Helping the poor access justice

What happens when an accused is brought before the magistrate who sends him/her to physical or judicial custody? S/he faces torture or physical punishment while the investigation is being conducted. On top of it, the burden of social stigma associated with being arrested and accused of a crime persists.

When the challan is finally presented in the trial court, they are uncertain about how to navigate the situation. What to do, what to say? Whether or not they are innocent or guilty, one thing is certain: these people are entitled to due process.

This is why free legal aid is a welfare provision and a legal right by the state to people who can otherwise not afford counsel and redressal from the legal system. Free legal aid is an essential element of a fair, humane and efficient criminal justice system (CJS). It is a key element of access to justice.

The right to legal aid has been enshrined in the constitution under Article 4 (due process), Article 9 (no person shall be deprived of life or liberty save in accordance with law), Article 10-A (right to fair trial), Article 25 (equality before the law) and Article 37(d) (inexpensive and expeditious justice).

An efficient legal aid system can significantly help improve access of vulnerable sections to justice and reduce legal exclusion. According to the 2022 report by the World Justice Project, Pakistan stands at 97/140 on the criminal justice factor whereas it ranks at 125/140 on the civil justice factor. The country ranks at 123/140 on the fundamental rights factor.

Overall, the country ranks at 129/140 on the rule of law index. Additionally, Pakistan ranks 142 out of 146 countries in the World Economic Forums’ global gender gap report of 2023, highlighting the high level of vulnerability and marginalization faced by women litigants.

As of 2023, poverty is expected to reach 37.2 per cent in Pakistan, further exacerbating the situation and making it even more difficult for marginalized individuals to afford quality legal aid and advice.

With the intent to fulfil the constitutional obligation of the state towards citizen’s right to free legal aid and assistance, the parliament of Pakistan enacted the Legal Aid and Justice Authority Act (LAJA) 2020 to provide legal aid to the marginalized and vulnerable sections of society.

LAJA is applicable across Pakistan. According to this law, legal, financial and other assistance for the purpose of safeguarding access to justice to the poor and vulnerable is to be conducted through the Legal Aid and Justice Authority (LAJA) and its offices in criminal cases.

However, the implementation of this Act has only been partial, due to which many litigants are unable to access justice. This is true, especially at the district levels. Justice must be impartial, and everyone must have equal access to justice.

Other than LAJA, federal-, provincial-, divisional- and district-level legal aid mechanisms under various national and provincial legislations, policies and executive orders have also been established in each province. These include federal legislations including Suit by Pauper under Order 33 of Code of Civil Procedure, Section 161A of the Code of Criminal Procedure 1898: Legal Representation of Victim of Rape, Etc, the District Legal Empowerment Committee (Constitution & Functions) Rules 2011, Pakistan Bar Council Free Legal Aid Rules 1999, Legal assistance under Section 3 of the Juvenile Justice System Act 2018 (JJSA) for children in conflict and contact with the law.

In line with the 18th Amendment, provincial legal aid agencies/authorities have also been established. In Punjab, the Punjab Legal Aid Agency was established on October 29, 2019 under the Punjab Legal Aid Act 2018. Similarly, the Khyber Pakhtunkhwa Legal Aid Act 2019 was enacted in Khyber Pakhtunkhwa. The laws are similar in nature. They provide for a provincial legal aid agency and stipulate the functions for the agency.

In Sindh, several legal aid mechanisms/procedures/windows have been established at the provincial, divisional and district level. However, the mapping of legal aid mechanisms in Sindh conducted by the Sindh Human Rights Commission revealed that diverse legal aid mechanisms are scattered across the province for individuals unable to afford legal representation.

Three main and functioning committees have been formed by the Sindh government to provide citizens with free legal aid and assistance. A steering committee for legal aid and assistance to the vulnerable and marginalized segments of society in Sindh has been formed under the Sindh government’s human rights department (HRD).

Additionally, two committees have been formed under the home department for free legal aid and assistance: the provincial subcommittee on ‘diyat’, ‘arsh’ and ‘daman’ (a federal government-led initiative) and the committee for the welfare of prisoners (CWP), a Sindh government-led initiative.

The study provides key recommendations for the effective utilization of the scattered legal aid mechanisms for coordination among the various mechanisms and increased awareness of their existence and functions. One of the key recommendations is to establish a provincial legal aid agency/authority to ensure a well-coordinated and efficient free legal aid mechanism in the province of Sindh.

This is the need of the hour in Sindh. With its 55.69 million population, Sindh stands as the second largest province by population in Pakistan. The population of Sindh increased by 2.57 per cent in 2023. According to the Multiple Indicator Cluster Survey (MICS) for 2018-2019, the rural areas of Sindh face more multi-dimensional deprivation than the urban areas, with 24.8 per cent of the urban population and 71.4 per cent of the rural population of Sindh being multi-dimensionally poor.

Therefore, a considerable section of the population in Sindh is unable to access justice through the formal legal system mainly due to lack of financial resources and awareness regarding the scattered legal aid mechanisms across the country. Having a provincial legal aid authority will ensure that the scattered legal aid mechanism is provided to citizens on an equal basis, without discrimination across the province and at the district levels.

This is also the spirit of Article 7 of the Universal Declaration of Human Rights, which states that: “All are equal before the law and are entitled without any discrimination to equal protection of the law.’’

The writer is a barrister. She tweets/posts @RidaT95 and can be reached at: ridaatahir@gmail.com