Is ”Legal Aid” a constitutional right?

Political philosopher Charles de Montesquieu said, “In the state of nature...all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law.” The concept of legal aid and constitutional rights circumscribe reflections of peoples’ basic necessities. Legal aid and constitutional rightsare intricately related for the realisation of equality before law. Sometimes, a question arises as to whether legal aid is or accrues to a constitutional right. In order to find a reliable answer, one must evaluate the Constitutionin light of international documents on human rights and domestic laws.

Legal aid is a mechanism for providing legal advice and assistance to litigants and justice seekers who are otherwise unable to afford legal representation and access to the court system due to financial insolvency, destitution, helplessness and other socio-economic constrains. The concept of legal aid has been recognised in international documents on human rights including the Universal Declaration on Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Commonwealth of Independent States (CIS) Convention on Human Rights and Fundamental Freedoms, Arab Charter, African Charter etc. These instruments set out specific obligations of states to provide state-funded counsel for indigent persons. On a domestic level, the concept of legal aid may be construed as a requirement for the achievement of a socialist society as enshrined in the Constitution. Furthermore, laws such as the Code of Criminal Procedure (CrPC), Code of Civil Procedure (CPC) andLegal Aid Act of 2000 prescribe state-funded legal assistance to appropriate persons.

There is no explicit, unambiguous and formal expression in any article of the Constitution which recognises legal aid. However, the concept of legal aid can be linked to the preamble which envisions a socialist society. Article 14 places a duty upon the state to emancipate the working class, article 27 enshrines equality before law and equal protection of law and article 31 encompasses due process of law. Article 33 provides the right to a counsel and defence in case of arrest and detentionand article 35 mandates a fair trial. Unless legal aid can be claimed as of right it cannot be said that the goals as set out in the above-mentioned articles have been achieved. So legal aid as being adopted in the Constitution as a principle, it shall come under the consideration of “right” not “constitutional right”.

Constitutional rights don’t provide any financial range as a qualifying factor but legal aid prescribes so for the persons entitled to its benefit. For example, all citizens are entitled to the constitutional rights but only the persons whose financial condition fulfills the requirements prescribed thereby are entitled to legal aid.

Another point of contention is that constitutional rights are enforceable in a court of law but legal aid can only be executed by the institution created thereof, such as, the legal aid office. To be specific, violation of any constitutional right can be grounds for an application under article 102 of the Constitution but refusal to legal aid cannot be questioned before a court of law. A complaint to the district legal aid Committee is the only remedy for such refusal.

However, one may argue that if obligation of the state to make law in respect of public employment or advancement of backward section of citizens can be a constitutional right, why not legal aid? In response to this argument, it may be said that those constitutional rights are applicable only to backward section of citizens but legal aid is a generalised concept which is accessible to whole nation subject to qualification.

So, in view of the findings mentioned above, it can be surmised that legal aid is not a constitutional right but a right created under legislative enactment. It is the result of the governmental responsibility and a gateway to ensure access to justice. The Constitution directs the State to enable institutional intervention for the empowerment of the marginalised and backward section of people. So, in the context of our justice system, legal aid is the result of the constitutional commitment of equality.

The Writer is a Judicial Magistrate of the Chief Judicial Magistrate’s Court, Cox’s Bazar.