The criminal justice system in Pakistan is known to be faulty, exploitive, and inequitable. Compound this with a low conviction rate, between three and seven percent, at best, and what one has is a recipe for chaos, as is being witnessed in the country today. The investigators are poorly trained and lack access to basic data and modern investigation tools; the Judiciary and prosecution are overburdened, with seemingly insurmountable backlog of cases. If such a system is also devoid of free legal aid, it is nothing but utterly cruel.
Legal aid is an essential element of a fair, humane, and efficient criminal justice system that is based on the rule of law. It is a precondition to exercising fundamental rights and an important safeguard that ensures fairness and public trust in the criminal justice process. Legal aid reduces the length of time suspects are held in police stations and detention centres, and helps in reducing the prison population, wrongful convictions, prison overcrowding, and congestion in the courts. Access to justice cannot be considered in isolation when discussing dispensation of justice. And, when legal aid is provided free it breaks down some of the barriers to justice, and reduces the elements of elitism in justice.
The adversarial system introduced during the colonial-era made access to justice difficult, because it ended the Informal Dispute Resolution System (IDRS). Such a community arbitration system was, of course, not infallible. Yet, the fact that it was accessible to all made it the best choice for the settlement of petty disputes. Additionally, the proceedings were much simpler, conducted in the indigenous language and the litigant didn’t need a representative; thus, it was also cost effective.
In the colonial-era judicial system, i.e. the common law system, a poor person is left without the aid of counsel, put on trial without a proper charge, and convicted upon evidence collected with incompetence, evidence irrelevant to the issue, or evidence otherwise inadmissible. The legal complexities are compounded by enactment of new laws; the judges themselves are often unaware of these enactments, what to say of a poor illiterate populace unaware of their basic fundamental rights. Representation by a counsel and assistance by a person learned in law is a thus qua non for enjoying protection under Articles 4 and 9 of the Constitution of Pakistan that guarantee the right to be treated in accordance with law and guarantee safety of life and liberty.
Under Article 37(D), “Promotion of social justice and eradication of social evils”, the Constitution of Pakistan states that the State shall “ensure inexpensive and expeditious justice”. This Article of the Constitution is listed under Principals of Policy, whereby it is only available to the subjects if the government has enough funds and is not granted as a right.
The Supreme Court of Pakistan in the landmark judgment of Faisal vs. The state PLD 2007 SC 544.” observed that
“Under the Constitution it is the duty of the State to protect, respect, safeguard, ensure and facilitate the exercise of fundamental rights, therefore, the State is duty-bound to provide assistance to accused persons who are poor and indigent, therefore, it is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, liberty except in accordance with the procedure established by law while the citizen is in its custody whether he be a suspect, under trial or convict.”
Quoting from the case of Jon Richard Argersinger v. Raymond Hamlin (1972) 407 US 25, the judge observed that “the right to free legal services is an essential ingredient of reasonable, fair and just” dispensation of justice and a fair trial cannot be visualized without an accused being represented by a counsel of his or her choice or by a counsel on State expense.
Free Legal Aid Committees of Bar Associations, under the provisions of the Pakistan Bar Council Free Legal Aid Act, 1999, provides free legal aid facility in “appropriate” cases, however, these often fail to deliver the desired result as the lawyers devote more time to their wealthier clients and let their juniors get their feet wet at the cost of the lives of the poor.
The Legal Aid Society, working in Karachi, Pakistan, is the only organization in Pakistan that has, so far, been able to successfully intervene and provide free legal aid to prisoners in Sindh. The organization was initially mandated to deal with cases of women and juvenile prisoners, but it later expanded to providing legal relief to all prisoners at Karachi Central Jail. The organization is currently running its own legal aid call centre and has regional offices in many districts of Sindh Province.
Free legal assistance, at State cost, is a fundamental right of a person accused of an offence, and this fundamental right is implicit in the requirement of reasonable, fair, and just procedure. It is the absence of legal awareness that is responsible for the deception, exploitation, and deprivation of rights and benefits from which the poor suffer most in the country; therefore, they cannot become self-reliant and cannot even help themselves. Thus, the law ceases to be their protector. This miserable condition in which the poor find themselves can be alleviated, to some extent, by creating legal awareness amongst the poor.
The International Covenant on Civil and Political Rights states:
“that everyone charged with a criminal offence shall be entitled to be tried in his or her presence and to defend himself or herself in person or through legal assistance of his or her own choosing or assigned to him or her where the interests of justice so require, in a fair and public hearing by a competent, independent and impartial tribunal established by law.”
The UN has set out a few guidelines with regards to provision of free legal aid, which include the following: provision of legal aid to the needy, victims, and witnesses; legal aid at the pre-trial stage, during court proceedings, and at the post‑trial stage; right to be informed about legal aid; right of women to access legal aid; special measures for children; a nation-wide legal aid system, provision of appropriate human resources and paralegals; and partnerships with non‑State legal aid service providers and universities.
Institutionalized legal aid is the call of the hour, bearing in mind that inexpensive should not mean ineffective – a feature characteristic of legal aid in common law countries. The State should invest more in legal aid, to ensure and aid dispensation of justice to all. Access to justice is a fundamental human right and should not be denied to the marginalized and underprivileged factions of the society. It becomes incumbent on the State to play its role to protect its citizens from the miscarriage of justice.
