Daily Times

A vast majority of citizens and non-citizens are excluded from access to justice in Pakistan. Overwhelming majority does not have financial provision or adequate legal representation in the courts. This is a substantive right of people under the Constitution that makes it obligatory on the state to provide inexpensive and expeditious justice and eliminate of all forms of exploitation. Legal aid, as an intervention from the state, is pivotal to equality before law.

The concept of modern structures of legal aid can be traced back to 1944 when in Britain, Lord Chancellor Viscount Simon appointed Rushcliffe Committee for giving lawful guidance to people and for provision of counsel to people on need basis. The recommendations it came up with, form the basis, of modern structures of legal aid throughout the world. The Committee concluded that legal aid is not a charity but is a right which the state has a duty to foster and protect. While proposing a nationwide system, cost of which was to be borne by the state, the Committee, reasoned that for the purposes of safe administration of justice, relationship of attorney and client should be maintained. In addition, the Committee in its report suggested that provision of assistance should not be limited to the lowest income group only but must also include persons who would not ordinarily be eligible for assistance.

At present, Pakistan has a two-pronged structure of legal aid. The Pakistan Bar Council Free Legal Aid Rules, 1999 were framed under the Legal Practitioners & Bar Councils Act, 1973 to provide “free legal aid to indigent litigants”. Pursuant to these rules, free legal aid committees were constituted at the federal, provincial and district level. Under the rules “any person desirous of free legal aid [submits] an application…to the appropriate Committee” which is then examined and processed. The funds are generated through allocation by the “Pakistan Bar Council, the grants sanctioned by any Government, Local or other body or authority and voluntary contributions made by the Bar Councils, Bar Associations, Advocates, any other Institution, Foundation, Trust, Organization or an individual.” A list of legal practitioners is maintained, who are then appointed, from case to case basis, and paid appropriate fee with a fixed ceiling for their professional services.

The test of any first rate justice system is how it treats its most vulnerable people. How we treat ours is downright reprehensible

On the other hand, the Government of Pakistan has established Rs. 1.5 billion Access to Justice Development Fund, with one window of investment earmarked for legal aid and empowerment. To be specific, 13.5% of the total fund is reserved for legal empowerment and legal aid. This money is funneled under the supervision of Law and Justice Commission of Pakistan regulating the distribution of funds under the mandate of the District Legal Empowerment Committee (C&F) Rules, 2011.

Under a District Legal Empowerment Fund, a deserving litigant, for protection of genuine legal rights or interests is provided assistance. A District Legal Empowerment Committee constituted by the Law and Justice Commission with the concurrence of the concerned High Court and Provincial Government, is composed of District & Sessions Judge, District Co-ordination Officer, Superintendent District Jail, President of the District Bar Association and a representative of the civil society. This composition is designed to include all the major actors of justice system.

The website of Law and Justice Commission of Pakistan also gives complete details of distribution and utilization of funds on case to case and region to region basis. Between 2012-2016, 59 % of the funds in Punjab, 91% in Sindh, 69% in Khyber Pakhtunkhwa and 95 % of the funds allocated to respective District Legal Empowerment Committees in Baluchistan, remained unspent.

The issue is not entirely of paucity of funds; more the merrier, but with large portions of allocated resources not consumed, the issue here is more of lack of resolve and will. And both the executive and bar councils are guilty. A good case in point is Islamabad; the capital! Here committees are dysfunctional, lawyers are appointed on ad hoc basis by the Courts, the Advocate General Office is uncertain of the funding source to pay honorarium to the defence lawyers and the Islamabad Bar Council and Association have not entertained the very idea of generating and reserving funds for legal aid or taken any steps for spreading awareness.

An equal opportunity before law must assume an equal opportunity to receive the advice and guidance of the expert of law, the lawyer with credible standing, and an equal opportunity to enter the halls of justice without fear of financial resources to incur the expenses of courts. The test of any first rate justice system is how it treats its most vulnerable people. How we treat ours is downright reprehensible. That we fall short of our cherished ideals would be conceded by most, if not all, of the members of the bar and the bench.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn