… applicants will have to qualify for both means and merits test

Rinzin Wangchuk

Those who cannot afford to hire lawyers or legal advisors can now avail of legal aid services both in civil and criminal cases with funding support from the State.

The service will be provided by the Legal Aid Center established following the Royal Command on October 19 at Bhutan National Legal Institute (BNLI) which is housed in the Supreme Court complex at Hejo.

The President of BNLI, Her Royal Highness Princess Sonam Dechan Wangchuck, and Chief Justice Chogyal Dago Rigdzin attended the inaugural ceremony.  Along with the inauguration of the Center, the Legal Aid Inception Document and the Legal Aid Rules 2022 were launched.

The Center is expected to further strengthen the rule of law and the justice system by enabling all the people to access the courts and the legal process as enshrined in Article 9.6 of the Constitution.

According to the legal aid inception document (LAID), legal aid is indispensable, especially for indigent persons, to have fair and full access to the justice system.

“With the establishment of the Center, legal aid services will be provided in an organized, systematic, and purposeful manner to best serve the needs of the people,” it stated.

Legal aid service?

Legal aid is a provision of assistance to the neediest, who cannot afford legal services. Those eligible often do not understand the legal processes and complexities of the law and lack equitable access to legal counsel, which affects the administration of justice.

In such a situation, according to LAID, legal aid can help the needy to better understand legal and court processes enabling the exercise of their rights to settle disputes, seek remedies for grievances, and enjoy equal protection of the law. “In essence, legal aid is aimed at minimizing the gap created by economic and social disparity,” stated LAID.

Legal aid services the Center will provide include legal advice, assistance, and representation to the indigent person at the expense of the State.

Who is eligible?

One of the important tasks of the center is to select indigents through clear criteria. Eligibility criteria will be determined through tests aimed at improving the “quality of service” and fulfilling the “genuine legal needs” of indigent persons.

An indigent person means a person who cannot provide the necessities of life (food, clothing, decent shelter) for himself/herself and one without sufficient means to afford a lawyer.

All applicants must qualify for means test and merits test for all types of legal aid services both civil and criminal cases. Applications for legal aid may be submitted directly to the Center or channelled through relevant institutions.

For the means test, the Center will consider both household income and disposable capital to determine the applicant’s financial capacity. The income threshold is based on the per capita poverty line set by the National Statistics Bureau, which is published every five years.

Under the merits test, the Center will assess information and documents relating to the applicant’s case to understand the applicant’s legal problem and assess whether or not it is the type of issue theCenter may grant legal aid.

Types of legal aid services

In civil cases, legal aid services will only include legal advice and assistance, with legal representation being granted only if required.

Legal assistance includes simple tasks such as filling out judicial forms and other documents and submission of applications mostly in Dzongkha. Most litigants have difficulty finding suitable individuals to draft petitions and other court documents, the document stated.

Legal representation means representing a legal aid recipient before a court, and the one representing the case will provide both legal advice and legal assistance.  In addition to three services, the centre will also provide legal information and education.

Whereas, in criminal cases, all three types of legal services will be available. For now, according to BNLI, legal aid services for criminal cases will only be available to indigent accused charged with offences that are a felony in nature. The services will also be available to victims and vulnerable persons who require legal advice and assistance.

However, children in conflict with the law (CICL) and persons with permanent physical or mental and social disabilities are provided legal advice and assistance regardless of his or her financial capacity, when the interest of justice so requires.

Service provider 

Legal aid will depend mostly on the services of private lawyers and paralegals registered with the Bar Council of Bhutan. Based on the agreement with the Bar Council, the Center will engage private lawyers and paralegals to provide legal aid services. There are 119 private lawyers registered with the Bar Council today.

The Center may also refer the case to private law firms through the Bar Council. The service remuneration will be determined on a case-by-case basis, which shall not exceed the maximum amount set by the Center.

The Bar Council will assist the Center in monitoring services and take necessary actions in cases where service providers violate their duties and responsibilities. The Council will also act as a supervisory body to ensure the quality of services.

In the absence of a formal legislative framework, the Center will be guided by the Legal Aid Rules 2022. The rules cover all aspects related to the delivery of legal aid services such as the determination of eligibility criteria, application and review process, assignment of service providers, and service standards.

The Center

Established with financial support from the government and the United Nations Development Programme (UNDP), the Center will coordinate and administer legal aid. It will be manned by a Drangpon Rabjam or the chief legal officer with two bench clerks and one supporting staff. As an interim measure, the staff and lawyers of the BNLI will provide assistance and support, on a rotational basis.

The need for legal aid was foreseen decades ago under the Civil and Criminal Procedure Code of Bhutan 2001, which emphasizes that an indigent accused be provided with legal aid for one’s defence in the interest of justice. The Constitution also provides the basis for legal aid.

However, due to various constraints including the absence of a dedicated system of financial and human resources allocation, and more so due to the absence of a clear legislative framework and designated authority to administer legal aid services, the provision of legal aid did not materialize.

The National Council during the last Parliament session questioned the Prime Minister on the status of the legal aid service. Lyonchhen had said that he would hold the submission of the legal aid draft to the Lhengye Zhungtshog until NC completes the deliberation on Civil Liability Bill.