Access to Justice and the Sustainability of Legal Aid

Dr Syed Refaat Ahmed

It is primarily the state's responsibility to make laws to enhance accessibility to justice and legal aid. Our constitution prepares us for institutional intervention to empower the marginalized and backward sections of the society. That is the starting point of judicial responsibility of ensuring access to justice.

The commission on legal empowerment clearly endorses a global agenda on capacity building of the marginalized people through ensuring the use of laws, legal system and legal services.  A crucial component of judicial work is the capacity to ensure access to justice to break out of a systemic cycle of denial, exclusion and deprivations. There are ample initiatives in both government and non-governmental sectors to facilitate access to justice. But there are many challenges yet.

Availability of legal aid does not necessarily translate into access to quality justice.  Initiatives such as HRLS and Police Reform Programmes indeed aim at women and children with a broad long-term strategy to overhaul the socio-economic imbalance that adversely affect these groups. But such initiatives represent the demand side of our reform. It is with the supply side of accessibility to justice that the judiciary has to engage itself.

I propose the way forward will be to upgrade and expand the existing mechanism under the Legal Aid Services Act 2011 and also Gram Adalot Ain 2006. These two laws may be reflected in a consolidated statutory regime with the Section 89A provisions of the Code of Civil Procedure, providing the essential basis of dispute resolution.

Such proposed consolidated legislation work significantly to integrate the role of the formal justice delivery system at all levels, both as a facilitator of aided access and as a key stakeholder in dispensation of justice equitably and fairly. Innovative and efficient management of court proceedings and auxiliary services will be the order of the day and the judiciary will be at the helm or co-equal partner in achieving this objective. The aim will be to ensure an entrenched constitutional status for all under the equality and protection provisions of the Constitution.

The catch phrases of today's discussion are partnership, coordination and sustainability. We must appreciate the efforts from both government and NGOs.  We need to increase cohesion between our efforts to take them forward. We need to create a broader catchment area for the stakeholders, engage policymakers and finally the constitutional impetus to clarify to the judiciary itself the kind of role it can play within this collaborative regime.

A. F. Hassan Ariff

Organizations that are providing legal aid services should coordinate their efforts to bring more effectiveness. I do not see any representative from the Bar in this event, which is a potential area one should tap for legal advice and assistance.

Sara Hossain

Bar is already engaged in providing legal aid services. But we need to make geographical mapping of their engagement so that we can establish an effective structure where all the legal aid providers can work in cooperation with Bar members.

A programme called 'law clinic' is successfully going on in four public universities in Bangladesh, which should be expanded to private universities also. 

Our non-government legal aid providers need to work in the areas which are not covered by NLASO due to various limitations of a government body.  I must appreciate that NLASO is covering all the three hill districts. But there is still a lot to do in these remote areas. Non-government legal aid providers should come forward to collectivise our effort in this regard.

I think the main point of sustainability is that we have to raise awareness of the people so that they seek legal advice. A research shows that in Bangladesh only two per cent people seek any kind of advice in issues where there is scope of legal intervention. Media, advertisement agencies and other private bodies can provide us great support in this regard.

Malik Abdullah Al-Amin

We have employed 23 permanent district legal aid officers and hope to soon cover rest of the districts. Through our district legal aid services we have provided legal aid to 1,90,000 people in the last seven years. In the last six months we have provided legal advice to 4,687 people through our national help line.  Our alternative dispute resolution mechanism has a provision for issuing certificates signed by a senior assistant judge, which certainly carries weight. I would request our non-government legal aid providers to collect certificate after solving a case through ADR.

We are working to engage students in legal aid services. This year we inserted a question on legal aid in the judicial exams. Plans are underway to engage students in our district legal aid offices during their study break.

Prof. Abdul Bayes

I want to thank all the distinguished participants for their inputs. We hope the recommendations drawn at today's discussion will help improve our existing legal aid services and boost their sustainability as well. We also hope to follow up the implementation of these recommendations.

K.A.M. Morshed

Since rule of law and development have a significant interrelation and are mutually reinforcing, we have to ensure poor people's access to justice to achieve the sustainable development goals. To sustain the legal aid services we need coordination among various government and non-government efforts. We also have to make people aware about existing legal aid services.

Andrew Jenkins

According to Universal Declaration of Human Rights, justice must not be restricted. Inaccessible justice is justice denied. So access and legal aid both are equally crucial to ensure justice for poor people. Sustainable Development Goals essentially focus on rights-based development. That is why those who work in the judiciary and provide legal aid have an important role to play in Bangladesh's pursuit of her SDG targets.

Sajeda Farisa Kabir

Since its establishment in 1986, BRAC's Human Rights and Legal Aid Services (HRLS) programme has been providing legal aid and knowledge to poor people. Currently, HRLS is the largest NGO-led legal aid programme in the world.

HRLS identifies itself with SDG 16.3 which mainly deals with access to justice and promotes the rule of law. HRLS components are legal awareness, legal aid, community mobilization, property rights, juvenile justice, reducing prison overcrowding, and safety in the workplace.

At present, we are working in 61 districts and have 473 legal aid clinics. The barefoot lawyers/Shebikas work at the grassroots and spread legal awareness amongst community members. So far, we have trained 6,350 barefoot lawyers.

From the very beginning, legal aid clinics applied alternative dispute resolution (ADR) methods for resolving disputes. From 1998 till September 2016, we received 2,71,158 complaints in these clinics, of which 1,47,318 were resolved through ADR. A total of 55,013 cases were sent to court. We received 41,471 judgments from court. Till date, we have recovered BDT 176,15,89,574 on behalf of our clients.

HRLS actively engages in addressing incidents of violence.  It counsels the victim family and assists them in lodging cases at the police station or in court. Up to September 2016, we provided legal aid for 626 murder cases, 2,272 rape survivors, 691 acid survivors and 6,592 dowry cases.

Under Property Rights Initiative (PRI), we helped poor communities identify their entitlement to property rights and supported them in accessing their claims. So far, we have trained 943 'land entrepreneurs' in 6 districts of Bangladesh and 1,15,604 clients took service from  these land entrepreneurs.

In the coming years, HRLS will continue its legal awareness programme for rural women. We also intend to engage men and boys to reduce violence against women and girls. We will increase focus on out-of-court settlements. We are planning to introduce mobile legal aid clinics for hard-to-reach locations. Finally, we will continue partnerships with government and other NGOs, while building fruitful new partnerships with potential stakeholders. In the next five years we will extend our services to urban areas.

Rumana Ali

Research and Evaluation Division of BRAC conducted a study to investigate ADR process implemented by HRLS and evaluate both immediate and long-term impacts of the implementation of decisions on the life of the disputants.

RED randomly selected 50 HRLS clinics for the study.  A total of 193 complainants were selected, again randomly, who took service from these clinics in 2010-2011. The sample size was 386.

Our first attempt was to find why the complainants came to ADR. Three overlapping factors we found here: bad relation between complainant and defendant, defendant's hostile behaviour with complainant and demand for dowry from defendant's side.  At the initial stage relatives and family members tried to solve the issue.  When it did not work they went to local institutions such as village arbitration bodies.  When that also failed, they came to ADR. When the disputants are not satisfied with the decision of ADR, the complaint is taken to court. In many cases defendants, in fear of court, came back again to ADR.

In 89.6 per cent cases the ADR decision was reunion of the disputants and in 10.4 per cent cases the decision was given for divorce. Most of the disputants were satisfied with the decision reached through ADR. In 97.4 per cent cases ADR decisions were fully implemented. The money received through ADR decision was used for both productive and non-productive end with 76 per cent disputants completely satisfied with the way compensation was managed or spent. Regarding income generating activities, 13 per cent used to earn before ADR, which increased to 22.3 per cent after ADR.

We found that after ADR disputants' knowledge on legal issues has increased and mobility score of the complainant has gone up to 32.6 from 28. They had greater freedom in taking decision on mobility and enjoyed greater freedom in going to places including market and offices. Most of the disputants said they gained better acceptance in family after ADR.

We can conclude by saying that although HRLS does not have jurisdiction to formally implement ADR decisions, in most cases both parties were satisfied with ADR decisions and their implementation.

Syeda Sitwat Shahed

Global discussion on indicators development for SDG-16 for assessment of progress focuses heavily on government action. Assessments of progress towards this goal at a national level should essentially take into account the contributions of civil society organizations.

Across the world, civil society-run legal empowerment programmes are making important contributions to securing access to justice by means of supplementing access points to justice, offering avenues to pursue government accountability and improving community knowledge of rights. Bangladesh has a vibrant network of organisations that provide legal services, such as BRAC HRLS, Bangladesh Legal Aid and Services Trust, Madaripur Legal Aid Association and Ain o Shalish Kendra.

The present study, using HRLS-BRAC data, demonstrates the type of data available from civil society legal empowerment programmes that could be incorporated into national and international frameworks to measure Goal-16. We attempted to observe HRLS contribution to community through three avenues: Strengthened connections to legal services, improved social wellbeing and improved economic wellbeing.  BRAC HRLS has been developing a distinct case base, mostly of married women seeking dower and/or maintenance from their husbands.

From 2012-2014, HRLS case load has grown by 6 per cent.  This programme is strengthening enforcement of its own ADR process by giving clients continued alternative services when the first option fails. Of all HRLS clients, 52 per cent   filed cases after the second party failed to respond to ADR. HRLS assisted in filing these cases. Other frequent reasons for going to court were: Second party, usually husband, failed to comply with ADR verdict (6-13 per cent).

An analysis of 332 case files suggests that HRLS actions have impacted the social wellbeing of clients in several positive ways. Its staff members often discussed the legal standards for dower during the mediation sessions, whether or not it was even an issue in the facts of the case.  HRLS support also helped preserve or restore reputation of the victim women in the community. The method of its ADR process includes follow-ups on six random occasions in the next six months period after resolution. Our research reveals that HRLS staff conducted at least one follow-up in 96 per cent cases.

HRLS staff members play a pivotal role in ensuring that the agreed upon amount is paid in full or at least partially, in cases where both parties decide providing the client with compensation for dower and/or maintenance. HRLS assists clients in recovering the maximum amount of compensation. Among the case file data collected, 103 file recorded the negotiated amount of support at the time of marriage. We found that, about 61 per cent of the negotiated amount listed was agreed to be paid to first party through ADR.

HRLS also records significant data regarding clients' access to justice, presenting a holistic observation of progress towards justice and sustainable development, which may well complement the government administrative assessments. The indicators explored in this paper suggest that civil society is an important source of information about people's justice-seeking behaviour. As the UN Statistical Commission works with governments and civil society to finalize the indicators by which progress will be measured under SDGs, this research is an example of the importance of measuring the contributions of civil society.

Junayed Ahmed Chowdhury

There is a communication gap between the Bar and legal aid providers. I believe there are many legal professionals who will be interested in providing free legal aid to the poor. Legal aid service providers like HRLS should approach them.

Syed Kaiser Ahmed

We have introduced an app called Nivedita that besides informing women about our insurance policies, also arranges for them fast track legal aid services. We hope to upgrade this service in cooperation with legal aid providers. We can support fund raising for such pro-people programmes.

Khaled Hamid Chowdhury

It is imperative that the curricula of law courses and public exams include the issue of access to justice. There can be courses that will require students to take the messages and information of access to justice and legal aid services to the community.

Masuda Yeasmin

The government has established 64 district legal aid offices, in each of which a senior assistant judge is tasked with overall coordination. Since 2015, we have been carrying out pre-case and post-case mediation, which is a kind of alternative dispute resolution mechanism. Our national help line at 16430 is a direct channel to provide answers to public queries on law and give free legal advice.  NLASO has also introduced an app directly connected with the national help line.

While appreciating the initiatives of NGOs such as BRAC, BLAST and ASK, we feel that a close collaboration should be established among all the initiatives by government and NGOs. That way ensuring effective coverage of legal aid services across the country will be possible while avoiding overlapping.

Nausher Rahman

Bitopi has long experience in creating mass awareness campaigns on nationally important social issues including family planning and sexual and reproductive health. Access to justice is such a socially significant issue that needs awareness at both policy and mass levels. As an advertising agency we will be happy to partner in such initiatives.

Chanchal Mukherjee

Many convicts languish in jail even after they serve their term, entangled in legal loopholes. NLASO and Supreme Court legal aid services can intervene to ensure they are freed in time.

Nisbat Anwar

We have a plan to educate our employees about access to justice. They will in turn educate their family and relatives. We are also interested in working with BRAC in this regard.

Mitali Jahan

Many times we see several government committees exist to deal with legal issues in the same area and often with the same people. It only creates confusion. I would request NLASO to simplify the process so that designated staff in a particular committee can play an effective role.

We find the Supreme Court legal aid committee largely bureaucratic. The scope of its services is also vague. While these issues should be sorted out, efforts should be taken up to educate legal aid providers about its services.

Advocate Md. Ibrahim Mia

The government should appoint permanent officers in every district legal aid office. It will certainly strengthen their coordination capacity. The meetings of the district legal aid committee (DLAC) should increase their effectiveness by close monitoring of the cases they are dealing with.

The union and upazila level legal aid committees formed under government instruction are largely ineffective. To better activate them DILAC meetings can invite representatives of upazila and union legal aid committees. 

KEY DISCUSSANTS

* Chief Guest: 

Dr Syed Refaat Ahmed, Honorable Justice, High Court Division, Supreme Court of Bangladesh

* Honorable Guests:

A. F. Hassan Ariff, Former Attorney General, Former Adviser, Caretaker Government & Senior Advocate, Supreme Court of Bangladesh.

* Sara Hossain, Barrister, Advocate, Supreme Court of Bangladesh, Honorary Director, Bangladesh Legal Aid and Services Trust (BLAST) 

* Malik Abdullah Al-Amin, Director, National Legal Aid Services Organization, Ministry of Law, Justice And Parliamentary Affairs

* Welcome Speech:

 Andrew Jenkins, Unit Coordinator, Impact Assessment Unit, Research & Evaluation Division (RED), BRAC

* Presentation by: 

Sajeda Farisa Kabir, Barrister, Advocate, Supreme Court of Bangladesh, Programme Head, Human Rights and Legal and Aid Services, BRAC

* Rumana Ali, Senior Research Associate, Social Development Unit, Research & Evaluation Division (RED), BRAC

* Syeda Sitwat Shahed, Senior Research Associate, Impact Assesment, Research & Evaluation Division (RED), BRAC

* Moderator: K.A.M. Morshed, Director, Advocacy for Social Change, Technology, and Partnership Strengthening Unit, BRAC

* Closing remarks: Prof. Abdul Bayes, Director, Research and Evaluation Division, BRAC

OTHER DISCUSSANTS

* Junayed Ahmed Chowdhury, Barrister, Advocate, Supreme Court of Bangladesh, Managing Partner, Vertex Chambers

* Syed Kaiser Ahmed, DMD, Green Delta Insurance

* Khaled Hamid Chowdhury, Barrister, Advocate, Supreme Court of Bangladesh, Head of Laws, London College of Legal Studies (South)

* Masuda Yeasmin, Assistant Director, National Legal Aid Services Organisation (NLASO), Ministry of Law, Justice And Parliamentary Affairs 

* Nausher Rahman, Bitopi Advertising 

* Chanchal Mukherjee, Project Coordinator – Paralegal Advisory Services, IRSOP, GIZ

* Nisbat Anwar, Head of Human Resources, Renata Pharmaceuticals Ltd

* Mitali Jahan, Project Manager, Bangladesh National Women Lawyers Association (BNWLA)

* Advocate Md. Ibrahim Mia, Project Coordinator, Madaripur Legal Aid Association