Reflections on the World Day for International Justice (17 July 2022)
To many, the idea of legal aid might seem like something of a luxury; to others, it might come across as impractical that the state should spend public resources on helping ‘criminals’ and the most vulnerable.
These perceptions are particularly prevalent in resource-constrained countries. However, experience from around the globe suggests that legal aid is indispensable to our constitutional right to a fair trial, and it also helps make legal processes move faster and more efficiently, thereby saving valuable court time and resources.
The 2016 UNODC/UNDP global study defines legal aid as “legal advice, assistance and/or representation at little or no cost to the person designated as entitled to it”, echoing the definition in the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. The Guidelines, adopted by the UN Member States, aim to support countries with the fundamental principles for establishing criminal legal aid systems.
Legal aid enables the society’s poor and marginalized to better understand and exercise their rights, resolve their disputes peacefully, and seek remedies for grievances and thereby enjoy equal protection of the law. Effective legal aid also improves the performance of justice systems, including law enforcement, simultaneously increasing accountability and respect for the rule of law – all of which are integral to sustainable development.
As noted in Bhutan’s Judiciary Strategic Plan, during the initial phase of the Judiciary, in addition to its core functions, the judicial officers often play other substantial roles as an investigator, prosecutor, defense counsel, mediator, and even legislator. It further notes that there remains a popular misconception that the Judiciary is solely responsible for the dispensation of justice. These observations are real and call for the urgent need to establish sustainable and efficient legal aid services. The Courts registered 1158 criminal cases in 2019. Out of which, 935 were offences (83%) that may entail a prison term of more than one year if convicted. Given the consequences of imprisonment for the livelihoods and liberty of the accused and public resource requirements, there is a need to extend legal aid services to the accused in need.
None of what has been said so far is new to Bhutan since the Civil and Criminal Procedure Code in 2001 and the Constitution in 2008 were fully aware of the urgency to introduce legal aid in the Bhutanese justice system. The Principles and Philosophies on the Constitution of Bhutan explain that legal aid upholds the rule of law and stabilizes society by enabling the poor to regularly seek redress of their grievances through formal legal processes. It also proposes that the right to free legal service is a constitutional right of every accused person who is unable to engage a lawyer to ensure that all people, regardless of income, have access to justice, which is one of the indispensable components of a fair trial.
During the height of the COVID-19 pandemic, many vulnerable men and women experienced challenges that required legal interventions. Faced with the urgency for legal aid services, UNDP, NCWC and RENEW came together to initiate an experiment to extend legal aid services to the most deserving women. Contrary to the strong belief that no lawyers would be willing to provide services at a low-bono rate, many have come forward and rendered their professional services. One of the beneficiaries described the program as a “bright light in the darkness, and a helping hand during the worst period of her life”. In a conversation with persons with disabilities who had previously come into contact with the law, one of the major obstacles in pursuit of justice was the limited or lack of legal knowledge and ability to adequately represent a case before the court.
In a much-awaited development, Bhutan is on the cusp of establishing a national legal aid system. As a country that has embraced the values of Gross National Happiness and compassion towards the vulnerable, this will go a long way in ensuring no one is left behind.
Based on UNDP’s experience in supporting the establishment of national legal aid systems around the world, I’d like to offer a few thoughts. In many instances, there is a fear that the legal aid systems might be abused by those undeserving, and that there might be intolerable selection errors. Identifying the deserving individuals who meet the criteria of “indigent people” can indeed be challenging, and there is no perfect formula. As is the case with all social safety nets, there will always be selection errors, but the socio-economic cost of not serving anyone is much greater. One consolation is that there is an in-built natural selection process in that those who can afford legal services will most likely engage lawyers themselves. In societies with a strong social fabric, local communities may be an asset to provide knowledge on who really deserves legal aid because the conventional ideas of assets and means are very much context specific.
As proven by the earlier experimentation with RENEW and NCWC, a whole-of-society approach will allow for sustainable legal aid service systems. We have worked closely with lawyers from CSOs and firms who were willing to offer pro-bono or low-bono services and law school students who were eager to build their experiences and legal awareness support. There is an abundance of goodwill out there.
With regards to concerns around resource constraints, priority can be given to criminal cases and the most vulnerable women and children. In other countries, working with para-legal officials and running mock courts have drastically reduced the burden on the limited budget of the governments.
As for the belief that legal aid helps ‘criminals’, we must bear in mind that under our laws, a person must always be presumed innocent until proven guilty beyond a reasonable doubt. By affording the accused person a fair chance to challenge the charges, and to present evidence that might give rise to reasonable doubt, we will become more confident that the people convicted of criminal offences in our courts really are guilty as charged. In other words, legal aid helps us minimise the risk of any miscarriage of justice.
For the services to be utilized effectively, they must be designed from the user perspective, applying design thinking so that they will be accessible to those who are faced with compounded challenges and vulnerabilities. User-friendliness (where the service centre is situated, how it is set up, how services can be accessed, for example) and timeliness are two golden qualities of effective legal aid service systems.
Here in Bhutan, we have a lot to celebrate and look forward to on this year’s World Day for International Justice, marked annually on 17 July. We would like to sincerely commend the decision to establish the Legal Aid Center and those engaged in establishing the country’s first legal aid service systems. UNDP stands ready to be a humble partner in this journey.
Resident Representative , UNDP Bhutan