Legal aid is an important part of justice under the principle of equality before the law. Legal aid is necessary protect the rights of vulnerable population.” Article 9 Section 6 of the Constitution mandates the government to provide legal aid in Bhutan. The Prime Minister informed the National Council that the legal aid Standard Operating Protocol has been submitted to the cabinet. He informed that he saw a problem since the SOP provided that OAG will provide legal aid when OAG is a state prosecutor at the same time.” The Prime Minister’s observation is noteworthy and deserves careful analysis.

The Chairman of the Constitution drafting Committee noted “the right to free legal service is a constitutional right to ensure that all people, regardless of income, have access to justice. In Bhutan legal aid is not a new concept, it is already provided in the Civil and Criminal Procedure Code (CCPC) 2001 on the Command of Drugyel Zhipa.” Article 29 of the Constitution recognizes the Office of the Attorney General (OAG) to serve as the legal representative of the government. This objective is reiterated in the preamble and numerous provisions of the OAG Act, 2015. OAG acting as a public defender’s office may seriously affect the independence of both prosecutors and public defence counsels. The OAG Act also makes it clear that except for AG, other employees are under Royal Civil Service and also prohibits OAG from defending private citizens in litigation. For example, the Supreme Court of Argentina said the provinces’ General Prosecutor’s Offices also providing legal aid over decades showed ineffective criminal defences because they did not enjoy full independence.” Further, the United Nations Principles and Guidelines state that “legal aid providers should be able to carry out their work effectively, freely and independently without intimidation, hindrance, harassment or improper interference.”  It will be extremely difficult for OAG to balance these two opposite roles.

India enacted the Legal Services Authorities Act in 1987 and the National Legal Aid Authority provides legal services.  In the United Kingdom, “legal aid is a national program, funded by Parliament, that covers civil and criminal proceedings, family matters (including divorce), juveniles, and all levels of appeals. The National Legal Service’s legal aid solicitors provide the legal aid service. In the United States, the legal aid is funded by Legal Services Corporation and Lawyers Trust Accounts and is distributed to each independent non-profit legal aid organization that actually provides the legal aid.  In Australia, eight legal aid commissions implement the legal aid programs. The Singapore government provides legal services through the Legal Aid Bureau under the Ministry of Law. Even in China, the Ministry of Justice and local aid centers provide legal aid services.

These examples not only suggest the importance of having a separate, independent agency or authority to provide legal aid services but also the legal aid must be extended to all cases. However, in Bhutan, Section 34 of CCPC currently provides legal aid only in criminal cases.  Thus, Section 34 of CCPC also needs amendment because justice is important both in civil and criminal cases. Since the draft legal aid SOP has reached Cabinet, it is appropriate to consider these important aspects before it is approved by weighing the pros and cons of allowing OAG to serve as the office of a public defender at the same time as the state prosecutor.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.