LEGAL AID SERVICES TO NEEDY MEN & WOMEN*

LEGAL AID SERVICES TO NEEDY MEN & WOMEN* <!--[if gte mso 10]> LEGAL AID SERVICES TO NEEDY MEN & WOMEN* By Rashida Patel, President, Pakistan Women Lawyers' Association I consider it a great honour to present the keynote address to this most learned audience. The fact of your being here today, ladies and gentlemen, is in itself a demonstration of your concern for Legal Aid Services for the needy men and women in Pakistan. * Keynote address at the Pakistan Women Lawyers' Association "National Seminar on Legal Aid Services" from 2nd to 4th February, 1989. Thousands of people in Pakistan go without legal redress because they are unable to pay the fees for lawyers and. Court expenses and their ignorance about the law and their rights and their .apprehension as to whether justice will result for them by a law suit. Many suffer voiceless, defenceless. 'Some take the law in' their own hands. A case example is mob violence to retaliate against road accidents which have become a daily occurrence, especially in Karachi, often leading to serious repercussions. ACCIDENT CASES The PWLA Legal Aid Center is currently dealing with a tragic accident case. Their scooter was hit by a tanker. The wife and two minor daughters died, the husband has been badly injured. When the father of the injured man came to us, we immediately told him about the Government Insurance Scheme for compensation of Rs.15,000 on death by accident--sadly the time limit of 90 days for filing the application for compensation had already elapsed, we are struggling to get it waived. A suit under the Fatal Accidents Act needs to be filed and a case for torts. The hitch is that the license number is of Quetta and, it is difficult to trace' the exact address of the owner of the vehicle, to make him a respondent. The driver of the truck is already on bail. I am citing this case to stress that some research and thinking needs to be done to make it simpler for accident victims to go to Court. The vehicle owners must give an address in every city that they ply. A system should be evolved to ensure that every accident case can be brought to Court for compensation under torts or relevant laws. I hope the plenary sessions and group discussions will consider this and bring out well-thought out recommendations to systemise this process.' MEDIA Another important aspect, this case brings out is the role of the media. I am aware that the television had for some days displayed an advertisement by the State Life Insurance concerning the compensation payable for the death of accident victims. Somehow this has not been sufficient. The media can be highly instrumental in making people aware of their rights under the law. The television and radio being State-owned bear a, great responsibility. I believe there is a recent shift in the State media policy towards programmes to make people conversant with their rights. It must remain a continuous ongoing process, not only through advertisements but also by interviews and plays, songs, skits, which are more popular. We in the legal aid center tried hard to get the message across to the women, of the availability of the Legal Aid Service through the T.V. but did not cut any ice with the authorities, till a playwright brought the Legal Aid Center into his play, which made it known. Radio did some interviews on cases. Hearing of the service on the radio many women came to the Center. One woman came to us who had for several years been abandoned by her husband but did not know where to go without money to seek a dissolution of marriage. Privately-owned newspapers have an important role to play, especially the widely read Urdu and English newspapers. The "Dawn" newspaper has published some articles on the cases handled at the Legal Aid Center, SOLUTIONS BY OTHER COUNTRIES It is the trend in European countries and in the U.S.A. for extreme Government funding to non-Government organisations for Legal Aid Bureaus. This should be seriously considered by our Government. COST SHIFTING MECHANISM Government should also consider law reform to enable the poor to get legal redress. In many countries the cost shifting mechanism is a great asset. In simple terms the loser of the case pays the winning party the costs. We also have the system of awarding costs, but this is at the discretion of the Courts. The actual costs are never recoverable. Cost shifting mechanism can eliminate false litigation especially by. those with money.. In England studies have shown that the cost shifting mechanism does not deter the poor man from filing or defending a case but it deters the middle and upper class as they apprehend that on losing the case, they will have to pay the costs incurred by the opposite party. MALAYSIA On my visit to Malaysia found there are Legal Aid Centers run by the Government and Legal Aid Centers run by Bar Associations. The Government provides legal advice and lawyers to the people whose income is below a certain minimum. This may become extremely expensive in Pakistan as most of the people live if not below the poverty line, in conditions of dire need. FREE WORK BY MEMBERS OF THE BAR Under the Bar Association Legal Aid Scheme members of the Bar Association are required to give some hours of work free of charge at the Legal Aid Center. In the U.S.A. today a controversy is raging on this issue as a Bill is before Congress to make it compulsory for members of the Bar to work free for a certain number of hours for pro bona legal services. Some critics attack this as being target taxation and forced labour. The rejoinder to this is that the members of the Bar have a State created monopoly on appearance in law Courts and when the State-requires them to do some free work it is not forced labour but a give and take of benefits. TAX EXEMPTION In some countries there is a system of giving tax-exemptions to law firms that do at least ten per cent of their cases as free legal aid. This may encourage the top lawyers in the high income groups to come forward. I am conscious that quite a number of lawyers in any case do some free work. CONTINGENT FEES The system of contingent fees may also be considered. No fees are charged by the lawyer, but if the claim succeeds, the lawyer becomes entitled to 20 to 30 per cent of the amount recovered. This may help a number of people who have no ready cash to pay lawyers fees. LAW REFORMS AND RESEARCH Legal Aid Services and law reforms and research have a close linkage. As we deal with eases at the Legal Aid Center so many atrocities come to our attention. I was under the impression that sale of women takes place in tribal areas and in the Northern areas in North-West Frontier Province and in Baluchistan. But at the Legal Aid Center cases of sale of girls by marriage come to light. In one case attached to a Nikah-Nama of a fifteen-year old girl was a stamp paper agreement clearly stating that the grandfather of the girls had received Rs.25,000 from the bridegroom as consideration for the marriage. Recently a young happily married couple came to the Center. The husband brought a letter from his father, stating that the murder of his brother had been settled by receiving as compensation two young girls-- and he wanted his son to come home and marry one of the young girls. TALAQ: TALAQ: TALAQ One very serious problem faced by wives comes forth again and again in cases before the Legal Aid Center. The easy unilateral manner in which a man can divorce his wife creates misery in many lives. The 'wife may be faultless but she is defenceless against "Talaq: Talaq: Talaq". Home, husband, children, belongings are all lost to her. In some cases the divorced wife has nowhere. to go, family is in some remote village and if she leaves she loses everything--her belongings, her children, her Haq Mehar. In some other cases even, if the woman has a brother in Karachi, there is no place for her and her children in his overcrowded, poverty-ridden home, where he is living with his wife and ten children. The woman is in pitiable circumstances. She has no skills and is emotionally torn. It is tragic that this tragedy is enacted as an Islamic right of the husband. The fact that the Quran enjoins justice and fair-play is overcast by juristic opinions which support such a divorce. The Quran clearly states: "Or set them free on Equitable terms." (S.II Verse 231)-- The wife if she must be divorced should be paid her Haq Mehar, given her belongings and her Jahez, given a place to stay and provided for, her children should be restored to her, unless she is incapable of caring for them. Verse 241 of Sura II provides that "For divorced women maintenance (should be provided) on a reasonable (scale). This is the duty of the righteous". MAINTENANCE Cases come to the Center where the husband deserts his wife and children or even fails to maintain them properly. A ease is filed for maintenance, but it takes too long to get a decree and get it executed in the meanwhile the wife and children suffer -- the Court should be empowered to pass interim orders for a minimum maintenance required in fit cases. No doubt these are extreme cases and not all marriages and the majority of husband-wife relationships do not fall in the above categories. A large number of cases dealt with by the Center relate to family laws but a number of other cases are also dealt with. JAIL CASES MURDER The Center has taken up several cases of women in jails. When we visited the jail on behalf of the Legal Aid Center more than a year ago, I met a woman Asghari who was in solitary confinement convicted for murder. When she told me her story I felt she was a woman who had become a target of miscreants and not been able to counter their strength. A Jail Petition for Special Leave to Appeal had been allowed and appeal was pending in the Supreme Court since 1983, I had a Vakalat-Nama signed by her and pressed an application for early hearing and preparation of the paper book. In that case Mst. Asghari, mother of ten, and her grown-up son and daughter were convicted by the trial Court for the murder of their husband/father. Muhammad Shafiq the alleged paramour of Mst. Asghari was also convicted. The High Court set aside the conviction of the son and daughter but confirmed the conviction of Mst. Asghari and Muhammad Shafiq. Mr. Kaikobad was assigned this case. The Supreme Court on 18-1-1989 allowed the appeal by a short order, the reasons to be recorded later. Certified copy of the short order of the Supreme Court was immediately sent by me to the Jail Superintendent. The procedure is that the Supreme Court has to convey the order to the High Court and High Court to the convicting trial Court which in turn will send the release order to the jail. Surely this process is quite unnecessary. In one case dealt with by a Law Officer of the Legal Aid Center the woman accused of murder was in jail for eight years without the case even beginning. We are trying to have the charges against her dropped. She has become a mental case. ZINA The Center has dealt with many cases under the Zina Ordinance of women in the jail. Experience shows that not only innocent men and women suffer but children are as much victims of this Ordinance. This law must be repealed at the earliest. It is un-Islamic and inhuman. Women accused of Zina often lose the support of their family and friends. A major problem is their rehabilitation after obtaining their release. They have at times no place to go. PUBLIC INTEREST CASES The Pakistan Women Lawyers' Association alongwith other Women's Organisations has filed 5 Shariat Petitions in 1983 challenging the provisions of the Hudood Ordinances. Mr. Khalid Ishaque" Advocate is appearing. In. the Petition 14 of 1983 it has been contended that the Zina Ordinance which provides for Tazir punishment is un-Islamic. It has been submitted that the Quranic Ayats 2, 4, 5 and 13 of Surah Al-Noor relate to the Offence of Zina and prescribe the number of witnesses for proving the charge. In Ayat 13, it is explicitly mentioned that in case of failure to produce 4 witnesses by the prosecution the witnesses who might have appeared are liars in the eyes of Allah --A testimony which is characterised as false cannot be used for conviction as is done for awarding Tazir punishment, under the Ordinance. It is tragic that in our country women who file a complaint of rape to the police get charged with the Offence of Zina and are convicted. This has created a fear against going to the police in rape cases. People are afraid to file complaints of rape and the Zina Ordinance had made it worse. JUDICIAL ACTIVISM The strong protests by women's groups and human rights activists have created a climate of concern against the misapplication of the Zina Ordinance. The Federal Shariat Court is on record of having suo motu granted bail to Safia Bibi the blind girl who was convicted of Zina, when her father had lodged a' complaint that his daughter was raped and had become pregnant. Justice Muhammad Afzal Zullah recently inaugurated the Legal Aid Center at Islamabad, where he recounted that on being informed that several women convicted for zina are in jails, letters were sent that all cases of convictions by the Federal Shariat Court under the Zina' Ordinance were to be referred by the Jail Authorities with Petitions for leave to appeal to the Supreme Court. This was to ensure that there is no miscarriage of justice. Special Leave to Appeal is being given and bail granted in fit cases. This is a great example of Judicial Activism. In a recent Seminar in Karachi Judge M. Lasker, U.S. District Judge of the Southern District of New York related the case of Benjamin v. Malcolm, Superintendent of Jail, dealt by him. The plea was, of overcrowding of the jail (House of Detention). The judge ordered the Superintendent to reduce the jail population and set down the criteria for the release of few hundred men. This was severely criticised by some quarters including the Mayor but the positive effect of the public furore was that much needed funds for building new jails were granted. JAILS In Pakistan apart from overcrowding, the conditions in jails are atrocious. There are several under-trials. Many accused, especially women remain there from year to year rarely- being produced in Court. DELAYS The slow movement of the legal process of justice makes it appear that the wheels of justice stand still. Especially in cases in the High Court and Supreme Court where after filing a case it remains in cold storage for years to come -- we need many, many more judges at every level. There is not much wrong" with the system, except that adjournments should be made difficult with costs to opposite counsel. Legal Aid is very difficult in an atmosphere of delay. It is difficult for the lawyer and for the litigant without money to pursue a case for years and years. RURAL AREAS Legal Aid is much needed in rural areas. I feel, under the present system, the Bar Councils and Bar Associations are best suited to carry on this service. The PWLA has a project for legal literacy and legal aid to women in outreach areas through mobile van. We are looking for funding for this project. HUMAN RIGHTS Legal Aid Service is necessary for the enforcement of Human Rights. A number of people in Pakistan have become vociferous for the protection of Human Rights. It is one of the sub-topics at the Seminar to follow. I have touched on a number of topics as all these are to be discussed and dissected at the Seminar. We have some excellent brains among our participants and we hope they will give the time and concentration which will be required to bring forward practical recommendations for legal aid services in Pakistan. We feel elated that democracy has been restored. We look up to our Prime Minister, Mohtarma Benazir Bhutto to take bold action to meet the crying demands of the people of Pakistan, especially for making Court machinery quick and just, for improving the conditions in jails, for law reforms, especially the repeal of the Zina Ordinance and security for women and children from destitution and degradation, for the spread of Legal Aid Services for the poor and needy. We assure her of playing our part as a non-Governmental organisation of all support and co-operation. She being one of us, the women of Pakistan look up to her to set right the disadvantages that have piled upon women's lives over time and especially during the last decade. Women need awareness of their identity as full human beings, education and training, gainful employment and recognition of their unpaid work, family planning and health services, security as wives and mothers. ***