Is legal aid a luxury or a necessity?
Reflections on the World Day of International Justice (July 17, 2022)
For many, the idea of legal aid may seem like a luxury; for others, it might seem unfeasible for the state to spend public resources to help “criminals” and the most vulnerable.
These perceptions are particularly prevalent in countries with limited resources. However, experience around the world suggests that legal aid is essential to our constitutional right to a fair trial, and that it also helps to speed up and make court proceedings more efficient, thereby saving judicial time and resources. precious.
The 2016 UNODC/UNDP Global Study defines legal aid as “low or no cost legal advice, assistance and/or representation to the person designated as entitled”, echoing the definition of the Principles and United Nations Guidelines on Access to Legal Aid in Criminal Justice Systems. The guidelines, adopted by UN member states, aim to help countries with the basic principles for establishing criminal legal aid systems.
Legal aid enables the poor and marginalized in society to better understand and exercise their rights, to resolve their differences peacefully and to seek redress for grievances and thus enjoy equal protection of the law. Effective legal aid also improves the performance of justice systems, including law enforcement, while strengthening accountability and respect for the rule of law – all of which are integral to sustainable development.
As outlined in Bhutan’s Judicial Strategic Plan, during the initial phase of the judicial system, in addition to their core functions, judicial officers often play other important roles as investigator, prosecutor, defense counsel , mediator and even legislator. He further notes that there remains a widespread misconception that the judiciary is solely responsible for the administration of justice. These findings are real and call for the urgent need to set up long-lasting and effective legal aid services. The courts recorded 1158 criminal cases in 2019. Of which 935 were offenses (83%) which can lead to a prison term of more than one year if convicted. Given the consequences of imprisonment for the livelihood and liberty of the accused and the need for public resources, there is a need to extend legal aid services to those accused who need them.
Nothing said so far is new in Bhutan as the Civil and Criminal Procedure Code in 2001 and the Constitution in 2008 were fully aware of the urgency of introducing legal aid into the judicial system. bhutanese. The Principles and Philosophies of the Constitution of Bhutan explain that legal aid upholds the rule of law and stabilizes society by enabling the poor to regularly seek redress for their grievances through formal court proceedings. It also proposes that the right to free legal services be a constitutional right of any defendant who is unable to hire a lawyer in order to guarantee access to justice for all, regardless of income, which is one of the indispensable components of a fair trial.
At the height of the COVID-19 pandemic, many vulnerable men and women encountered difficulties that required legal interventions. Faced with the urgency of legal aid services, UNDP, NCWC and RENEW joined forces to initiate an experiment aimed at extending legal aid services to the most deserving women. Contrary to the strong belief that no lawyer would be willing to provide services at a low subsidized rate, many have come forward and rendered their services professional. One of the beneficiaries described the program as “a shining light in the dark and a helping hand during the worst time of her life”. When speaking with people with disabilities who had previously come into contact with the justice system, one of the main barriers to pursuing justice was the lack or lack of legal knowledge and the ability to adequately represent a case before the court. court.
In a long-awaited development, Bhutan is set to establish a national legal aid system. As a country that has embraced the values of Gross National Happiness and compassion for the vulnerable, this will go a long way to ensuring that no one is left behind.
Based on UNDP’s experience in supporting the establishment of national legal aid systems around the world, I would like to offer some thoughts. In many cases there are fears that legal aid systems are being hijacked by those who do not deserve it and that there may be intolerable selection errors. Identifying deserving people who meet the criteria of “indigent people” can indeed be difficult, and there is no perfect formula. As is the case with all social safety nets, there will always be selection errors, but the socio-economic cost of not serving anyone is much higher. One consolation is that there is a built-in natural selection process in that those who can afford legal services will most likely hire lawyers themselves. In societies with a strong social fabric, local communities can be an asset in providing information on who truly deserves legal help, as conventional ideas of assets and means are very context specific.
As past experiences with RENEW and NCWC have proven, a whole-of-society approach will enable sustainable legal aid service systems. We worked closely with lawyers from CSOs and law firms who were willing to offer pro bono or low bono services and law students willing to build their experiences and legal awareness support. There is an abundance of goodwill out there.
With regard to concerns related to resource constraints, priority may be given to criminal cases and to the most vulnerable women and children. In other countries, working with paralegals and running bogus courts has significantly reduced the burden on limited government budgets.
As for the belief that legal aid helps “criminals”, we must bear in mind that under our laws a person must always be presumed innocent until the contrary is proven beyond a reasonable doubt. By giving the accused a fair chance to challenge the charges and present evidence capable of raising a reasonable doubt, we will become more confident that those convicted of criminal offenses by our courts are truly guilty. In other words, legal aid helps us minimize the risk of miscarriage of justice.
For services to be used effectively, they must be designed from the user’s perspective, applying design thinking so that they are accessible to those who face heightened challenges and vulnerabilities. User-friendliness (where the service center is located, how it is organised, how to access services, for example) and speed are two essential qualities of effective legal aid service systems.
Here in Bhutan, we have much to celebrate and look forward to on this year’s World Day for International Justice, celebrated annually on July 17. We sincerely commend the decision to establish the Legal Aid Center and those who were involved in establishing the country’s first legal aid service systems. UNDP is ready to be a humble partner in this adventure.
Resident Representative, UNDP Bhutan