The document discusses legal aid in Nepal. It defines legal aid and explains that it is necessary to uphold human rights and ensure access to justice for all citizens, regardless of wealth. It then examines Nepal's legal aid system, noting that the majority of the population lives in poverty and lacks access to legal resources. The key issues identified are that existing legal aid laws seem inadequate and ineffective at providing coverage, and that current legal aid organizations have limited reach and shortcomings. The objectives of the study are to analyze provisions for access to justice and assess the contributions and limitations of major legal aid organizations in Nepal.
2. 2
CHAPTER‐ I
1.1 INTRODUCTION
Legal Aid is essentially a mechanism that enables the poor and the
vulnerable sectors of the society to be able to enforce their legal rights in
order to access a fair and equitable justice in the society. In a democratic
country, it is an immitigable prerequisite that all citizens get economic
and social justice in one way or another. Therefore as long as the poor
exist in the society, a legal aid will be necessary to uphold human rights
and equality for one and all.1
Legal Aid is defined as “The Free or inexpensive legal services provided to
those who cannot afford to pay full price, Legal Aid is usually
administrated locally by a specially established organization”2
.
The term “Legal Aid” is defined as a system of government founding for
those who cannot afford to pay for legal advice assistance and
representation” Legal Aid could be provided in there kinds they are: Legal
Advice or Assistance, Civil Legal Aid and Criminal Legal Aid 3
.
According to The Legal Aid Act, 1997: "The term Legal Aid means, Legal
Aid to the indigent person under this act and the term also includes
counseling and other legal services such as correspondence pleadings,
preparation of legal documents and proceedings in the courts or offices
on behalf of indigent person.4
Access to Justice is typically thought of as a jural relation between a
citizen or a group with rights and the state as an independent service
provider. Access to justice is not just a moral imperative, but a legal right,
under the ambit of international law, and the constitutional and national
laws of states. Under international law, and indeed the laws of most
states, this is not just a legal right but a human right, which must be
recognized, implemented and practiced by all states.5
1
Md. Nannu Mian & Md. Mamunur Rashid, A critical analysis of Legal Aid in Bangladesh, INTERNATIONAL JOURNAL
OF SOCIAL SCIENCE RESEARCH, Microthink Institute, March 2014, Url: http://dx.doi.org/10.5296/ijssv.v2i1.5268, at
140 , ( 2 Sep. 2016)
2
BLACK'S LAW DICTIONARY (9th
ed.), at 975 (2009)
3
LEGAL AID HANDBOOK, Legal Aid Board, Sweer and Maxweu, London, at.2 ,(1992)
4
Legal Aid Act, Sec.2 (1997)
5
AYESHA KADWANI DIAS & GITA HONWANA WELCH (Eds.), JUSTICE FOR THE POOR PERSPECTIVE ON
ACCLERATING ACCESS, Oxford University Press, New Delhi, India at. 3, (2011)
3. 3
All human beings are born free and equal in dignity and rights. Every
person should have equal access to justice when their dignity or rights
are infringed therefore; human dignity is always at risk if a justice system
is not able to ensure equal access to justice. Obstacle in access to justice
is a key challenge being faced by almost all societies across the world;
however, this problem is more serious in poor countries, and especially
for the people who are living in poverty and destitute. Impediment in the
way to justice, thus, leads vulnerable and marginalized towards more
vulnerability and marginalization. Strikingly, access to justice is widely
embraced and routinely violated aspects of human rights.6
It is well accepted that fundamental duty of the government is to
maintain law and order within the country. For this, it is necessary to
establish the rule of law7
. But to promote and secure the rule of law, it is
essential that the population of the country have basic knowledge of the
fields of law important to their daily life and also that there are means
available for them to engage Legal Aid when needed. But providing free
legal aid to the poor section of the population, a precondition for
claiming or defending own rights is of course that they are aware of what
their rights are. Consequently there is also a strong need for educating
the population about their rights and make them aware of their rights.
State has to render justice to all, whether rich or poor and should not
make any distinction among its peoples on the basis of wealth, power and
prestige. All citizens are equal in the eyes of law irrespective of their
financial positions, but economic inequality has made justice beyond
reach of the weaker sections of the people8
. If justice is denied, law is said
to be non‐prevailing. The effective Legal Aid program is an effective
means in the realization of principles of justice.
It is not necessary that person involved in cases, either civil or criminal,
should have knowledge on law or the provisions of law. Since law is
specialized or technical subject, not all persons can be expected to have
idea on the legal intricacies. And even if a person involved in legal action
6
Nahkul Subedi, A Normative Dilemma on Access to Justice: Much Emphasis on ACCESS and Little on Justice -Need to
Revisit the Socio-legal Interface, NJA LAW JOURNAL SPECIAL ISSUE, at 50, National Judicial Academy, Lalitpur (2012)
7
Bhimarjun Acharya, Are the Modern States Government Under the Rule of Law? ESSAYS ON CONSTITUTIONAL LAW,
Vol.38, at 66 Nepal Law Society, (2001)
8
A REPORT FOR ICJ/NEPAL SECTION IN COOPERATION WITH ICJ/GENEVA, Legal Aid and Legal literacy Scheme in
Nepal, at 6, (1994)
4. 4
has knowledge of law he may not be in a position to defend his case.
Further a common man is mainly the object of the adverse consequences.
He/she may be confused by the multiplicity of the body of laws involving
cumbersome procedures.
Added to be the exorbitant fees demanded by the lawyers, which are far
beyond the reach of a common man. Hence the rapid and complex
development of legal system makes the requirement of legal aid in lots of
cases. Extending help of lawyers to needy free of cost reflects the
philosophy of legal aid in modern society9
.
In the absence of Legal Aid to the destitute party to litigation, Judge can
hardly protect the interests. Therefore, legal aid is an essential ingredient
for due process of law. Necessity of Legal aid cannot be ignored. Absence
of legal aid means the deprivation of Justice10
.
In Nepal more that half (83%) of the population is living in rural and
remote areas, per capita income is very low i.e. USD 717 only and 25.2
percent of the population is living under poverty line and illiteracy is
about 35% shows the poor socio economic conditions of our country so
the access to justice seems far beyond the reach of a common man;
Therefore the necessity and importance of providing free legal assistance
is inevitable so as to realize the principle of justice in the country.11
The vast majority of Nepalese people are unaware on employing legal
counsel to protect their genuine cause and interests. Though, the people
who are aware of their rights but due to being physically, socio‐
economically disadvantaged they have no access to the legal assistantship
provided by the concerned authorities and also, the majority of educated
population being not able to understand the legal provisions and legal
intricacies. So a kind of fear always remains in the mind of general
population to involve in legal matters. So Legal Aid and Legal Literacy is
very important to establish rule of law and equitable treatment by law in
our country.
Legal Aid and Legal Literacy have been much‐discussed subjects in Nepal
for the last few decades. The constitution of Nepal 2015 in the article 20
(10) has guaranteed the Legal Aid right as the fundamental right as "Any
9
Supra note 8, at.3
10
Ibid at 7
11
STATISTICAL YEAR BOOK OF NEPAL, CBS, GON, (2013)
5. 5
indigent party shall have the right to free legal aid in accordance with
law"12
. There are also many professional and non‐governmental
organizations have been involved in promoting Legal Aid and legal
literacy programs in the country.
1.2 STATEMENT OF THE PROBLEM
Nepal is facing major socio economic problems and majority of the
population living in rural and remote areas are illiterate and
disadvantaged with problems of poverty and also the majority of
population are not aware of the fundamental rights and free legal
assistantship guaranteed by the constitution and laws. The enacted law
relating to Legal Aid (Legal Aid Act, 1997 and its Rule 1998) seems
unrealistic, unscientific and inadequate in order to cover the sole concept
of legal aid.
The sustainable institutional framework seems lacking and there are very
few organization involved in providing free legal aid and legal literacy
programs. The programs launched by central legal aid project and other
civil society organizations have generally short‐term programs and are
confined to the small and urban areas of the country only. Such programs
seem unable to cover the welfare right of the indigent people and they
have also lots of shortcomings, specially in mountainous and remote hill
districts. In addition to this, these districts also lack sufficient number of
lawyers as well.
The State Paid Lawyer Stipendiary Lawyer system has also not been
effective due to lack of specific knowledge on the specific subject, short‐
term appointment, lack of motivation, due to minimum remuneration
and incompetence.
12
THE CONSTITUTION OF NEPAL, ART 20(10) (2015)
6. 6
The major problem statements of this study are:
1. Are the prevailing laws related to Legal Aid in Nepal effective and
adequate to provide access to justice to the indigent people?
2. Are the major sources of Legal Aid (organizations/ institutions)
efficient and effective to maintain and promote the Legal Aid System
and Legal Literacy in Nepal?
1.3 OBJECTIVES OF THE STUDY
The objective of the study was as follows:
1. To identify some main provisions on Access to Justice in
International Instruments and the Concept of Legal Aid System in
Nepal.
2. To access the contribution of the some major organizations or
agencies working for Legal Aid and Legal Assistance in Nepal and
to study their contribution for the promotion of legal aid and to
analyze their strengths & weaknesses.
3. To assess and analyze the prevailing laws related to Legal Aid
System in Nepal and to analyze their strength and weakness.
7. 7
CHAPTER‐ II
INTERNATIONAL INSTRUMENTS & HISTORICAL
BACKGROUND OF ACCESS TO JUSTICE AND LEGAL AID
2.1 SOME MAIN PROVISIONS ON ACCESS TO JUSTICE IN
INTERNATIONAL INSTRUMENTS
Access to justice is not just a moral imperative, but a legal right, under
the ambit of international law, and the constitutional and national laws
of states. Under international law, and indeed the laws of most states,
this is not just a legal right but a human right, which must be recognized,
implemented and practiced by all states.
Access to Justice refers not only to the establishment of institutions and
procedural rules granting access to all, but also to the substantive laws
themselves , and the empowerment of the individuals to obtain justice.13
Some of the major International or (UN instruments) recognizing access
to justice rights as a fundamental rights. Which can be presented as
follows:14
Table No.‐1
Main Provisions on Access to Justice in International Instruments
S
N
Internation
al Legal
Instrument
s
Provisions on Access to Justice
1
UNIVERSAL
DECLARATI
ON OF
HUMAN
RIGHTS
(UDHR)
1948
Article 7: The right that all are equal before the law, non
discrimination and the equal protection of the law to all.
Article 8: The right of everyone to an effective remedy
for violation of the fundamental rights guaranteed under
the law.
Article 9: Freedom from arbitrary arrest or detention or
13
AYESHA KADWANI DIAS & GITA HONWANA WELCH (eds.), JUSTICE FOR THE POOR PERSPECTIVE ON
ACCLERATING ACCESS, Oxford University Press, New Delhi, India at. 5‐6, (2011)
14
Ibid at.63-71
8. 8
exile.
Article 10: Right to a fair and public hearing by an
independent and impartial tribunal, in the
determination of rights and obligations and of criminal
charge.
Article 11: The right to presumption of innocent.
2 THE
INTERNATI
ONAL
COVENANT
ON CIVIL
AND
POLITICAL
RIGHTS
(ICCPR)
(1976)
Article 14: Equality before the courts and tribunals; The
right to fair and public hearing by a competent,
independent and impartial tribunal established by law;
Any judgment given in a criminal case or in a suit at law
shall be made public except where the interest of
juveniles otherwise require or the proceedings concern
matrimonial disputes or the guardianship of children;
The right to the presumption of innocence; Every
accused shall be entitled to these minimum guarantees:
• To be informed promptly and in detail in a language
which he or she understands of the nature and cause
of the charge against him or her;
• To have adequate time and facilities for the
preparation of his or her defense and to communicate
with counsel of his or her own choosing;
• To be tried without undue delay;
• 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.
• To be informed, if he or she does not have legal
assistance, of this right; and to have legal assistance
assigned to him or her, in any case where the interest
of justice so require, and without payment by him or
her in any such case if he or she does not have
sufficient means to pay for it.
• To examine, or have examined, the witness against
him or her and obtain the attendance and examination
of witness on his or her behalf under the same
condition as witness against him or her,
9. 9
• To have the free assistance of an interpreter if he or
she cannot understand or speak the language used in
court, and
• Not to be compelled to testify against himself or
herself or to confess guilt.
Anyone who is convicted of a crime shall have the right
to his or her conviction and sentence reviewed by a
higher tribunal according to law.
3 INTERNATI
ONAL
COVENANT
ON
ECONOMIC,
SOCIAL
AND
CULTURAL
RIGHTS
(ICESCE)
1976
Article 2:. Each State Party to the present Covenant
undertakes to take steps, individually and through
international assistance and co‐operation, especially
economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full
realization of the rights recognized in the present
Covenant by all appropriate means, including
particularly the adoption of legislative measures.
The States guarantee that the rights enunciated in the
covenant will be exercised without discrimination of any
kind as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property,
birth or other status.
Article 3: The States Parties to the present Covenant
undertake to ensure the equal right of men and women
to the enjoyment of all economic, social and cultural
rights set forth in the present Covenant.
4 INTERNATIONAL CONVENTION ON THE PROTECTION OF THE
RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR
FAMILIES (CMWF) (1990): (Article 18)
5 AARHUS CONVENTION, 1998 (Article 9: Access to Justice )
6 BASIC PRINCIPLES ON THE INDEPENDENCE OF THE JUDICIARY
(BPIJ) 1985: (Principle 1 to 7 & 10)
7 BASIC PRINCIPLES ON THE ROLE OF LAWYERS (1990): (Principle 1
to 8, 13, 14, 19 &21)
8 GUIDELINES ON THE ROLE OF PROSECUTORS, 1990: (Guidelines 2,
10, 12, 16, 18 & 20)
9 DECLARATION OF BASIC PRINCIPLES OF JUSTICE FOR VICTIMS OF
CRIME AND ABUSE OF POWER, 1985: (Principles 4 & 8)
10. 10
2.2 SOME GLOBAL IMPEDIMENTS TO ACCESS TO JUSTICE:
In spite of these various legislative instruments, for a large section of
people, there are various impediments to obtaining justice at all stages of
the formal judicial process‐ that is , pre‐trial, trial, and post‐trial. This is
so in both developed and developing countries, although the nature and
extent of the challenges may differ across countries. In the first instance,
individual can only access the justice system where they are aware of
their rights and have the appropriate support, especially in the form of
legal services, from qualified practiceners. A forum where rights can be
enforced and an environment where rights can be pursued without fear
or intimidation are essential.
However, in reality, many individuals are ignorant of their rights due to a
lack of information about the law, a situation that is exacerbated in the
poorest of countries by illiteracy. Obtaining legal advice and other forms
of professional legal support is very expensive and is therefore out of
reach for the poor. Legal Aid services, even where they exist, are highly
under ‐founded and inadequate, and as such, access to effective legal
advice and representation is more or less a preserve of the rich even in
the richest countries. Even where poor people obtain legal support, The
quality of this is not comparable to that obtained by the rich. This in turn
could have an impact on the justice obtained so that there is unequal
justice.
In poorer countries not only lawyers, but even the courts, which are
usually situated in the towns and cities, are not easily accessible from the
more remote rural areas. Sometimes this could involve a whole day's trip
with the cost representing a very high proportion of an individual's
monthly earnings. Usually owing to factors such as poor facilities,
complex procedural rules, and a very high number of cases, the courts are
unable to cope effectively. Inordinate delays, language barriers, and
inappropriate or ineffectual remedies further alienate litigants, especially
the poor, minorities, and other vulnerable groups, who either do not have
the resources to conclude the process or consider the remedies not
worthy of the time and financial investment involved.15
15
Supranote 13, at 6
11. 11
2.3. HISTORICAL BACKGROUND OF LEGAL AID
2.3.1 Europe & America :
There has been a long tradition of States providing some form of legal aid
to the poor in the majority legal systems. A quite ancient right to access
to justice dates back to England in the 1400s where the Statute of Henry
VII (1495) waived all fees for indigent civil litigants in the common law
courts and empowered the courts to appoint lawyers to provide
representation in court without compensation.
During the 19th
Century, most Continental codes of law contained the
principle of the “poor man’s law”, providing court fee waivers and
appointment of duty counsel for the very poor. However, it was not until
the 1940s and 1950s, that formal, comprehensive and statutorily funded
legal aid schemes were established. These earlier legal aid service, such as
England’s national legal aid system established in 1949 and Ontario,
Canada’s provincial legal aid service established in 1951, were tended to
give priority to only criminal law matters.
Nevertheless, in the United States, in 1960s, a broader approach
developed with respect to the role of legal aid and legal services in
general. Services under legal aid schemes were extended to address the
“unmet needs” of the poor, which included housing, social security,
family and debt issues. This philosophy spread to Canada, Australia and
Europe starting of the clinic or law center movement. By the end of the
1960s and early 1970s, this transformed perception of social justice gave
rise to the ‘access to justice’ movement. Access to justice means
effective, efficient access to the law requiring not only legal advice and
representation in court, but also information and education of the law,
reform and a willingness to be able to identify the unmet needs of the
poor.
In the same time there was another significant development in Europe
regarding legal aid. The European Conference of Ministers issued a
declaration on legal aid in the late 1970s, which considered the right of
access to justice as an essential feature of any democratic society and
firmly stated that legal aid no longer could be considered a charity but as
an obligation of the community as a whole. The resolution dealt with
12. 12
both criminal and civil legal aid, calling on States to accept the
responsibility for financing these legal aid systems.16
The earliest Legal Aid movement appears in France in the year 1851 when
some enactment was introduced for providing legal assistance to the
indigent. In Britain, the history of the organized efforts on the part of the
State to provide legal services to the poor and needy dates back to 1944.
In USA before the adoption of the Federal Constitution, 1799, the
Constitution of Maryland had declared ‘That, in all criminal prosecutions,
every man had a right… to be allowed counsel…’similarly Constitution of
Massachusetts adopted in 1780, New Hampshire in 1784, New York in
1777 and Pennsylvania in 1776, had also declared to the same effect.17
The concept of legal aid was emerged and flourished all over the world,
only after the global impact of second word war after the formation of
UNO for world peace and human development, had promulgated The
Manifesto of Universal declaration of Human Rights 1948. In 6‐12 act of
that manifesto the provision of legal equality and legal security had been
mentioned18
. After then, different countries in the world had accepted
the concept of human rights. Consequently they started to formulate act
and laws accordingly.
In Britain Legal Aid and Legal Advice Act, 1949 and Legal Aid Solicitors
Act, 1949 in Scotland, other countries like USA, Germany, France,
Norway, Netherlands, Newze‐land etc, had also formulated Legal Aid
Acts in 1960’s decade.
2.3.1 South Aisa: SAARC countries:
A. INDIA:
If we see the history of Legal Aid in south Asia, India has the oldest
record in this regard. Since 1952, the Govt. of India also started
addressing to the question of legal aid for the poor in various conferences
16
M. Aftab Udddin: Access to Justice and Legal Aid System of Bangladesh, Government Law Journal Bangladesh (Vol. 1,
July 4, 2014), http://www.lawjournalbd.com /2014/07/access-to-justice-and-legal-aid-system-of-bangladesh-government
(Accessed 1 Sep. 2016)
17
Sudeep Gautam, Concept, Need and Development of Legal Aid ; NYAYADOOT (CONVENTION SPECIAL ISSUE at. 79,
(2059)
18
Bhim Rawal, Free Legal Aid: Development, Concept and Possibility in the Nepalese Context; NYAYADOOT, Vol.4, Part2,
Year 19, at 92, (1988)
13. 13
of Law Ministers and Law Commissions. In 1960, some guidelines were
drawn by the Govt. for legal aid schemes. In different states legal aid
schemes were floated through Legal Aid Boards, Societies and Law
Departments. In 1980, a Committee at the national level was constituted
to oversee and supervise legal aid programmes throughout the country
under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati then a Judge
of the Supreme Court of India. This Committee came to be known as
CILAS (Committee for Implementing Legal Aid Schemes) and started
monitoring legal aid activities throughout the country.19
Some famous
Landmark decisions of Supreme Court of India in regarding legal aid are:
Hussainara Khatoon Vs. Home Secretary, State of Bihar, Patna20
Sunil Batra Vs. Delhi Administration21
Khatri Vs. State of Bihar22
Suk Das & Anr Vs Union Territory of Arunachal23
B. PAKISTAN:
Legal Practitioners and Bar Council Act, 1973 deals with the provision of
legal aid. This section came into operation when in 1999 Pakistan Bar
Council notified the Free Legal Aid Committees Rules, 1999. The Free
Legal Aid Committees Rules, 1999 provide for legal aid committees at the
centre, provinces and districts. Each legal aid committee maintains two
lists of lawyers' panels; lawyers who offer services on pro bono basis, and
those who offer services on low bono basis. The Free Legal Aid
Committees Rules, 1999 require each member of Pakistan Bar Council
and Provincial Bar Councils to conduct at least one case each year
assigned to the member by the Legal Aid Committee. There is no secured
funding source and mostly committees rely on funding from the Pakistan
Bar Council and sometimes grants from governments, NGOs and
individuals. The Public Defenders & Free Legal Aid Ordinance, 2009 was
a progressive step towards a sustainable legal aid system in the country.
The Ordinance provided for setting up a Public Defender's System. The
Chief Public Defender was heading this office at the Provincial level and
19
National Legal Service Authority (NALSA): Introduction and History of NALSA, http://nalsa.gov.in (Accessed 1 Sep.2016)
20
Hussainara Khatoon Vs. Home Secretary, State of Bihar, Patna, AIR 1979, Sc-1369
21
Sunil Batra Vs. Delhi Administration, AIR 1579,1980, SCR (2) 557
22
Khatri Vs. State of Bihar, AIR, 1981 SC 928
23
Suk Das & Anr Vs Union Territory of Arunachal, AIR 991, 1986 SCR (1) 590
14. 14
ran legal aid work through the offices of District Public Defenders and
Defenders for Legal Aid Committees. However, this Ordinance yet could
not evolve into a law and became history.24
C. SRI LANKA:
In Sri Lanka Law Society of Ceylon was Incorporated in 1958, Legal Aid
Commission of Sri Lanka (LAC) is the foremost amongst the various
other institutions and organizations that cater to this important
requirement, mainly due to its sustainability and stability. Legal Aid
Commission was established by the Act No 27 of 1978 and at present it
has 76 Centres Island wide. The Legal Aid Commission has undertaken
many ambitious projects to achieve the above vision. The Mission of the
Legal Aid Commission as stated in the Legal Aid Act No.27 of 1978 is to
provide Legal Aid to all the “Deserving Persons” in the Country.. The LAC
with over 120 permanent Legal Officers and over 1000 panel lawyers from
the regional Bar Associations is the main institution dealing with access
to equitable Justice in Sri Lanka.25
D. BANGLADESH:
The provision relating to legal aid under Bangladesh law was first
introduced in the Code of Civil Procedure, 1908. Government operated
legal aid system in Bangladesh was first introduced through a national
legal aid fund in 1994, which was later revived through formation of
National and District Committees in 1997. Finally, the current legal aid
service under a National Legal Aid Services Organization (NLASO) was
established by enacting the Legal Aid Services Act, 2000 (as amended,
LASA 2000)26
.
E. MALDIVES:
According to Article 53 of the Constitution 2008 of the Republic of
Maldives, everyone has the right to retain legal counsel at any point
24
Dr. Suhail Shahzad, Free Legal Aid in Pakistan- Position Paper, Pakistan Institute of Legislative development and
Transperancy (PILDAT), Oct.2015, ISBN: 978-969-558-532-0 (Accessed 2 Sep.2016)
25
Legal Aid Commission of Sri Lanka (LAC), http://www.legalaid.gov.lk/index.php/2016-01-13-09-16-07/about-us (Accessed 2
Sep.2016)
26
Supranote 16
15. 15
where legal assistance is required (Article 539(a)); and in serious criminal
cases, the State is mandated to provide a lawyer for the accused who
cannot afford to engage one (Article 53(b)).1 In addition, several statutes
such as the Domestic Violence Act contain discreet provisions on legal
aid. While the 2008 Constitution provides for legal aid by the State for
‘serious crimes,’ the Maldives has yet to establish a proper legal aid
system, or a legal framework for the implementation of legal aid. Statute
does not enumerate on the types of ‘serious criminal cases mentioned in
the Constitution, though guidelines from the Attorney General’s Office
(AGO) list the crimes that qualify for free legal aid from the State. The
AGO also maintains a roster of lawyers to provide fee legal aid to
qualifying criminal defendants.27
F. AFGHANISTAN:
Afghanistan has a surprisingly rich history of defense lawyer and legal aid
regulation dating back to the reign of Zahir Shah. The constitution of
Zahir Shah, enacted on 1 October 1964 was the first constitution to
recognize the right of criminally accused persons to have 'defense
counsel'. Shortly afterward in 1965 the first statutory provision for legal
aid was created in 1965. Similar laws governing defense lawyers and legal
aid were passed in 1972, 1987, 1997 and 1999 respectively.28
G. BHUTAN:
As the issue of legal aid is emerging in Bhutan, the office of the Attorney
General, Bhutan National Legal Institute and UNDP Bhutan have jointly
organized the 1st
International Symposium on Legal Aid in Bhutan on 27‐
28 October 2014.
The Constitution of the Kingdom of Bhutan, 2008, under Article 9(6)
states that " The State shall endeavor to provide legal aid to secure
justice, which shall not be denied to any person by reason of economic
and other disabilities". Although the provision of the constitution do not
27
UNDP Maldives: Option for Legal Aid Program in the Maldives, Working Paper Series, at 5
http://www.af.undp.org/content/dam/maldives/docs/Democratic%20 Governance/ Final_ word_ doc%20-
20Legal%20Aid%20Options%20in%20the%20Maldives.pdf (Accessed 3 Sep.2016)
28
Sarah Han: Legal Aid in Afghanistan; Afghanistan Analysts Network, 2012, at 1, http:// www. afghanistan- analysts.org/wp-
content/uploads/downloads/2012/09/legalaid.pdf at 3, (Accessed 3 Sep. 2016)
16. 16
directly states that the right to legal aid is a fundamental right but a
holistic reading of Article 7(15),21 & Article 9(6) of the constitution along
with section 34 of Civil and Criminal Procedure Code imply that the right
to legal aid is a fundamental right.29
H. NEPAL:
In the context of Nepal the concept of legal aid was emerged only after
the Rana Regime. Nepal after being the member of UNO had ratified the
Manifesto of The Universal declaration of Human Rights and also has
been ratifying the other various conventions of UNO. The first
democratic constitution of Nepal after the Rana Regime, Nepal Interim
Government Act, 2007 had no provision regarding right to be defended
by counsel. The next constitution of 2015 on its article 3 Sub‐article 6
under the heading of Fundamental Rights declared that every one
arrested will have right to take an advice and defended by counsel of his
choice. In addition to this, the system of Stipendiary Lawyer (Baitanik
Wakil) was also done in 2015 B.S by the decision of the full court
(Pradhan Nyayalaya) 30
. Similar kind of provision was incorporate in sub‐
article 6 of article 11 of constitution of Nepal 2019. After the collapse of
the thirty years long party less rule and restoration of multiparty
democracy in 1990, As a result, the The constitution of the kingdom of
Nepal 1990 was promulgated as a fundamental law of the land, which was
far more progressive than all the past constitutions31
. Which had
guaranteed the fundamental right of the people. Along with this, the
constitution has explicitly mentioned about the promotion of legal aid
system, art 23(14) of the part IV of the constitution has given recognition
to Legal Aid. According to the concept of Legal Aid, mentioned in the
preamble of the constitution, The Legal Aid Act‐1997 and Legal Aid
Rules, 1998 were formulated and enacted.
Interim constitution of Nepal 2063 (2007), had In Article 24(10) which
guaranteed legal aid as fundamental righ "Any incapable party shall have
the right to free legal aid, as provided in law."32
The constitution of Nepal
2015 in the article 20 (10) has guaranteed the Legal Aid right as the
29
Jamyang Sherab, Legal Aid in Bhutan, Background Paper for Legal Aid Symposium 27-28 October Terma Linca, Thimphu,
Bhutan, http://www.unct.org.bt/legalaid/doc/ Background%20paper %20on%20Legal%20aid%20in%20 Bhutan %20
FINAL2.pdf (Accessed 3 Sep.2016)
30
Supra Note 17, at 1-11
31
Ibid, at 81
32
THE INTERIM CONSTITUTION OF NEPAL, ART 24 ( 2007)
18. 18
were in the courts were provided with the legal defense and other
services in the litigation. Form this 17,335 cases needy people benefited
among them 10,017 were woman.
In the beginning of the collaboration Legal aid was provided through the
project central office and branch offices in 33 districts, which were
transferred to the District Legal Aid Committee after the implementation
of the Legal Aid Act,1997 by the Government. The collaboration
continued in this period with focus on institutionalization of legal aid,
empowering woman lawyers and improving accessibility of justice at
present the collaboration is run as access to Justice 2010‐2014.34
THE ORGANIZATION STRUCTURE OF THE LEGAL AID PROJECT:
The organization structure of the Legal Aid Project implemented from
1988‐2009 was as follows.
34
Nepal Bar Association, Boosting Access to Justice for Needy People, Nepal Bar Association, Kathmandu, at 1-2, (2013)
19. 19
CHAPTER ‐III
3. SOURCES OF LEGAL AID IN NEPAL:
There are mainly four basic sources of Legal Aid in Nepal, they are:
3.1. GOVERNMENT OF NEPAL:
Government of Nepal is one of the source of providing Legal Aid in
Nepal. District Legal Aid Committees (DLACs) under the Legal Aid Act,
1997 are instrumental in providing legal aid in the country. DLACs had
been implemented by the Government in different phases as follows:
Table No.2
Different phases of Implementation of DLACs by the Government
Phase / Date of
Implementation
Name of DLACs
1st
‐ 9 Nov., 1998 Sunsari, Dolkha, Bara, Palpa and Banke
2nd
‐ 19 Feb,2000 Sarlahi, Dhading and Gulmi
3rd
‐14 April 2004 Dhanusha, Makawanpur, Jhapa, Kaski, Kanchanpur
4th
‐ 16 Dec, 2003 Parsa, Kavrepallanchowk, Morang, Syangja,Kailali,
Mahottari, Rupandhehi, Doti, Ilam and Dang
5th
‐17 Dec, 2004 Rautahat, Sindhupallanchok, Saptari, Tanahu, Bardia,
Siraha, Kapilbastu, Darchula, Dhankuta and Surkhet
6th
‐17 July, 2006 Panchthar, Udyapur, Sindhuli, Chitwan, Nawalparasi,
Baglung, Parwat, Ardhakhanchi, Pyuthan and
Dandeldhura
7th
‐ 15 Jan, 2008 Taplejung, Bajhang, Nuwakot, Lamjunj, Myagdi,
Gorkha, Ramechhap, Jumla, Rolpa, Baitadi
8th
‐2009 Similarly, the Legal Aid Program has taken a policy to
transform the established Legal Aid Offices in other 10
different districts into DLACs of the respective districts
to the Central Legal Aid Committee of the Nepal
Government in 2009.
At present: There are 75 DLAC's established in all the 75 Districts
Source: Legal Aid Manual, Nepal Bar Association (2009)
20. 20
Some strength and weaknesses of the legal aid by the Government can be
summarized as follows:
Table No.‐3
Analysis of some Strength and Weaknesses of the Legal Aid by the
Government
Strengths Weaknesses
1. Credibility‐ as it is carried
with the view to translate
the aspirations of the
constitution in practice.
1. Limited Scope
2. Sustainable
2. Unrealistic Ceiling for getting legal aid
3. Biasness ‐Difficulty to get
recommendation from local bodies due
to political biasness.
4. Faulty Composition of the DLACs‐
Headed by Public Prosecutor.
5. Concept of Reimbursement‐ If legal aid is
provided to help the helpless people
there seems no rationale to reimburse
the expenses incurred for legal aid.
6. Nominal Fund of DLAC's
7. Lack of Involvement of Experienced
Lawyers
8. Inherent Shortcoming in the acts‐ It is
not an umbrella act, faulty composition
of committees, ceiling and
reimbursement etc. provisions seems
impractical and unrealistic.
3.2. COURTS:
There are there tiers of courts in Nepal, they are Supreme Court‐1,
Appellate courts‐16 and District courts 75. Supreme court of Nepal is the
apex court having jurisdiction as the court of record. All the courts
provide legal aid through Stipendiary Lawyer (Vaitanik wakil)
The provisions related to the Stipendiary lawyer are incorporated in the
Rules of various courts, for example in the Supreme Court Rules, 1992,
21. 21
Appellate Court Rules, 1991 and District Court Rules, 1995. Rule 111(A) of
the Supreme Court Rules 199235
, provides on legal aid. It has authorized
the Registrar of the Supreme Court of Nepal to appoint a stipendiary
lawyer from among the advocates through a fair competition. The
stipendiary lawyer is required to work in the legal aid section of the
Supreme Court of Nepal. The Supreme Court provides legal aid in the
cases in which the party of a case is helpless, unable, children, poor or
prisoner who is not able to afford a private lawyer.
The decision on providing legal aid in a case is taken either by the Chief
Justice, concerned Bench or by the Registrar. When a litigant applies
either before the Chief Justice or concerned Bench or the Registrar, each
of them can take decision at his / her satisfaction that there is a need to
provide legal aid to the applicant. In such cases, the stipendiary lawyers
provide legal aid including preparation of necessary legal documents and
pleading before the Bench.
The stipendiary lawyer is expected to fulfill all the rules of the code of
conduct applicable to other practicing lawyers. He / she is provided
salary as prescribed by the Nepal Government. However, he / she can be
reappointed. Generally the office of the Registrar of the Supreme Court
publishes a notice in the Notice Board of the Supreme Court and the
Nepal Bar Association and calls for the application for the post of the
Stipendiary from the interested persons holding a license of Advocate.
Seniority and the less working load of the applicant are considered the
most important criteria for the appointment of the Stipendiary.
Generally women applicants are given preference while appointing the
Stipendiary in practice. The Stipendiary has to submit the report of
his/her work along with the difficulties he/she faced while providing legal
aid and his/her recommendations if any to the court every month. But
this rule has not been applied in most of the cases.
There are similar provisions on the stipendiary lawyer in Appellate Court
Rules and District Court Rules. Rules 105(A) of the Appellate Court Rules,
199136
and Rules 95 (A) of the District Court Rules, 199537
provide similar
provisions to the Supreme Court Rules on legal aid. As prescribed by the
35
Supreme Court Rules Rule 111(A) , (1992)
36
Appellate Court Rules, Rules 105(A), (1991)
37
District Court Rules, Rules 95 (A), (1995)
22. 22
Rules, both the District Courts and Appellate Courts have a legal aid
section in each court. Both Rules prescribe that the stipendiary lawyer
will be appointed among the applicant advocates available.
If advocates are not available in such situation stipendiary lawyer will be
appointed among the applicant pleaders.
The conditions for providing legal aid under the Supreme Court Rules
and the District Court and Appellate Court Rules are similar. Under the
Appellate Court Rules the decision will be taken either by the Chief
Judge, concerned Bench or by the Registrar. In the District Court either a
Judge or the Chief Judicial Officer (Shrestedar) decides on providing legal
aid.
Presently there are two stipendiary lawyers in the Supreme Court, one
stipendiary lawyer in each Appellate Court and one in each District
Court.
At the beginning the stipendiary lawyers were paid 100.00 NRs. and this
remuneration was equal to the Section Officer. Later, the remuneration
was increased to 400 NRs, which was also equal to the Section Officer.
Until Aug. 1999 they were paid NRs1000, later which was increased to
NRs. 2000 per month. Recent remuneration of the stipendiary lawyer of
Supreme court is equivalent to the Nepal Government Under Secretary
and Stipendiary Lawyer of Appeal and District court's equivalent to the
Nepal Government's Section Officer. At present the Stipendiary Lawyer
appointed in various courts of Nepal is given in the annex‐3
The duty of the stipendiary lawyer according to these various Rules is to
provide legal aid to the helpless, unable, poor, children and prisoner
litigants as directed or prescribed by the court. However the Rules have
not defined and also developed standards so that the helpless, unable and
poor persons who are litigant in a case could be objectively identified and
need legal aid could be provided to them. So, generally the courts reach
to a decision on legal aid on the basis of their satisfaction.
Also, there is no uniform and established system and practice on
appointment of the stipendiary lawyer. In some courts, the stipendiary
lawyer is appointed on the recommendation of Bar Association, in some
courts he / she is appointed through an open competition including
24. 24
3. Due to short time period of appointment and appointing another
Stipendiary Lawyer only by the decision of the court, there may be
discontinuity or gap in the service of Stipendiary Lawyer.
Some strength and weaknesses of the legal aid by court can be
summarized as follows:
Table No.‐4
Analysis of some Strength and Weaknesses of the Legal Aid by the Court
Strengths Weaknesses
1. Institutionalized form and character 1. Less qualitative Service by the
incompetent stipendiary lawyer.
2. Sustainable (Continuous
appointment of Stipendiary Lawyer
in various courts and allocation of
budget by the government)
2. Inadequate Preparation by the
Stipendiary Lawyer
3. Easily Accessible 3. Relation between Stipendiary Lawyer
and client having legal aid don't have
much interactions in most of the cases
3. Wide Coverage 93 Stipendiary
Lawyer appointed in all tiers of
courts
4. Very formal relation between court and
the stipendiary lawyer and Lack of
Monitoring their work by the court.
3.2.1 LEGAL ASSISTANCE & REPRESENTATIONS OF STIPENDIARY
LAWYER'S IN DIFFERENT COURTS:
The information about legal assistance and legal representation provided
by the Stipendiary Lawyer in Various Court's have been collected from
the available Annual Reports of Supreme courts from the fiscal year 2064‐
065 upto 2071‐072 which has been tabulated as follows:
25. 25
Table No.‐5
Legal aid and Representations Report related to
Stipendiary Lawyer from fiscal year 2064‐065 upto 2070‐071
Fiscal Year 2064‐065
S.N. Name of Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 18564 162 45 207
2 Appellate Court 18342 115 80 195
3 District Courts 63721 686 315 1001
Total 100627 963 440 1403
Fiscal year 2065‐066
S.N.
Name of
Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 17961 78 1 79
2
Appellate
Court 20288 172 77 249
3 District Courts 75048 672 415 1087
Total 113297 922 493 1415
Fiscal year 2066‐067
S.N.
Name of
Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 17354 141 205 346
2
Appellate
Court 20435 133 80 213
3 District Courts 80696 783 689 1472
Total 118485 1057 974 2031
Fiscal year 2067‐068
S.N.
Name of
Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 17892 180 93 273
2
Appellate
Court 23234 180 186 366
3 District Courts 87795 931 733 1664
Total 128921 1291 1012 2303
26. 26
Fiscal year 2068‐069
S.N. Name of Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 19053 229 93 322
2 Appellate Court 27961 204 138 342
3 District Courts 96424 1133 497 1630
Total 143438 1566 728 2294
Fiscal year 2069‐070
S.N. Name of Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 20811 375 100 475
2 Appellate Court 31507 446 234 680
3 District Courts 102881 1343 932 2275
Total 155199 2164 1266 3430
Fiscal year 2070‐071
S.N. Name of Court Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Detained in
custody Other Total
1 Supreme Court 24735 368 274 642
2 Appellate Court 41852 458 197 655
3 District Courts 110629 1710 827 2537
Total 177216 2536 1298 3834
Source: Supreme Court Annual Reports from f/y 2064‐065 to 2070‐071
(2016)
The above table of Legal aid and Representations Report related to
Stipendiary Lawyer's from fiscal year 2064‐065 up to 2070‐071 shows that
the during this period; the number of recorded cases and cases in which
legal aid and representations provided by the Stipendiary Lawyer have
been increased considerably. The cases of detained in custody is found
higher in all these years.
27. 27
Table No.‐6
Legal aid and Representations Report related to
Stipendiary Lawyer fiscal year 2071‐072
Fiscal year 2071‐072
S.N.
Name of
Court
Drafting
Cases in which Legal service and
works provided by Stipendiary Lawyer
Counselling
Service
Witness/
cross
Examination Pleading
Attendance
(Tarikh)
Jail
Visit
1
Supreme
Court 25 21 0 167 0 0
2
Appellate
Court 217 795 10 1026 0 415
3 District Courts 1527 3473 949 2728 74 1742
Total 1769 4289 959 3921 74 2157
Source: Supreme Court Annual Reports from (2016)
The above table reveals that in this period the stipendiary lawyer has
accomplished 1769 number of drafting work, 4289 number of counseling
service, 959 witness cross examination, 3291 number of litigation, 74
attendance (tarikh taken) and 2157 times of Jail visit in all the different
courts. Since this year the report shows that the services provided by the
Stipendiary Lawyer has been increased considerably in comparison to the
previous years.
Table No.‐7
Summary of Stipendiary Lawyer's Legal Assistance and Representation in
all the courts from fiscal year 2064‐065 up to 2071‐072
S.N.
Fiscal
Year
Report related to Stipendiary Lawyer's legal aid
/Representations from Fiscal year 2064‐065 to
2070‐071
Total
recorded
cases
Cases in which Legal Aid /
Representation provided by
Stipendiary Lawyer
Cases of
detention in
Custody Other Total
1 2064/065 100627 963 440 1403
2 2065/066 113297 922 493 1415
3 2066/067 118485 1057 974 2031
4 2067/068 128921 1291 1012 2303
5 2068/069 143438 1566 728 2294
6 2069/070 155199 2164 1266 3430
28. 28
7 2070/071 177216 2536 1298 3834
Total 937183 10499 6211 16710
Source: Supreme Court Annual Reports from f/y 2064‐065 to 2070‐071 (2016)
The above summary table reveals that total recorded cases have been
found increased considerably form fiscal year 2064‐065 to 2070‐071 and
the Legal aid and Representations Report related to Stipendiary Lawyer
shows that the during this period; legal aid and representations provided
by the Stipendiary Lawyer have been also increased considerably. The
cases of detained in custody is found higher in all through these years.
Table No.‐8
Report related to Stipendiary Lawyer's Legal Assistance and
Representation provided in all the courts in fiscal year 2071‐072
S.N
Fiscal
Year
Drafting
Cases in which Legal service and works provided by
Stipendiary Lawyer
Counselling
Service
Witness/
cross
Examination Pleading
Attendance
(Tarekh)
Jail
Visit
2071‐072 1769 4289 959 3921 74 2157
Source: Supreme Court Annual Reports (2016)
The above table reveals that in this period the stipendiary lawyer has
accomplished 1769 number of drafting work, 4289 number of counseling
service, 959 witness cross examination, 3291 number of litigation, 74
attendance (tarikh taken) and 2157 times of Jail visit in all the different
courts. This has been also analysed in the table no.6.
3.2.2 MAJOR SUGGESTION PROVIDED TO THE REGISTRAR BY
THE STIPENDIARY LAWYER OF SUPREME COURT OF NEPAL
IN THEIR MONTHLY PROGRESS REPORT AVAILABLE FROM
2072 SHRAWAN TO 2073 BAISAKH IN ACCORDANCE TO THE
SUPREME COURT RULES, 1992, RULE 111(a)(9) ARE AS
FOLLOWS:
1. Among the cases in which service provided by the stipendiary
lawyers, the cases of custody seems higher than the other cases
and in some cases forwarded with suggestion from district and
29. 29
appeal courts should be separated and send to the bench for for
the quick hearing.
2. The cases of detention should be given higher priority than the
other cases and send to the bench for quick and continuous
hearings.
3. The work load of the stipendiary lawyer of Supreme Court
seems higher on the basis of cases, so an assistant should be
provided for their help to increase efficiency.
4. The proper and on time information has to be provided to the
the stipendiary lawyer from the concerned sections about and
after the appointment of the Stipendiary Lawyer and the
appointment of other Legal professionals; So it is requested to
provide directions to the concerned sections for so and it is felt
that in the cases appointed with other legal professional
appointed; it has been felt that the bench has also given less
priority in litigation to the stipendiary lawyer.
5. The stipendiary lawyer has reminded to the registrar for non
implementation of the the suggestions provided repetitively in
the previous reports.
The above suggestions provided by the Stipendiary Lawyers of the
supreme court in their monthly reports; it has been observed that they
have been providing almost the same suggestions repetitively more than
half of the whole year and reminding for the non implementations of
such suggestions to the registrar. Thus the passive aspects of the
Stipendiary Lawyer system have been easily understood.
3.3 BAR ASSOCIATION:
Nepal Bar Association is another important source of Legal Aid in Nepal.
It has its organizations in all the courts of Nepal and provides Legal Aid
in support of different partners mainly Norwegian Bar Association and
European Commission founded Legal Aid Projects.
30. 30
Access to Justice (A to J) Project is one of the main programs of the Nepal
Bar Association, based on an agreement between Nepal Bar Association
(NEBA) and Norwegian Bar Association (NBA). NEBA is engaged in social
welfare activities, in collaboration with NBA, in favor of needy women,
children and people of underprivileged community since 1988 through
Legal Aid Project, it has renewed the project as Access to Justice Project.
The A to J Project is implemented in Nepal since 1st January, 2010 in co‐
operation with the Norwegian Bar Association and with the funding of
NORAD.41
A. Objectives of A to J Project:
The objectives of the project are as follows:
1. To strengthen the concept of Rule of Law & Legal Aid in Nepal.
2. To enable access to justice of targeted persons/groups.
3. To protect human rights by intervening policy making bodies of the
government.
4. To provide professional training to staffs of District Legal Aid
Committees and Rosters of Lawyers to enhance their capacity.
5. To enhance legal education through the development of school level
curriculum.
6. To provide legal aid for Women, Dalit, Janajati, Madheshi and other
marginalized community.
7. To carry out advocacy and awareness programs for Women,
Children, Dalit, Janajati, Madheshi and marginalized community's
rights.
8. To lobby for enactment of new laws relating Human Rights.
B. Target Groups or Beneficiaries of A to J Project:
The principal target groups of the Project are: all poor and indigent
Nepali people including Women and Children, Dalit, Janajati,
41
Nepal Bar Association, Url:http://www.nepalbar.org/projects/NEBA-AJP.php (16 April 2015)
31. 31
Madheshiand marginalized community who cannot afford legal counsel
cost.
The achievements and various activities of Nepal Bar Association's Legal
Aid Project throughout the country for the promotion of Legal Aid and
Legal Literacy from its establishment since 1988 upto 2012 can be
tabulated as and summarized as follows:
Table No.‐9
ACCOMPLISHMENTS & PROGRESS REPORT OF LEGAL AID
PROJECT:
Progress Chart from 1988 to 2012
Nepal Bar Association, Legal Aid Project ‐ Legal Aid in Litigation Cases
Year Cases Counseling
Legal
Seminars
Publication Dissimination
of IEC
Booklets
Paralegal Jail Legal
Literacy
of
Nayadoot Training Visit Education
1988 27 3 6 ‐ 3 ‐ ‐ ‐ ‐
1989 54 7 14 ‐ 5 10,000 ‐ ‐ ‐
1990 239 15 102 ‐ 6 3,000 ‐ ‐ ‐
1991 531 1032 128 3 6 20,000 ‐ ‐ ‐
1992 349 793 334 6 6 10,000 3 2 45
1993 454 297 269 3 5 22,500 8 8 13
1994 908 552 199 6 7 21,000 10 ‐ 147
1995 744 832 248 3 7 34,500 7 ‐ 40
1996 892 687 214 3 7 40,000 7 5 83
1997 923 892 184 2 7 5 7 17
1998 428 964 308 4 7 20,000 6 ‐ 51
1999 658 440 421 3 7 7,500 17 1 92
2000 855 466 407 4 7 18,443 8 7 109
2001 538 400 267 4 7 6 3 56
2002 534 412 389 5 7 13 5 110
2003 1232 848 344 4 7 8 7 136
2004 1039 1011 182 4 7 ‐ 3 9 40
2005 1333 714 238 4 7 ‐ 8 28 88
2006 1686 762 263 4 7 ‐ 8 92
2007 1193 871 188 5 4 15,000 8 45 100
2008 799 621 279 4 8 ‐ 11 54 72
2009 1078 128 1 57
2010 64 356 24 16
2011 141 26
2012 184 8
TOTAL 17,143 12,619 5,218 71 134 221,943 195 181 1,364
Source: NEBA, 2013
The above table shows that, in this period from 1988‐2012 the project has provided
Legal Aid in total 17,143 number of cases, 12,619 number of counseling, 5,218 Legal
Literacy Programs, 71 seminars, 134 issues of publication of NYAYADOOT,
dissemination about 2,22,000 booklets, 195 Para‐legal Training, 181 Jail visits and 1364
legal education program have been conducted by the project.
32. 32
E. PUBLICATION OF LEGAL AID MANUAL:42
Though the Legal Aid program has implemented more than 20 years but
there were no any manual formulated. So it was felt to formulate an
extensive manual to increase the efficiency of especially new Lawyers and
legal practitioners working in the legal aid field and to preserve the legal
rights of the indigent people of the country. The Legal Aid Manual has
been formulated and published in the year 2009 as a joint venture
between the Nepal Bar Association under the European Union's Conflict
Mitigation Programme II.
CHAPTER‐1 (Legal Skills and Practices): Guidelines for Handling Legal
Aid Cases, Code of Conduct, Introduction to Legal Aid in Nepal etc.;
CHAPTER‐2:Civil Cases; CHAPTER‐3:Specific Criminal Cases (Crimes
against Life &Human Welfare); CHAPTER‐4:Crimes against Women and
Children; CHAPTER‐5: Other Crimes; CHAPTER‐6: Family Cases;
CHAPTER‐7:Procedures; CHAPTER‐8: Registration of Personal
Events; CHAPTER‐9: Writs and Injunctions; CHAPTER‐10:Alternative
Dispute Resolution ‐ ADR; CHAPTER 11:IT Based Legal Research and
CHAPTER‐12: Miscellaneous
Access to justice is crucial and basic human rights, which enables
individuals to assert and protect many other human rights. The Legal
profession has a crucial role to play in ensuring Access to Justice by
providing legal services (legal information, legal advice, legal assistance
for handling administrative matters and court cases). Individuals of
limited means, who are not able to pay for legal services particularly
members of disadvantaged, vulnerable and marginalized groups, require
special institutional mechanism and services to ensure their access to
justice. This includes legal aid and Pro Bono Publico legal services.
The legal aid system must provide 1) adequate coverage that reaches all
appropriate target groups and 2) quality services. Coverage depends upon
effective delivery of legal services to all interested parties by providers
(institutions) that are well managed and have qualified staff. Quality is
mostly a function of the legal services provided by Lawyers and other
members of the legal profession. However it also depends greatly upon
the operations and management of providers that organize the delivery
42
Nepal Bar Association, Legal Aid Manual, Nepal Bar Association, Kathmandu, (2009)
33. 33
of legal services. Both coverage and quality depend upon sufficient
financing, without which no system can function optimally.43
Some strength and weaknesses of the legal aid by the Bar can be
summarized as follows:
Table No.‐10
Analysis of some Strength and Weaknesses of the Legal Aid by the NEBA
Strengths Weaknesses
1. Organized and Professional 1. Lack of Sustainability
2. Implementer of the Legal Aid Act‐
Secretariat of CLAC & DLAC
2. Lack of Seriousness in the Legal Aid
Cases by the Lawyers
3. Lack of strong system of monitoring
3.4 CIVIL SOCIETY ORGANIZATIONS
Civil Society movement in Nepal started and grew after restoration of
democracy in 1990. Democracy offered opportunities to the civil society
organizations to involve in different developmental activities in the
country as an important part of society. The civil society organizations
have been widely expanded on different disciplines in the society. Legal
discipline, as one of the fighters of democracy and vanguard of the civil
rights in the country became a part of the civil society movement in the
country since the early days of 1990. Many civil society organizations are
working in the areas of justice, human rights, legal aid and other
important areas of law but most of such civil society organizations is
excessively dependent to the donors. However the legal aid by the civil
society organization is day by day being reliable and popular in the
society and they are actively working in community level also.44
There are different Civil Society Organizations that have been providing
Legal Aid in different parts of the country, especially in support and
partnership of various donar agencies. Some major civil society
organizations working in the legal aid are,
43
Supranote 28, at 3
44
Supra Note, 18, at 34-35
34. 34
• Legal Aid Consultancy Center (LACC)
• Center for Legal Research and Resource Development (CeLRRd)
• Center for Victim of Torture Nepal (CVICT)
• Advocacy Forum
• Central Woman Legal Aid Committee (CWLAC)
• Law Associates Nepal etc.
Some strength and weaknesses of the legal aid by civil society
organization can be summarized as follows:
Table No.‐11
Analysis of some Strength and Weaknesses of the Legal Aid by Civil
Societies
Strengths Weaknesses
1. Holistic approach to legal aid (they
provide complete package of Legal
Aid from counseling to defending
and to implementation of a case)
1. Urban area centered
2. Effective‐ Competent and
professional legal aid lawyer
2. Donor Led
3. Specialized Service‐ Involved in
specific areas
3. Lack of Co‐ordination
4. Prompt service & Strong Network,
Familiar with local conditions
4. Underused by the targeted group
5. Financial Constrains ,
Implementation constraints and
populist, Negative public perception.
3.5 INDIVIDUAL LAWYER & PRO BONO LEGAL SERVICES
Individual Lawyer have also been providing legal aid to the poor,
vulnerable, marginalized, minors and women in their personal capacity.
Not all the Lawyers but only few of them are providing free legal aid.
Which is an appreciable initiative. Moreover Legal Aid by Private Lawyer
is completely subject to their wish and pleasure.45
45
Georgetown University Law Center, Url:https://www.law.georgetown.edu/careers/opics/pro-bono/what_is_pro_bono, at 1 (
Access date 4 Sep. 2016)
35. 35
'Pro bono' is a key source of legal assistance for the disadvantaged in the
absence of an adequately founded legal aid system. The term "pro bono,"
which is short for pro bono publico, is a Latin term that means "for the
public good." Although the term is used in different contexts to mean
"the offering of free services," it has a very specific meaning to those in
the legal profession. Rule 6.1 of the American Bar Association's Model
Rules of Professional Conduct, lays out the obligation of attorneys to
engage in pro bono. " Every lawyer has a professional responsibility to
provide legal services to those unable to pay. A lawyer should aspire to
render at least (50) hours of pro bono publico legal services per year.
In Australia, the USA, the UK, South Korea and and other countries,
there has been, in recent years, an explosion of interest in the provision
of free legal services by lawyers. This interest has been developed under
the label of Pro bono publico ( Literally 'for the publice good') or 'pro
bono' for short.
Pro bono legal services interact with and promote the public interest in
two ways. First, it is the public interest that low income and
disadvantaged people have greater access to legal services. Second , much
pro bono legal service provision relates to matters that have a public
interest quality.46
Pro bono legal aid work has been part of the tradition of the legal
profession in many countries ‐developed and developing. However
although pro bono work may supplement state founded legal aid services
the modern view is that it should not be regarded as a substitute for legal
aid schemes that pay for the services of lawyers. For instance in the UK ,
USA and France pro bono work has been done for many years. In
developing countries like South Africa, There has been a tradition of
Lawyers doing some pro bono work but this has not been mandatory in
many countries including Nepal but some countries have made pro bono
work compulsory for members of the legal profession.47
46
Jill Anderson and Gordon Renouf, "Legal Services for the Public Good", ALTERNATIVE LAW JOURNAL,Vol.28, No.1
(Feb. 2003), http://probonocentre.org.au/wp-content/uploads/ 2015/09/ forpublicgood.pdf, (4 Sept, 2016)
47
Supranote 13, at 457
36. 36
CHAPTER‐ IV
LEGISLATIVE MEASURES FOR LEGAL AID IN NEPAL
4.1 CONSTITUTIONS BEFORE 1990:
Constitution is regarded as the mirror of socio‐economic structure of the
country. Embodying, the national development and cultural up‐liftment,
constitution draws the general calculation about the tools, ideas and
methods to attain cherished constitutional goal as socio‐economic
justice. Law is the means to social ends and every part of it has constantly
to be examined for its purposes and effort and to be judged in the light of
both and their relation to each other.
The first democratic constitution of Nepal after the Rana Regime, Nepal
Interim Government Act, 2007 had no provision regarding right to be
defended by counsel. The next constitution of 2015 on its article 3 Sub‐
article 6 under the heading of Fundamental Rights declared that every
one arrested will have right to take an advice and defended by counsel of
his choice. Similar kind of provision was incorporate in sub‐ article 6 of
article 11 of constitution of Nepal 2019.
4.2 CONSTITUTIONS AFTER 1990:
4.2.1 CONSTITUTION OF THE KINGDOM OF NEPAL, 1990
After the thirty years long party less rule collapsed under the weight of
popular discontent. As a result, the constitution of the kingdom of Nepal
1990 promulgated as a fundamental law of the land. The constitution had
guaranteed the fundamental right of the people in Article 11(1) which had
also guaranteed both the right to be “ Equal before the law” and the right
to “ Equal protection of the laws.”
The preamble of the constitution of the Kingdom of Nepal, 1990 had
promised justice to all citizens and broadly divides “Justice” into three
basic categories. Social justice implies that all citizens must be treated
equally, irrespective of their status in society as a result of a accident of
37. 37
birth (which determine race, caste, religion, sex, title, and so no).
Economic justice requires that rich and poor people are to be treated
alike and that efforts are made to bridge any gaps between them. Political
justice entitles all citizens to an equal share in the right to participation
in the political process without any distinction of race, cast, creed,
religion or place of birth.48
.
Along with this, the constitution had explicitly mentioned about the
promotion of legal aid system. Art 26(14) of the part IV of the
constitution had given recognition to legal aid. It obliges the state to
pursue a policy of providing free legal aid to indigents persons. However,
this provision is simply a direction to the state. No one can go to court in
order to enforce this right. Besides, the Legal Aid Act 2054 had been
enacted in this regard.
4.2.2 INTERIM CONSTITUTION OF NEPAL, 2007
The Interim Constitution of Nepal 2063 (2007) under part 3 (Fundamental
Rights) in article 24 (1‐10) the following rights relation to justice and in
sub‐article 10 free legal aid has been stated as a constitutional rights as"
Any incapable party shall have the right to free legal aid, as provided in
law."
These constitutional provisions regarding legal aid provides the policy of
the state to secure justice for all by pursuing a policy of providing free legal
aid to indigent persons for their legal representation in keeping with the
principle of the rule of Law.
4.2.3 CONSTITUTION OF THE KINGDOM OF NEPAL, 2015
In Part‐3 of the constitution of Nepal 2015 has guaranteed fundamental
rights from articles 16 to articles 46 and Duties of the Citizens in article
48. Some important such fundamental rights are art 16‐ Right to live with
dignity, art 17‐ Right to freedom, art 18‐ Right to equality, art 20‐Rights
relating to justice, art 24‐ Right against untouchability and
48
Surya P.S. Dhungel & Murgatroyd Chirs et. all, Commentary on the Nepalese constitution, DeLF, Lawyer's Inc.,
Kathmandu. P.52 (1998)
38. 38
discrimination, art 26‐ Right to freedom of religion, art 29‐Right against
exploitation, art 31‐ Right relating to education, art 32‐Right to language
and culture, art 40‐ Rights of Dalit, art 42‐ Right to social justice, art 43‐
Right to social security
In Article18: Right to equality: All citizens shall be equal before law. No
person shall be denied the equal protection of law and no discrimination
shall be made in the application of general laws on grounds of origin,
religion, race, caste, tribe, sex, physical condition, condition of health,
marital status, pregnancy, economic condition, language or region,
ideology or on similar other grounds. The State shall not discriminate
citizens on grounds of origin, religion, race, caste, tribe, sex, economic
condition, language, region, ideology
or on similar other grounds.
In Article 20 (10) Rights Relating to Justice: "Any indigent party shall have
the right to free legal aid in accordance with law".
20. Rights relating to justice:
(1) No person shall be detained in custody without informing him or her
of the ground for his or her arrest.
(2) Any person who is arrested shall have the right to consult a legal
practitioner of his or her choice from the time of such arrest and to
be defended by such legal practitioner. Any consultation made by
such person with, and advice given by, his or her legal practitioner
shall be confidential. Provided this clause shall not apply to a citizen
of an enemy state.
(3) Any person who is arrested shall be produced before the adjudicating
authority within a period of twenty‐four hours of such arrest,
excluding the time necessary for the journey from the place of arrest
to such authority; and any such person shall not be detained in
custody except on the order of such authority. Provided that this
clause shall not apply to a person held in preventive detention and to
a citizen of an enemy state.
(4) No person shall be liable for punishment for an act which was not
punishable by the law in force when the act was committed nor shall
39. 39
any person be subjected to a punishment greater than that prescribed
by the law in force at the time of the commission of the offence.
(5) Every person charged with an offence shall be presumed innocent
until proved guilty of the offence.
(6) No person shall be tried and punished for the same offence in a court
more than once.
(7) No person charged with an offence shall be compelled to testify
against himself or herself.
(8) Every person shall have the right to be informed of any proceedings
taken against him or her.
(9) Every person shall have the right to a fair trial by an independent,
impartial and competent court or judicial body.
(10) Any indigent party shall have the right to free legal aid in accordance
with law.49
4.3 LEGAL AID ACT, 199750
Preamble of Legal Aid Act: Whereas, it is expedient to make legal
provisions regarding legal aid for those persons who are unable to protect
their legal rights due to financial and social reasons to provide for equal
justice to all according to the Principle of Rule of Law.
Sec.2‐Definitions (a) "Legal Aid" means Legal Aid to the indigent
person under this Act and the term also includes counseling and other
legal services such as correspondence pleadings, preparation of legal
documents and proceedings in the courts or offices on behalf of indigent
person.
49
THE CONSTITUTION OF NEPAL, (2015)
50
Legal Aid Act, (1997)
41. 41
(a) Law and Justice Minister ‐ Chairman
(b) Chairperson, Nepal Bar Council ‐ Member
(c) President, Nepal Bar Association ‐ Member
(d) One Legal expert nominated from Central Committee ‐ Member
(e) Secretary Nepal Bar Association ‐Member Secretary
(2) The tenure of member nominated pursuant to Sub‐section (1) of
Clause (d) shall be of three years.
Sec 7. Constitution, functions, duties and powers of District Legal
Aid Committee:
(1) The District Legal Aid Committee for each district shall be constituted
comprising of the following members to provide legal aid to indigent
person at the district level and also list a panel of lawyers for the
purpose of providing legal aid to the indigent person.
(a) Government Attorney of the Government Attorney office
where the Appellate Court located, or District Government
Advocate where such Appellate Court is not located ‐ Chairperson
(b) President of superior Bar Unit among the Bar Association Units
at the District Provided that, President of the District Bar
Association shall be the member for the purpose of Kathmandu
District. ‐ Member
(c) Two lawyers nominated from District Committee from among
the lawyers of the district ‐ Member
(d) Secretary of Superior Bar Unit among the Bar Association Units
located in that District Provided that, Secretary of District Bar
Association shall be the member‐secretary in case of Kathmandu
District. ‐ Member Sec.
(2) The tenure of the members pursuant to part (c) of sub‐section (1) shall
be of 3 years.
42. 42
Sec. 8. Legal Aid Fund : (1) There shall be a fund for the functioning of
the Legal Aid and the fund shall have the following money:
(a) Money received from Government of Nepal as grant.
(b) Money received as grant, aid, subscription from an individual,
Association or institution.
(c) Money received from other sources.
However many provision of Leal Aid Act, 1997 is of discretionary type. So
absolute justice may not be expected. The Act has some basic provisions
regarding Legal Aid but it lacks many prominent provisions being
embodied in it. The act is incomplete and incomprehensive since it has
not even covered the sole concept of legal aid. It is not a living law but
merely a positive law that seems unsuccessful achieving the goal as
expressed in its preamble.
(A) AMENDMENT IN THE LEGAL AID ACT, 1997:
The following provisions of the Legal Aid Act 1997, has been amended by
Some Nepal Acts Amendment Act in 1999 and 2nd
Amendment in 2015 as
follows:
In sec 2. after (a) the following (a1) has been added: "Indigent Person"
means the person having less than the specified annual income or gender
violence or victim of armed conflict.
In spite of the Section 3 sub section (1) the following sub section (1) has
been made: The indigent person can be entitled to Legal Aid under this
Act.
4.4 LEGAL AID RULES, 199851
Rule.3. Application has to be submitted to be entitled to Legal Aid:
(1) A Nepalese citizen who intends to be entitled to legal aid pursuant to
51
Legal Aid Rules, (1998)
43. 43
the Act or these Rules shall submit an application in the committee in
the format as prescribed by Schedule‐1.
(2) The application submitted pursuant to Sub‐rule (1) shall attach a
recommendation made by, in the format prescribed by Schedule‐ 2, in
case of Village Development Committee by Chairperson or Member or
Secretary of the concerned Village Development Committee and in
case of municipality by chairperson of the concerned ward.
(3)Notwithstanding anything contained in Sub‐rule (3), if the person
intending to be entitled to Legal Aid does not know to fill the
application form or is unable to attend in the committee's office to fill
the application form, then other person who is trusted by him/her
shall submit an application in the committee.
(4) If the application submitted pursuant to Sub‐rule (3), the committee's
employee shall register the application after making required inquiry
according to the provisions of the application form and also attaching
the recommendations made pursuant to Sub‐rule (2).
(5)While the application is submitted for the registration in the
committee, if there are any documents which verifies the detailed
mentioned in the application, such document also has to be submitted
by the applicant.
Rule 4 Examination of the Application : The member secretary shall
make an examination on the application registered pursuant to Rule 3 and
the attached documents herewith and shall submit it in the meeting of the
committee.
Rule 5 Decision of the of the committee and information:
(1) In relation to the application submitted in the meeting of the
committee pursuant to Rule 4, the committee shall make a decision on
whether to provide legal Aid or not subject to the provisions of the Act,
these Rules and policies and directives determined time and again by
the central committee.
(2) Regarding the decision made pursuant to Sub‐rule (1), the nature of the
44. 44
applicant's case, the limitation for the registration of a case or the
limitation for the reply in a case shall be considered and decision have
to be made within the Forty Five days since the date of application.
(3) The information on decision made by the committee pursuant to Sub‐
rule (2) shall be provided to the concerned applicant.
Rule 6 Legal Aid shall not be entitled: (1) The committee shall not
entitle any person who has the Annual income more than 40,000
Rupees, for legal aid.
(2) The committee shall not entitle the convicted party of the
following cases, for legal aid:‐
(a) Under the Espionage Act, 2018 (1962),
(b) Under the Human Trafficking (Control) Act, 2043,
(c) Cases under Ancient Monument Preservation Act, 2013,
(d) Cases which has the punishment under Chapter on Rape of the
Country Code (Muluki Ain),
(e) Cases under Prevention of Corruption Act, 2017 and
Commission for the Investigation and Abuse of Authority Act,
2048,
(f) Cases under the Revenue Leakages Control Act, 2052,
(g) Cases under Drug (Control) Act, 2033,
(h) Other cases prescribed on time and again by central committee.
Rule 7 The expenditure for Legal Aid have to be reimbursed :
(1) If any person receives some property or economic benefit in
consequence of the entitlement of Legal Aid, such person shall
reimburse the expenditure made by the committee, in the course of
providing Legal Aid to him/her.
(2) During the reimbursement of the expenditure pursuant to Sub‐rule
(1), only the amount at the rate of Ten percent of the total property or
economic benefit shall be reimbursed.
In the Legal Aid Reles, 1998; There is no any necessary criteria or the pre‐
conditions of the people or situations mentioned to entitle the Legal
Assistance. Rule 3, 4 and 5 seems to be impractical and the Rule 6(1) has
the provision that any person shall not entitle Legal Aid who has the