There happens to be just one ourt appointed attorney in Kathmandu District Court where three dozen benches are formed every day
KATHMANDU, JUNE 27
Article 20 of the constitution states indigent party shall have the right to free legal aid in accordance with the law. This makes it a fundamental right all indigent parties should be able to enjoy.
Free legal aid also enhances people's access to justice, but in practice many people are unable to avail free legal aid provided through two government mechanisms - court appointed attorneys or district legal aid provider. Executive Director of Public Defender Society of Nepal Ajay Shankar Jha said legal aid provided by court-appointed lawyers or the district legal aid was just for the sake of legal aid.
"There is just one court appointed attorney in Kathmandu District Court where almost three dozen benches are formed everyday. We can imagine how busy the court attorney is in Kathmandu," he said and added that a busy court attorney cannot give quality service to service seekers. "We know that court attorneys are told to represent defendants accused of a crime just for a few minutes before the hearing begins. If a court attorney does not have time to study the case and do some research to prepare defence, he/she can not provide quality service to defendants and this is the case in most of the courts today," Jha added. A large number of cases are adjudicated by quasi-judicial bodies such as district administration offices and forest offices, but in those cases, there is no formal mechanism to provide free legal aid to the defendants.
As far as district legal aid committees are concerned, they lack human resources to provide quality service to service seekers.
Government legal aid provider in Rupandehi district Bishnu Bhusal told THT that he had almost 300 cases to represent and everyday he had four to five cases where he appeared before the court for oral submissions. "I have to manage everything - running errands for my office, keeping the records of expenses and case files, writing cases on behalf of the indigent parties, and representing them in the court," Bhusal said.
Legal aid regulation, however, states that legal aid shall not be provided in narcotic drugs, corruption, rape, and revenue leakage cases. The regulations also state that a person who has got legal aid will have to pay the money spent for him if he gets economic benefit from the case. Those who want to seek legal aid through district legal aid committees have to go through a cumbersome process.
As per Legal Aid Regulation, service seekers have to get a recommendation letter from their respective ward offices certifying that their annual income is less than Rs Rs 40,000.
"It is unwise to think that only those people that earn less than Rs 40,000 a month should get free legal aid. Even a person who earns Rs 40,000 a month cannot easily afford lawyers' fees and other expenses during court proceedings," Jha said.
Bhusal said the Rs 40,000 annual income rule is applied under the Legal Aid Regulation of 1997 and even after 26 years the same provision is applicable.
"A poor woman, who has been evicted from her husband's house, approaches with three or four small kids. If she has to file a case of alimony, partition, and seek divorce from her husband, she needs to pay almost Rs 2,700 court fees. How can such a woman pay this amount? Bhusal wondered. He said free legal aid should be made available to all service seekers irrespective of their income level.
Jha said the government needed to overhaul the legal aid procedures to ensure access to justice. "In those districts where there are not too many cases, the court can pay the court attorney on case wise basis and in those districts where there is huge caseload, the court should be allowed to hire as many court attorneys as required," he said. Jha also said the best thing would be that the government provide funds to NGOs to represent indigent parties in the court.
A version of this article appears in the print on June 28, 2023, of The Himalayan Times.
