Access to Justice – Legal aid is not a favour -“It is a Basic Human Right”-

By Sarath Wijesinghe

Justice and Equality

(July 25, Colombo, Sri Lanka Guardian) Citizen is entitled to justice and fair play at an affordable price with easy access to. Legal profession has been an honourable profession and was practiced as a service with no remuneration. Laws delays and cost of litigation is common worldwide. Access to justice and due process are basic requirements in an ideal Democratic Society without which law of the jungle and survival of the fittest will take control over. Law must be simple, accessible and approachable to the citizen at an affordable price.

Justice delayed is Justice denied and today all the jurisdictions world wide is attempting to control this development which retards the confidence of the citizen on the society which leads to anarchy. In other jurisdictions, especially in the UK USA and the west modern technology and developments are being used to attach laws delays. Fax, Email, electronic media and modern developments are used in delivery of legal services. Pleadings could reach courts via fax and email and the court staffs are used to receive messages of the public via telephone and other ways. Sri Lanka is more traditional and stiff than the west from whom our system is inherited. It is time for us to follow good things of modern developments. According to Thomas Hobbs “Justice is created by public enforceable authorization rule and injustice is whatever those rules forbid”. Government must respect all the legal rights that are owed to a person according to the law of the land which is the basis of rule of law. Judges will define and guarantee fundamental fairness and justification of liberty. Strong Bar, an independent judiciary and effective legal aid schemes are main pre requisites for the delivery of justice in an ideal democratic society. Direct and indirect legal aid schemes or modes of assistance to the litigants have been provided to the public by the governments and the professions in their own interest in order to avoid break down of the society. The interview of the new Chief Justice with a special correspondence in the Sunday observer is remarkable revolutionary modern and timely. We suggest His Lordship Chief Justice to call the Minister of Justice, Secretary, the Attorney General, Legal Draftsman, One representative from each court, representatives of the BASL, Legal, Law reforms Commission Legal Aid aad few concerned members of the Bar in order to explore the mode and possibilities of the implementation of the propositions envisaged in the interview which is extra ordinary and progressive. Views of the public could be felt via TV or media debates and discussions and the people participation is going to be overwhelming. The Nation is in need of the changes envisaged in the Interview and his previous policy papers and it is the duty of the BASL and the legal professionals to back the implementation of his proposals.

Challenges to New Minister of Justice

The opportunity is ideal for the new Justice Minister to run a parallel scheme in line with the programme launched by His Lordship Asoka de Silva with his vast experience local and abroad. Ministry can provide the financial logistic and other support in the implementation of the proposed schemes especially in the areas of delivery of law including legal aid and the progressive and innovative concepts such as Citizens Advice Bureaux. We urge the Minister to take up the challenge and commence the programme without delay.

Legal system

Our legal system is based on a mixture of English, Roman Dutch, and Personnel laws in addition to latest developments introductions on law and procedure which obviously is complicated. Hardly any changes have taken place on the court system, procedure, legal education and the law for a long period when the world is changing so fast. It is time we keep pace with the modern world developments and it is time for us to re think on legal education, due process and the entire structure of legal administration. Delivery of law and Legal aid must be compatible with the other jurisdictions and needs of the fast developing society and the changing world. In Sri Lanka there are only two main legal aid providers namely the legal Aid Commission and Bar Association. Lawyer is a pre requisite to for delivery of law as only lawyers are authorised to practice the legal profession, other than the personal representation of litigants. Bar Association is the only statutory body for lawyers and their responsibility is enormous in maintaining the social balance of the nation without which citizen will loose faith with the system. It is time the Law College take this challenge in the initial stages of law studies and NGO’s should be enlarged to initiate Legal Aid Clinics.

Citizen Advice Bureaux (CABx)

This is a concept prevalent in the UK and Europe in support of Legal Aid and to help citizens in any area on any help and advice. The centres are funded and managed by the local authorities or NGO’s or local organisations. This is a very successful network which has spread in UK and Europe which is an ideal model for us to follow. Legal Aid Commission the Bar Association and the Ministry of Justice can work on this matter and obviously the Judiciary can play an adversary and supervisory role. British Government will be happy help us to implement this concept as it is originated in the Europe. If we follow the British Model in administration, Law, Procedure international law relations and many areas, there is no reason why we should import good concepts with necessary adoption to suit us.

Legal Aid is not a favour- It is a basic “Human Right”

Universal declaration of Human Rights states “all are equal before the law and are entitled without any discrimination to equal protection of the law” and Article 12(1) of the Constitution states as follows,” All persons are equal before the law and entitled to equal protection of the law. How would the citizen exercise these rights without easy access to legal process which is expensive? Lord Denning while observing that legal aid is a system of governance for those who could not afford to pay for advice and representation said” The greatest revelation in the law since the post war has been the evolution of the mechanism of the system for legal aid. The most developed legal aid system is found in the United Kingdom where the government spends billions of pounds for the legal aid scheme which is in an advanced plane. Every citizen who is entitled to legal aid is entitled to the services of any lawyer of his choice which includes the services of even a QC where necessary. Legal Aid Lawyers are well paid in the UK for legal aid work and the litigants are happy and contended with their services thereby the society is satisfied with income support, Housing benefits and legal aid which has retarded social uprisings. In India article 39(A) provides an effective mechanism of legal aid programme. Indian, and Commonwealth experiences and jurisdictions show the need and the interest shown in the sphere of delivery of legal aid in order to avoid drastic changes in the society. The best model for us to follow is the British Model our system too is modelled. The trouble is we have fewer funds. But if the Bench Bar and Executive get together ways and means could be implemented to overcome this difficulty and it is in the interest of all the citizens we should improve the legal aid as when the confidence of the delivery of legal aid is lost citizens will resort of law of the jungle which is disastrous to everybody.

Legal Aid and Professional Bodies

Legal aid was managed by Law Society and Bar Council and regularised by act no 27 of 1978 after the amalgamation of the two professions in 1974. It is an independent statutory organisation set up to give free legal aid to underprivileged section of the society. It had a humble but an active and vibrant during 1986/7/8, where the countrywide organised network was active with the government assistance of Rs 150,000.00. The writer manages the Scheme successfully for two years with a merger resources Currently it is heavily funded by the state and foreign donations and to their credit running 72 branches which still is grossly inadequate due to the unprecedented demand by the public for help. Mr S.S. Wijeratna and Justice Hector Yapa should be credited for the excellent management of the scheme though insufficient to meet the demand for Legal Aid Foundation run by the Bar Association is inefficient and ineffective and needs new blood and experienced hands with a vision and exposure as it is still in the primitive stages on the area of access to justice via legal aid. It is the duty of the Bar Association to organise around 9000 lawyers as active members of the team. It is a pity that the Bar Association is struggling to run the Legal Aid foundation for want of funds. It is the duty of every lawyer to work hand in hand with the Bar Association in the development and functioning of the delivery of legal aid. Bar Association should learn from the previous glory and the good work by the Legal Aid commission and improve the Legal aid foundation which is the responsibility of the legal profession in the interest of the lawyers and the Nation. If the public loose faith in the legal system due to delay cost and corruption, in delivery of justice, the public will take the law into their hands and as a result it is the legal profession and the public will be the main casualty.

Way forward

It is duty of the Bar to take steps in the delivery of legal aid with the help of the Executive and the Judiciary. Citizens are grateful to the Bar and Judiciary in delivery of free legal aid which is unique to the legal profession. In other professions there is no organised professional help for needy. Duty Solicitor System prevalent in the United Kingdom is an ideal system for us to follow. Every Court has duty solicitors appointed and in police stations lawyers to assist litigants at any time of the day funded by legal aid. Though we are short of funds other devices could be adopted to meet the demand of the citizen in delivery of legal aid. State may find it difficult to find the scheme, but it is time the BASL take the challenge to launch in voluntary basis and those who are involved in “Pro Bono” ( free legal aid) matters can be looked after otherwise as in the United Kingdom, where such services are considered for judicial appointments, promotions and reorganization of services such as Honorary appointments and designations by the State, Profession and international bodies.

The writer, former Secretary of the Bar Association and Administrator of the Legal Aid Commission- He can be reached at sarath8@hotmail.com

-Sri Lanka Guardian