Lord Denning, in his Book 'What Next in the Law' (1982) has critically discussed the existing provisions of legal aid in the UK specifically from 1949 till 1982. The British Legal Aid Act, 1949 facilitated the poor and middle class in civil matters with 'zero cost'. But the middle class had to pay the solicitors with what they felt comfortable. In the system, the winner party in a suit got all. But if he lost, he was exempted from any encumbrances to the opposite party. The Area Legal Aid Committee examined applications of persons eligible for legal aid facilities based on the 'logical reason'. Denning finds, the Act of 1949 neglected poverty while theorising selection of poor people. In the system, the solicitors and counsels were benefited more in return in the name of legal aid to the people. Likewise, Denning looked into criminal legal aid provisions which were introduced in 1967 and legal aid was given not only to the accused pleading not guilty but also to those who pleaded guilty.
Lord Denning found a number of flaws in the legal aid principles in the area of civil and criminal matters. The solicitors convinced the Area Legal Aid Committee to give them high cost for conducting the suit. Sometimes the solicitors used to come forward with a noble heart, but they did not get anything in return – mainly when the Committee suspected the reasonability of the cost. The court seemed to be biased to the persons getting legal aid. Ironically, some litigants getting legal aid insisted on full-tenure trial even if the opposite parties had willingness to enter into compromise fearing more costly ending of full trial. The reason is that legal aid receiving party used to get compensation in winning the case, but it had to pay nothing on the defeat. The opposite party had to bear cost of its own during trial and had to give compensation in case of its defeat. The parties had to undergo this procedure in the lower first courts. There were legal aids in the Court of Appeal and the House of Lords for the defendants who lost in the lower courts and did not get any legal aid. Denning strongly disliked this principle. He thinks this provision is the reflection of discriminatory behaviour of the statute towards the defendants. The Act was later amended in 1964.
Denning made a lot of recommendations for reforming legal aid mechanism. The legal aid provisions did not contain the principles of payment to the defendants if they defeated the plaintiffs. Denning recommended that such payment should be made. Again, the principles for selection should be based on 'logical necessity' and the suggestion of the solicitor in his favour for getting more suits-cost out of legal aid fund should be meticulously taken into consideration. Providing legal aid even to the middle class like the poor was another proposal.
In Bangladesh, the Legal Aid Act, 2000 (amended up to 2013) having a number of rules and regulations on various issues on legal aid, legal counseling, ADR, etc. seems to be more organised and proactive than many other European states in ensuring access to justice both in civil and criminal matters. The Legal Aid Board formed under section 6 of the Act is empowered to enact the rules and regulations containing the principles who are and are not eligible to get legal aid. The Supreme Court Legal Aid Committee, the District Legal Aid Committee, Upazila and Union Legal Aid Committee and Special Legal Aid Committee are empowered to consider applications submitted by the applicants for getting legal aid. The above Committees examine the applications under Rule 2 of the Legal Aid Rule, 2014 for persons defined in that rule. Rule 2 provides legal aid only to the persons incapable of getting justice due to financial insolvency, destitution, helplessness and for various socio-economic conditions. But the Act and Rules do not contain any interpretation clause of 'logical reasons' in allowing and sorting out applications for legal aid. Moreover, the Act and Rules do not contain any mechanism e.g. seeking account of balance in banks, examining documents of movable and immovable properties for detecting the poverty or destituteness of any person for legal aid.
Bangladesh does not provide legal aid to all classes of people. But it is ahead in giving legal counseling to people of all walks of life irrespective of their economic conditions. It can be argued here that Bangladesh's stance is more citizen-centric than the British provision. But Bangladesh cannot provide legal aid to the middle class who, after completion of most of the litigation are about to meet the level of destitution due to painstaking and prolonged litigation procedure. The present-day economic capacity of the state seems not to be too meagre to protect the fragile middle class by giving legal aid. The middle class can at least be given compensatory cost in the judgements in suits in which the legal aid funded plaintiffs lost. If such provisions are there in the Act, various false and vexatious claim and frivolous cases could be halted to tackle huge backlog of cases in Bangladesh. The Parliament of Bangladesh should amend the above absent provisions of legal aid following the views of Lord Denning for ensuring equitable and equal access to justice.
The writer is an Assistant Judge, Jhenaidah.