Whether ‘legal aid’ is a constitutional right?

Rajib Deb : 

Once a dear senior brother over phone has thrown this subjected question and sought for my opinion. The instant question has sprinkled at my eyes and I got a little bit strange at hearing such kind of generalised question. He informs that there is an opinion “legal aid is a constitutional right.” Though he is of the same view which I believe. To find out an authentic answer, I have travelled the international documents on human rights and the domestic laws including the constitution.

My travelling at the International arena says that the concept of legal aid has been recognised in international documents on human right in UDHR, ICCPR, Commonwealth of independent states convention, Arab charter, African charter, American convention all of which set out specific obligations of states to provide state-funded counsel for indigent persons. My travelling at the domestic level says that the concept of legal aid has been shaped as fundamental character towards the achievement of a socialist society as mentioned in our constitution. It prescribes cluster of rights which have come into being as “constitutional rights” embodied from article 8 to 44 under the chapter of “Fundenental principles of state policy” and “Fundamental rights”. Again our enactments Crpc, CPC, the Legal Remembrance’s Manual, 1960, Legal Aid Act of 2000, regulation of 2011, rules of 2014 and 2015, regilation of 2015 and 2016 prescribe assisstance by pleader at the cost of the state to the persons appropriate. The clear concept as adopted in all these international documents and domestic laws including the constitution is that legal aid is meant a mechanism of providing legal advise and legal assistance to people 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 also for various socio-economic constrains.

Now come to a closer view in respect of nature of legal aid in line with the constitutional rights with a view to examining as to whether legal aid is a constitutional right – There is no explicit and unaboguous expression in any article of the constitution on legal aid. b) Out of the Constitutional rights, the concept of legal aid is found in premble when it says about a socialist society, art 14 when it says about peasant and workers and backward section of the people, art 27 when it says about equality before law and equal protection of law, art 31 when it says about proper procedure of law, art 33 when it says about consultation wirh lawyer and defence, art 35 when it says about speedy and fair trial. Unless legal aid could be claimed as of right it cannot be said that all the principles as embodied in abovementioned articles have been achieved. So legal aid as being adopted in constitution as principles, it shall come under the consideration of “right” not “constitutional right”. c) Constitutional rights don’t provide any financial range as a quality to get its benifit but legal aid prescribes so for the persons will be entitled to get its benifit. For an example, all Bangladeshi are entitled to constitutional rights but the persons whose financial income is limited to a range prescribed thereby are entitled to legal aid. d) Constitutional rights are enforced by court of law but legal aid isnt enforced but executed by the institution created thereof, legal aid office. To be specific more, in violation of any constitutional right or any refusal to this right, the remedy is to have access to the HCD by virtue of art 102 of the constitution under the head of writ but refusal to legal aid cannot be entertained by any court of law except mere complaint to the district legal aid Committee. e) Legal aid is one of the human rights (civil and political rights) recognised under the International documents but all human rights have not been incorporated in our constitution where legal aid is one of them. f) To be mentioned, no constitutional right has prescribed any curtailment for the persons to whom it shall apply or to whom not. But legal aid is subject to curtailment because it isn’t applicable to a certain class of people exceeding to a specific amount of money. g) Any one can argue that if obligation of the state to make law in respect of public employment or advamcement 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, who are qualified.

In view of the findings mentioned above, it is to opine that legal aid isn’t a constitutional right but a right created under enactment.It is the result of the government responsibility – it is a government operated legal system of which fundamental character has got reflection over the acts, rules, regulation, bye laws.To be comprehensive, it is a gateway to have access to justice. It is a vital and essential part of the principles of Rule of Law and administration of justice.

Writer:  Judicial Magistrate, Senior Judicial Magistrate Court, Cox’s Bazar.