland, 831 euros in the Netherlands and 198 euroes in England and Wales. So this is very difficult for district legal aid offices to provide experienced advocate for legal aid seekers with this low amount of budget.
Per capita legal aid expenditure is also used to assess legal aid services. For 2016, Bangladesh had per capita legal aid budget of Tk 0.56 (less than Tk 1). According to a report by the UK ministry of justice, the per capita yearly expenditure of England and Wales on legal aid for the year 2010–11 was around 39 pounds. Per capita yearly legal aid expenditure in Canada, Ireland, Denmark and Sweden were found 10, 20, 13 and 15 pounds respectively. The legal aid expenditure per head as proportion of the gross domestic product per head was calculated for Northern Ireland with 0.29 per cent, England and Wales with 0.18 per cent, Sweden with 0.05 per cent, the Netherlands with 0.07 per cent and Canada with 0.04 per cent. For Bangladesh, it is as low as 0.0005 per cent.
In an ideal situation, every person should be entitled to the free legal aid system, if she or he is in a situation where a prompt legal aid is essential. But in Bangladesh, primarily poor people are eligible for government legal aid. National poverty statistics show that 23.5 pe rcent of the people live below the upper poverty line. If we consider only them eligible for legal aid services, then the estimated annual budget per eligible person for legal aid for the year 2016–2017 would be Tk 2.37, which is clearly insufficient considering demand for it.
It is, therefore, important that the government should revisit its budget components and rethink how to ensure that adequate budgetary allocation to comply with its constitutional commitment and legal and policy obligation. Marou Amadou, minister of justice of Niger, rightly said, ‘Just as one cannot let people suffer from hunger or thirst, one cannot let them suffer from injustice or arbitrary power just because legal aid might prove costly’.
Munir Uddin Shamim works on a bilateral technical project on justice reform as national project coordinator.
Want stories like this in your inbox?
Sign up to exclusive daily email
More Stories from Opinion