Development Of Legal Aid And Legal Advice In Pakistan

DEVELOPMENT OF LEGAL AID AND LEGAL ADVICE IN PAKISTAN DEVELOPMENT OF LEGAL AID AND LEGAL ADVICE IN PAKISTAN By Mr. Justice Muhammad Haleem, Chief Justice of Pakistan (Address delivered at a Reception organized by the Pakistan Legal Aid Association at Karachi on the 18th January, 1988.) Mr. President, Pakistan Legal Aid Association, Members of the Association, Ladies and Gentlemen! It is indeed a pleasure for me to be here and to speak on a subject which is attracting the attention of all countries where adversary procedure is followed in adjudicating disputes. In some countries legal aid has assumed great importance in the context of legal profession and great advances have been made in institutionalizing it. I thank the President of the Legal Aid Association for providing me an opportunity to speak on the subject. It is in the paramount interest of a state that its citizens, whether rich or poor, should not be deprived of the justice which Aristotle described as being an essential element of the "good life". The need for legal services has grown enormously during this century and is still growing. There is likelihood in future for the legal profession to concern itself more actively with social issues, with law reform, with civil liberties, with poverty law, with problems of immigration than has been the case in the past. The movement to provide poor persons with equal protection of law and justice is known as legal aid work. The institutionalized legal aid for the poor is essentially a modern phenomenon. It is not a favour bestowed upon a poor applicant, but is a right granted to him by the state as part of the protection which the state bestows upon its citizens. The social and economic conditions of the poor result in a gap between the existence of their public and private rights and the ability to vindicate those rights. They lack ability, either because they do not have the knowledge and experience to use the legal system to their advantage or because they lack the political and economic power to make the system respond to their needs. Thus their depedence on legal services is different in kind and degree than that of other segments of society. The purpose of legal aid is to create awareness in the people who are illiterate and poor to defend and assert their rights and to provide legal assistance against their violations. Conceptually, therefore, no citizen should be unable to defend his legal rights due to poverty and illiteracy. The expense involved in making justice a reality to all citizens is but a fraction of the money spent on social services in different sectors of public life, while the object to be attained by legal aid is worthy of taking its place among the first principles of the modern world. The right of the indigent to legal representation has long been acknowledged as a responsibility of the legal profession. In most modern societies the help of a lawyer is essential, if not mandatory, to decipher increasingly complex laws and arcane procedures encountered in getting a dispute finally resolved. Methods of providing legal respresentation for those who cannot afford it are, therefore, vital. Until very recently, however, the legal aid schemes of most countries were fundamentally inadequate. They relied, for the most part, on services provided by the private bar without compensation. The right to access was thus given some support, but the state undertook no affirmative action to guarantee it. Lawyers tended to devote their time to remunerative work rather than to gratuitous legal aid. The major objective of any rational legal aid programme usually is to provide adequate legal assistance and advice at all levels of litigation. The administration of the scheme depends, of course, on the cooperation and assistance of the bar. The bar associations can contribute great deal to the successful running of the new scheme. Taking a note of its historical growth, I find that during 1919‑1923 Germany developed a system of state compensation for private attorneys providing legal aid, and the aid was given as a matter of right to all eligible persons. In England, the 1949 Statute created Legal Aid and Advice Scheme and entrusted it to the Law Society which is the national association of solicitors. This scheme recognized the importance of compensating private attorneys for providing legal advice as well as assistance in litigation. During 1960s and 1970s, the concept of legal aid attracted the attention of many other countries. Reform began in 1965 in the United States of America with the Legal Services Programme of the Office of Economic Opportunity (OEO). The research reports indicate four periods of development which legal aid work in the U.S.A. has passed through since the later half of the nineteenth century. The first period was known as proprietary period, where legal aid work was conducted for a small group of narrowly defined persons. The second period was the charity period, where legal aid was conceived as giving help for mercy. This was followed by the dispensing‑of‑justice period where legal aid work was considered as a part of the administration of justice. It is now succeeded by the fourth stage of development, where legal aid work is considered as part of a social community task. It was in July 1974, that the Legal Services Corporation was established to support, among others, the objectives of legal aid. A further boost to the legal aid programme was provided by the public interest lawyers in the United States who have sponsored Governmentally subsidized institutions in the form of public counsel schemes. The idea is to use Government resources while relying on the energy, interest and control of private groups. In 1972; France instituted a programme in which the private bar is compensated by the State for legal aid work. Sweden's programme of legal aid was enacted in May 1972, while the Federal Republic of Germany improved its system of increasing the compensation paid to private lawyers for legal services to the poor. The major accomplishment of the Austrian, British, Dutch, French and West German legal aid reforms was the advancement of the judicare system of legal aid. Judicare is a system whereby legal aid is established as a matter of right for all persons eligible under the statutory terms, with the State paying the private lawyer who provides those services. The goal of judicare system is to provide the same representation for low income litigants that they would have if they could afford a lawyer. The ideal is to make an arrangement with respect to billing the cost to the state, rather than the client. The applicant who meets the financial and merit tests for his claim is called upon to select his attorney from a list of lawyers who have r agreed to provide such services. A few countries with this background have recently chosen to combine the two major models of legal aid systems which are in essence complementary. Sweden and the Canadian Province of Quebec were the first to offer clients the choice between representation by staff attorneys or by private attorneys, although, the programmes have different emphasis. The Swedish system leans more towards the judicare approach since staff attorney offices support themselves essentially from attorney's fees paid by the State on behalf of assisted individuals, while in Quebec the law offices are supported directly by the Government regardless of how successfully they compete with private firms. Ideally this combined model allows individuals to choose between the individualized services of a private attorney and the special expertise of staff attorneys closely attuned to the problems of the poor. In a large number of countries where the scheme of legal aid is in operation, the authority for the grant of legal aid is the Court. Co‑existing with it, there are supplementary schemes run by the College of Advocates or similar bodies as independent charities, in which case the lawyers have control over the operation of the scheme. In a few other countries the Government controls the grant of legal aid by leaving it in the hands of the Minister of Justice or some other functionary. A number of instances are available where applications for legal aid are dealt with by mixed commissions. These commissions are usually composed of Advocates, Judges and Government officials, but their authority is derived from the Court. Legal aid is also serving as a vehicle for the training of the prospective lawyers. The College of Advocates at Buenos Aires runs a comprehensive scheme for legal advice and aid where certain selected students not only sit with a member of the College staff when advising, but also take part in the processing of cases which the Bureau conducts on behalf of poor litigants. In some of the American Universities, the Bureaus, known as Legal Aid Clinics, are run by professors and students as part of the regular course of legal training and some of them have attained a very high standard. There is now a recognition in advanced countries for the establishment of Community Law Centres whose justification derives from a variety of reasons, and if I may recount, these comprise instances where legal rights are violated, but those affected are unable to defend them, or where there is a realization of it they do not have the resources to enforce them, or there may be considerable areas of law where expert advice and assistance is not readily available. Legal advice outside litigation is a form of social service that is meant to assist the individual. In the midst of many laws, statutory orders and by‑laws that are increasing the power of the state and the public corporations, the individual needs more than ever the assistance of trained advisers to inform him of the rights that are left to him. Legal aid is, therefore, a problem not confined to national: bodies, but it has its international aspect as well. In 1924 the League of Nations initiated an inquiry on legal aid for the poor. Subsequently the United Nations supported the idea of an international legal aid clearing house to act as a source of information. The UN has recommended that the clearing house should compile periodically information on legal aid and maintain lists of competent reliable persons in each country, who would be available to handle cases. The essentials of legal aid as they have evolved in several parts of the world are: ‑that legal aid is made available in all Courts; that legal aid should not be limited to those normally classed as poor, but includes a wide group; that those who cannot afford to pay anything for legal aid, receive it free, and there is a scale of contributions for those who can contribute partly; that the cost is borne by the State; that administration is carried out by the legal profession through. the Bar Councils and it is answerable to the Chief Justice of the Supreme Court, who is advised on matters of general policy by an Advisory Committee; that the means of an applicant for legal aid are investigated by the National Assistance Board and the merits of each case are examined by Committees of Lawyers; that barristers, solicitors and advocates receive adequate, remuneration for their services under the scheme; that to raise the level of legal competence and, more generally, raise self‑esteem and confidence, legal literacy. programmes are required to be wide in scope. These programmes teach techniques for handling problems and means of utilizing services as well as conveying information about rights and resources. The development of legal literacy is a part of a larger programme that resocializes the adult and permits him to become a more active, self‑reliant, participant in the community; and that the lawyers attend to the task of developing a set of allies who are not only in regular contact with large number of people needing legal assistance, but are also capable of spotting general legal problems and of sensitizing the community to the occasion when a lawyer is needed. The idea of legal aid has been advanced in Pakistan ‑by the Legal Practitioners and Bar Councils Act, 1973. The Act has authorised the Pakistan Bar Council to invest any of its funds for the provision of free legal aid. This provision, even though it emerged hardly fifteen years ago, has drawn attention to the concept of legal aid. The Provincial Bar Councils are also allowed, by virtue of this Act, to make free legal aid available to. indigent litigants. The Provincial Bar Councils are, therefore, required to constitute a Provincial Committee for providing free legal aid. The Council has also been directed to appoint District Free Legal Aid Committees in each district. Each Provincial Bar Council has legislative authorization to make rules for the constitution of special fund for the purpose of providing free legal aid. Free legal aid may now be provided, under the Free Legal Aid Scheme, 1985, to the indigent litigants including destitute, orphans, widows and invalid persons in cases of accident, maintenance and guardianship, ejectment, preventive detention and in all other cases which the Provincial or District Committee may consider it expedient for extending free legal aid. It is high time that legal aid scheme is made effective in Pakistan to ensure that legal aid is accessible to persons in the form of legal advice. The scheme should provide different kinds of legal aid, i.e. (i) legal advice; (ii) general legal aid; and (iii) legal aid to persons involved in criminal proceedings. Legal advice should extend to giving advice and other aid such as counselling or the drawing up of documents. General legal aid may include a legal aid consultation, and may cover costs for necessary legal assistance, evidence adduced in a Court and expenses of the lawyers for representation in a Court. The eligibility criteria for legal aid can include factors such as income, dependence, assets and liabilities, cost of living and an estimate of the cost of legal services needed. Allowance can always be made for the provision of assistance in cases of unusual hardship, such as lengthy period of unemployment or illness. The legal programme, through whatever method it chooses, can decide which of the legal problems of the poor it wishes to pursue. It can be designed in such a way that it remains both a problem‑oriented and a client -oriented programme. It may be worthwhile for the scheme to provide for the country‑wide establishment of Legal Advice Centres wherein the advocates may be employed to give oral advice, supplemented by a written note, whenever necessary. The Legal Advice Centres may offer legal assistance in matters not involving litigation in order to close the gap between mere oral advice and aid rendered in connection with proceedings before a Court. The only persons eligible for assistance could be those whose income and capital are so minimal that they cannot be required to make any contribution whatever towards the cost of proceedings instituted on their behalf. Panels of advocates willing to act for persons likely to receive legal aid may be prepared and maintained. There may be separate panels for different purposes as well as for different Courts. The advocates who are on the panel should be able to devote the time, achieve the perspective, and accumulate the knowledge to resolve the legal problems of the poor on a broad and deep basis. While dealing with a legal aid case, the advocate does more than handle a particular legal matter bounded by a particular isolated set of facts. He takes the common threads of social, economic and political problems affecting large groups of people to solve the pervasive problems of the poor. The duty of an enthusiastic representation of the poor may be accompanied by a duty to perform representation in an independent manner. The legal aid programme in Pakistan would benefit from adequate directions and firmly established policies and procedures of the bodies operating it. A proper legal aid programme cannot exist without an adequate funding system. The responsibility for directing and controlling projects of legal aid and legal advice can be left to the local bar associations. The Federal and the Provincial Legal Aid headquarters can establish policies and priorities applicable to all legal aid work to be implemented by the local bar associations. The bar could assist by taking a hard look on how the code of professional responsibility applies to legal aid attorneys. Legal aid lawyers operating with the resources of the fund can be better supervised by the bar associations and can help to maintain a high standard of conduct. A carefully defined legal aid programme can help immeasurably in realizing the objective of furthering economic opportunity and guaranteeing justice for all. A realistic analysis of poverty, and a fair assessment of the legal needs of the poor and the legal talent available to meet them, can lead a legal aid lawyer to perform his role effectively. The legal aid programme in Pakistan requires an administrative apparatus, a policy making body, a mechanism to publicize its services and a means to screen applicants for their eligibility to participate, but what is essential is the use of private bar to provide legal services to the poor as part of their regular practice. Every lawyer in Pakistan, regardless of professional prominence or work load, is expected to find time to participate in serving the disadvantaged. The gap between the volume of legal aid work done by the private associations of lawyers on the one hand and the legal profession on the other is so vast as to demonstrate, beyond any reasonable doubt, the inadequacy of the existing legal advice facilities run by lawyers. It suggests that there is a substantial unmet need for legal services, specially for the poor. Another perspective of legal aid programme attracting the attention of members of the legal profession is that of relating public legal aid to the general scheme of social security, without undermining the present system of legal administration and without impairing the healthy principles of discouraging litigation. Any extension of legal aid scheme to cover litigation in quasi‑judicial bodies may well be a further development. Similar principles for giving legal aid should be invoked in arbitration proceedings. Legal aid and advice, as soon as they are properly institutionalized, will become an integral part of the administration of justice in this country. I have tried to give a broad outline of the scheme, but it is a matter of consideration for those, who would be concerned with its framing and implementation. This framework would be a further step towards the realization of the principles of social justice enshrined in the Constitution. Mr. President, you have certainly made a good beginning in establishing the Pakistan Legal Aid Association, and I have every reason to hope, that in due course of time, a plan for the institutionalization of legal aid on comprehensive scale would emerge, of course, with the joint efforts of the Government and the members of legal profession. I wish you the best of luck in your efforts directed at promoting the cause of legal aid in Pakistan.