Newsletter ::.
Legal Aid in Bangladesh (2010-06-29)
Legal Aid in Bangladesh
Ian Morrison, director, Bangladesh Legal Aid Reform Project
These are some brief reflections on the work with which I have been engaged for the past six years, a Canadian funded development project supporting a government funded legal aid system in Bangladesh.
Government legal aid in Bangladesh has notionally existed since the late 1990s. The current version was enacted in 2001 as the Legal Aid Services Act 2000 (LASA). It is a judicare program, delivered at the District level (Bangladesh is divided into 64 Districts for administrative purposes) through a committee chaired by the District and Sessions judge (the highest position in the lower judiciary at the District level), under the central authority of a semi-autonomous body corporate, the National Legal Aid Organization (NLASO). Legal aid is theoretically available for all sorts of criminal, family and civil matters and is defined to include legal advice, legal representation and (since 2006 amendments) limited ADR services in civil matters.
The “project” is a bilateral aid project funded by the Canadian International Development Agency, and delivered by the Canadian Bar Association and IBM Canada. The Project has been working in Bangladesh since 2003, and is currently in an extension phase scheduled to end in March 2011. The project goal in its current phase is to “improve access to justice for the indigent in Bangladesh through more effective legal aid mechanisms”, in particular to build capacity of the government’s own legal aid program.
The challenges to achieving this goal are considerable. Although developing quickly, Bangladesh lags far behind the regional Asian economic powerhouses, and is still one of world’s poorest and most overcrowded countries. Government is plagued by rampant corruption (Bangladesh topped Transparency International’s rankings of world’s most corrupt countries for years), nepotism and profound structural inefficiencies, lagging far behind the more vigorous private sector and civil society. The country’s bureaucratic shortcomings were summarized two years ago by the Country Director of the Asian Development Bank, including
...the pyramid bureaucratic structure and its archaic systems and procedures inherited from the colonial days characterised by inefficiency, centralisation, lack of delegation and job description; too many tiers in the decision making process; archaic filing and noting system and lack of e-governance; [and] poor pay structure...
The legal system itself is generally acknowledged by serious observers as a colonial hangover which has not changed fundamentally since its origins as a tool of imperial control. The court system, particularly the lower tiers, is badly underfunded even by regional standards and hugely backlogged on both the criminal and civil sides; its procedures would be more immediately recognizable to Charles Dickens than to most first world lawyers. The police are notoriously corrupt and subject to routine political interference. The Bar is politically polarized and overall competency standards are very low. It is not quite true, as most people will assert, that there are no honest judges, lawyers or court staff, but it is true enough for the perception to be hugely corrosive to the legitimacy of the legal system. In short, while lack of access to lawyers, legal advice and legal information are a barrier to access to justice in Bangladesh, the problem of “justice” goes far deeper.
The long and winding road
Although the legislative framework has existed since 2001, the government legal aid scheme is still very much in its infancy. Shortly after LASA was enacted, the sponsor Awami League government lost national elections. The successor government talked much about legal aid but did little about it; the government never established the central authority envisaged by the legislation , nor did it choose to appoint any full time staff. “Directorship” of the NLASO was held as a part-time title by a series of Law Ministry functionaries, who were not relieved of any other duties in recognition of the post. The allocated legal aid fund was disbursed to Districts, but without any unaccountably (or any particular rhyme or reason, to an outsider). Things slowed even more when, in late 2006, the military ousted the government during a political crisis and replaced it with an appointed “Caretaker Government”, which ruled until elections were again held at the end of 2008 and the Awami League again took power in an electoral landslide.
With no legal aid staff or offices at the national or District levels, few people had even heard of the program. Indeed, until many judges were unaware of the provisions of LASA. For poor justice seekers who learned of the program, the application process (which essentially required the applicant to apply directly to the chief judicial officer of the District) was intimidating and often completely beyond reach. Most legal aid cases came as referrals by jailers for unrepresented inmates, but this too was a haphazard process. Where legal aid was granted, services were often never provided or additional fees were demanded by lawyers. Although there were honourable exceptions amongst some motivated judicial officers and lawyers who made efforts from time to time to use the legal aid fund, there were neither incentives nor mechanisms to move these beyond the level of individual initiative. As late as 2008-2009, only about 25% of the national legal aid fund was actually spent. The shortcomings of the system were catalogued quite exhaustively by, inter alia, the World Bank (in national review study done in collaboration with the Project), NGOs and external donor-funded investigation missions. However, none led to any significant movement by government.
One exception to this pattern was in District-level collaborations between the Project and the government program. With no action at the national level, the Project focused on local delivery mechanisms, funding legal aid offices in two pilot Districts based on community based legal needs assessments, and a “duty counsel” program in the Dhaka criminal courts. The goal was to develop and test models that could ultimately be replicated nationally if government commitment ever developed. As legal aid initiatives, the project interventions were successful. By 2008, the pilot Districts had well-known and accessible offices, easy to locate for poor justice seekers (confirmed through tests using a person posing as a justice seeker looking for help). Applications had more than doubled, and the number and percentage of women receiving legal aid increased greatly. Processing time for cases was greatly reduced, quality standards for legal services were set and monitored, and panel lawyers received training, including gender training. More lawyers participated in legal aid (including a higher percentage of women lawyers). In the pilot Districts, government legal aid collaborated with NGO services with mutual referrals and supports. The possibility of delivering legal aid services to an acceptable standard through the government legal aid mechanism was clearly demonstrated.
However, at the end of the day, these pilot Districts remained orphans within the system, operating in the vacuum of national commitment and having little influence on other Districts, where no resources were available to replicate the model. By late 2008, the prospects for further government cooperation seemed so dim that the Canadian International Development Agency ordered the Project closed, and all local operations were wrapped up – just weeks before the newly re-elected AL government signalled a new commitment to developing legal aid. After a brief interim, the project resumed full in-country operations in July 2009.
The new commitment included the first-ever appointment of a full-time national Director for the NLASO (an experienced senior judicial officer), a promise to establish and staff a national office with new operational and program funding (on top of the national legal aid fund). With a revived partnership, the Project began a roll-out to further test the model, which now operates in seven pilot Districts. This is currently in progress – slow progress in many ways, but when none of the basic standards of rule of law or competent administration can be taken for granted, the simplest matters can present unanticipated problems – such as requesting assignment of a single clerk from court staff in a system where the same personnel may make more in a day from “speedy money” than their official monthly salary and refuse to work in a position with no extra income potential. Still progress is being made. Most encouraging of all is that with the small resources made available through Project support, some of the pilot Districts are introducing their own initiatives to improve the effectiveness of legal aid, beyond those suggested or encouraged through the project.
One step forward and …
The prospects for government legal aid services in Bangladesh are unclear. In the last ILAG newsletter, Roger Smith summarized the Cappelletti and Garth model of the three historical “waves” of the access to justice movement in the rich West. This is a standard organizing perspective for legal aid in the developed west, but in Bangladesh the waves metaphor is more of a circus mirror reflection: distorted and sometimes inverted. Government legal aid is dwarfed by – and to some extent a pawn of – far larger and richer NGO legal aid provision. Driven by donor interests and priorities, “legal empowerment” has been the dominant discourse of access to justice from the start, while the more mundane business of providing lawyers for the unrepresented as a basic legal and constitutional right remains in its infancy.
The government legal aid program currently has momentum and a reasonable level of political commitment. However, it does not yet have a clearly articulated and locally owned systemic vision for legal aid, let alone a clear plan for how to get there, once “there” is defined. There is no systemic commitment to access to justice in crucial places, including the judiciary. The dangers that an active legal aid system would pose in a system dominated by rent-seeking are considerable and the warning signs of resistance are already evident. Even amongst stakeholders of goodwill, the difficulties of trying to make a legal aid system that works on even a modest level are huge inside the context of a larger system that is “broke” in both senses of the word. In the words of one of our project staff lawyers, “I have the voluminous feeling to work more for the deprived people but am hurdled by red tapism.”
Traditionally, the big bilateral and multilateral donors have ignored government legal aid in favour of funding to a huge array of NGO legal services, mostly although not entirely focused on public awareness and mediation mechanisms outside the dysfunctional government system, with some components of representation and public interest litigation. Given experience with the program to date and the practical realities of Bangladesh, the chances of institutionalizing and sustaining the program are very much linked to the prospects of future donor involvement. This is needed not to fund legal aid per se, but to provide technical assistance and exposure to a wider range of legal aid options and practices than has yet penetrated the still insular thinking of the government system. In a “blue skies” vision of access to justice in Bangladesh, government/NGO collaboration on agreed priorities could greatly magnify the effectiveness of current spending on the two areas separately.
Is the effort to support further development worth it? It is far easier and more immediately rewarding to work with NGOs, who have mastered the discourse of access to justice that donors want to hear, who can produce results fairly quickly and who can provide a more holistic service approach than will ever be possible under government legal aid. Nevertheless, the value of this approach in the long term must be questioned. Despite huge budgets (relatively speaking), legal aid NGOs still do not provide coverage to more than about one third of the country, and not always then to the most needy. Although NGOs are all about legal empowerment, rights-based approaches, and the other fashionable trends of modern access to justice, at the end of the day NGOs, no matter how good their work, are not politically accountable and are not inside the system. Legal aid from NGOs cannot be claimed as legal and constitutional right, and when and if donor attention is distracted (as it invariably is at some point), large service edifices will quickly crash. This has in fact happened more than once in Bangladesh. If the current struggle within Bangladesh to strengthen rule of law as a component of democratic practice is to succeed – and it is certainly not a sure thing – then access to justice must be pushed as a value of the legal system itself and government itself must accept its proper responsibility to ensure this.