Concept of Legal Aid in International Legal Instruments
It is vividly expressed in the Universal Declaration of Human Rights, 1948 that all are equal before the law and are entitled without any discrimination to equal protection of the law.18[6] Besides this, various international documents have also been framed for the protection of these rights which imply the concept of legal aid.19
Universal Declaration of Human Rights, 1948
Under the provisions of the Universal Declaration of Human Rights, 1948 everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law and everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.20
International Covenant on Civil and Political Rights, 1966
According to the provisions of the International Covenant on Civil and Political Rights, 1966, all persons shall be equal before the courts and tribunals and in the determining of any criminal charge against him, everyone shall be entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own-choosing; to be informed, if he does not have legal assistance of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.21[7]
African Charter on Human and People Rights, 1981
It is also provided in the African Charter on Human and People Rights, 1981 that every individual shall be equal before the law and entitled to equal protection of the law.22
Arab Charter on Human Rights, 1994
Everyone is equal before the judiciary, and the right to judicial recourse is guaranteed for every person in the territory of a state as to the provisions of the Arab Charter on Human Rights, 1994.23
Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, 1995
All persons shall be equal before the judicial system. In the determination of any charge against him, everyone shall be entitled to a fair and public hearing within a reasonable time by an independent and impartial court. The decisions of the court or the sentence shall be pronounced publicly, but all or part of the trial may take place in camera for reasons of public order or state secrecy or where the interests of juveniles or the protection of the private life of the parties so require according to the provisions of’ the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, 1995.24
Concept of Legal Aid in National Legal Instruments
The concept of legal aid has been found in some of the legal instruments in our country such as the Constitution of the People’s Republic of Bangladesh, the Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1898, the Legal Aid Act, 2000 and the Legal Aid Rules, 2001.
The Constitution of the People’s Republic of Bangladesh
In line with the international commitment to the principle of equality of justice as enshrined in Article 7 of the Universal Declaration of Human Rights, 1948, it has been pledged in the preamble of the Constitution of the People’s Republic of Bangladesh that one of the fundamental aims of the state is to realise a society in which equality of justice would be secured for all citizens.25
There is a stipulation that it shall be fundamental responsibility of the state to emancipate backward sections of the people from all forms of exploitation.26 Article 27 of the Constitution of the People’s Republic of Bangladesh, 1972 states the fundamental rights as follows, ‘all citizens are equal before law and are entitled to equal protection of law’. ‘Equal before Law’ implies the absence of any special privilege to any individual in his or her favour. The expression ‘equal protection of law’ is dependent and based on equal before law as one cannot be achieved without the other. Therefore, violation of one tantamount without the other.27
Protection of law that the citizens and the residents of Bangladesh have the inalienable right to be treated in accordance with law, is guaranteed 28 and speedy and fair trial are ensured.29
Code of Civil Procedure, 1908
The provision of legal aid is found in the Code of Civil Procedure, 1908 for those who file pauper suits. As regards civil matters, Order 33 of CPC deals with the “pauper’ suit. The Conscious Law Dictionary says that a pauper, is a poor person especially one so indigent as to depend on charity for maintenance or one supported by some public provisions; one so poor that he must be supported at public expense. The words ‘pauper’ and ‘poor’ have nearly the same meaning and they both embrace several classes. But Explanation of rule I of Order 33 of CPC provides that a person is a “Pauper” who is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when be is not entitled to property worth five thousand taka other than his necessary wearing-apparel and the subject-matter of the suit.30[8]
Code of Criminal Procedure, 1898
The need for legal aid is felt more in criminal matters as the life; property and personal liberty of a person are inseparably connected there. As regards criminal matters, section 340 of the Code of Criminal Procedure, 1898 states that an accused should be defended by a lawyer and he must pay the fees and nothing more. Commenting on section 340(1) of the Code of Criminal Procedure, 1898, the Supreme Court of India observed that the right conferred by section 340(1) does not extend to a right in an accused person to be provided with a lawyer by the State, or by the police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations engage one for him. The only duty cost on the Magistrate is to afford him the necessary opportunity.31
The Legal Aid Act, 2000 & Legal Aid Rules, 2001
The economic condition of the common people forming 90% of the total population of our country baffles description. They are not only poverty-stricken but are deprived of the minimum basic needs of life. 32[9]Above fifty percent people are unable to maintain their livelihood.33 Modern life and civilisation seem to have been a beckoning of the horizon to them. The demon of illiteracy and wants has still kept them subjugated and ignorant of the basic human rights and amenities. Their fate revolves round the globe of darkness without any better change.
Therefore, our poor litigant people, most of whom pass more than half of the year through acute starving condition, cannot afford to reach the doors of any law chamber34. Moreover, in our country for the disposal of a civil suit several years are required, but poor litigants after fighting one or two years, lose their every thing and rail to move the suit, so the court pronounce decree in favor of the strong party.35
Thus the poor people cannot derive any benefit of their services in many cases and as a result, they silently bear the agonies and burns of injustice done to them in various spheres of life without any legal relief. This is nothing but a negation to them of one of their fundamental rights of equality before law and the equal protection of law36 It is, therefore, legal aid is essential for these people to protect their fundamental rights which is preserved in the constitution under Article-11.37
In Bangladesh, the Ministry of Law, Justice, and Parliamentary Affairs passed a resolution in 1994 to provide legal aid to poor litigants, and a particular amount of money was allocated to the District Judge. However, another resolution was passed in March 1996 repealing the Resolution of 1994. The necessity of a legislation to require legal aid was felt immensely. Several meetings of the Law Ministry paved the way to draft the legislation by 1998. Lastly, the Legal Aid Act, 2000 was passed by Parliament in January 2000 and was effective beginning April 28, 2000.
