legal aid system in nepal
TRANSCRIPT
1
Analytical Study on
Legal Aid System in Nepal
Presented by: Chandra Shekhar Khadka
3 year LL.M.1st year Roll No.11
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CONTENTS
Preface
Acknowledgement
Abbreviations
CHAPTER- I: INTRODUCTION
Meaning, Definitions & ImportanceStatement of the problemObjective of the studyMethodology of the studyReview of literatureSignificance of the studyScope and limitations of the studyOrganization of the study
CHAPTER-II: HISTORICAL BACKGROUND OF LEGAL AID
CHAPTER-III: SOURCES OF LEGAL AID IN NEPAL
CHAPTER IV: LEGISLATIVE MEASURES FOR LEGAL AID IN NEPAL
CHAPTER V: CONCLUSION AND RECOMMENDATIONS
BIBLIOGRAPHY
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CHAPTER- I INTRODUCTION
According to Black Law Dictionary :
Legal Aid is defined as “ The Free or inexpensive legal service provided to those who cannot afford to pay full price, Legal Aid is used. Administrated locally by a specially established organization” .
According to Legal Aid- Handbook, Legal Aid Board, Sweer and Maxweu, London:
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” It is mentioned in the Legal Aid Handbook that Legal Aid could be provided in there kinds they are; Legal Advice or Assistance: This covers advice and help with any Legal Problems.
Civil Legal Aid: This covers representation in a court proceedings including assistance in the steps preliminary or incidental to proceedings.
Criminal Legal Aid: Assistance for Criminal Offenders
The Legal Aid Act, 1997 (Nepal) Defined the term Legal Aid as;
"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.
However, Legal Aid has been defined in different literatures; the objective of Legal Aid has always to provide free legal assistance to the indigent people especially who are physically, socially and economically backward in the society and cannot afford to pay for the legal counsel including preparation of legal documents, pleadings, making representation in the courts or judicial authorities for defending interests.
The above table shows that; more that two third (83%) of the population is living in rural and remote areas, illiteracy is about 35 % , about 3% unemployment, very low per capita income i.e. US$ 717 only and 25.2% population living in absolute poverty reveals the present poor socio-economic conditions of the country.
According to, The UNDP- Nepal Human Development Report, 2014 In Nepal 41.4% of the population are multidimensionally poor while 18.1% are near the multidimensional poverty. The intensity of deprivation is 47.4% . The contribution of deprivations in each dimension to overall poverty complete a comprehensive picture of people living in poverty in Nepal. The HDI value; which is an indicator of Socio- Economic Development; Nepal has ranked 145th among 187 countries. The report has urged the governments to commit to the universal provision of basic social services and social protection to build resilience, especially for the poor and other vulnerable groups. In such socio-economic context of our country, the Legal Aid should be considered as one of the important duty and responsibility of the Government by ensuring that; a comprehensive legal aid system is in place which is accessible, effective, sustainable and credible also ensuring that legal aid is provided to the persons living in rural, remote and economically and socially disadvantaged.
NEED AND IMPORTANCE OF LEGAL AID IN NEPAL
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 or in any basis. 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 society. If justice is denied, law is said to be non-prevailing. So the effective Legal Aid is an effective means in the realization of principles of justice.
Source: CBS, Statistical Year Book of Nepal, 2013
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STATEMENT OF THE PROBLEM
Nepal has been facing major socio-economic problems and majority of the population living in rural and remote areas are illiterate and disadvantaged with problems of poverty; such majority of population are unaware 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 as guaranteed by the constitution. Are the laws effective and sufficient to provide the justice to the indigent people?
The legal aid has been considered as a passive side of judicial activities. 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. Such programs seems 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. Are the indigent and needy people targeted for the legal aid; not being deprived of the equal protection of law and judicial remedy and getting justice and benefits by Legal Aid system and its programmes ?
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. Are they efficient and effective to provide the qualitative service for the indigent people?
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CHAPTER- I INTRODUCTION Contd...
1.3 OBJECTIVES OF THE STUDY
The objective of the study would be as follows:
To identify the concepts of Legal and Legal Aid System in Nepal.
To identify the sources or agencies working for Legal Assistance and to analyze the their strengths & weaknesses.
To assess the law related to legal aid in Nepal and to analyze strength and weakness of those laws.
1.4 METHODOLOGY OF THE STUDY Though the multiple research method have been employed; this study is somewhat descriptive as well as analytical including some facts and information about the proposed topic. 1.5 REVIEW OF LITERATURE The literatures reviewed during this study were constitution, Act and rules concerning the said topic, some books, periodicals, legal documents and articles published in various magazines. The literature reviewed during this study has been enlisted in the bibliography.
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CHAPTER- I INTRODUCTION Contd....
1.6 SIGNIFICANCE OF THE STUDY
To provide concept and knowledge of legal aid and legal aid system in Nepal. To access the current problems and prospects of Legal Aid in Nepal and to provide some information to the concerned authorities so that it would be helpful to review the policies and programs planned for the access of free legal aid and Legal Literacy Programs.
1.7 SCOPE AND LIMITATIONS OF THE STUDY This study is mainly based on Nepalese context and it attempt to assess the current status, problems and prospects of Legal aid system in Nepal. The nature of study is based on the available primary or secondary data and is limited to “Legal Aid System in Nepal”. Even though all efforts have been made to give reliable and valid results, basically this study has been confined with the Nepalese context, Constitution, Legal Aid Act and Rules. Because of the limited source and time, the results of this study might not be representative, So this study cannot be generalized beyond its coverage and no hard comparison will be possible with any other context. 1.8 ORGANIZATION OF THE STUDY The report of this study has been organized in the following five chapters; First chapter is the introductory chapter Second chapter is about the History of Legal Aid in some of the other countries and Nepal. The Third Chapter is about the Sources of Legal Aid in Nepal. The legislature measures of legal Aid in Nepal are discussed in the Fourth chapter. Chapter five is the conclusion and recommendations of the study and Bibliography
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CHAPTER- II HISTORICAL BACKGROUND OF LEGAL AID
The earliest Legal Aid movement appeared to be in the year 1851 in France, 1944 in Britain. The concept of legal aid was emerged and flourished all over the world, only after the global impact of second word war and the formation of UNO and it’s Manifesto of Universal declaration of Human Rights in 1948. In 6-12 act of that manifesto; the provision of legal equality and legal security had been mentioned. After then, different countries in the world had ratified the universal declaration of human right consequently they started to formulate their act and laws accordingly.
In Britain Legal Aid and Legal Advice Act, 1949 and Legal Aid Solicitors Act, 1949 in Scotland and in other countries like USA, Germany, France, Norway, Netherlands, Newzeland etc, had also formulated Legal Aid Acts in 1960s.
If we see the history of Legal Aid in south Asia, India has the oldest record; 1952. Sri Lanka Incorporated Law Society of Ceylon in 1958, Legal Practitioners and Bar Council Act 1973 in Pakistan, free legal aid program in Bangladesh in 1984 were promulgated and enacted.
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CHAPTER- II HISTORICAL BACKGROUND OF LEGAL AID Contd..
The concept of legal aid was emerged only after the Rana Regime in Nepal and after being the member of UNO had ratified the Manifesto of The Universal declaration of Human Rights. 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 (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/her choice. In addition to this, the system of Stipendiary Lawyer (Baitanik Wakil) was also enacted in 2015 by the decision of the full court of Pradhan Nyayalaya (Supreme court at that time). Similar kind of provision was incorporate in Article 11(6) of 2019 constitution
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 other past constitutions. Which had guaranteed the fundamental right of the people. Along with this, the constitution has explicitly mentioned about the recognition and promotion of legal aid system in Article 23(14). Then, the Legal Aid Act-1997 and Legal Aid Rules, 1998 were formulated and enacted.
The Interim constitution of Nepal, 2007 has guaranteed fundamental rights of the people in Part III under the Fundamental Rights. "Right to Equality" has been stated in article 13(1-4). Article 24(1-10) has provisions of "Right relating to Justice" and the promotion of Legal Aid System has been mentioned which has given the recognition to Legal Aid. In Article 24(10) which says "Any incapable party shall have the right to free legal aid, as provided in law.“
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CHAPTER- II HISTORICAL BACKGROUND OF LEGAL AID contd....
The Nepal Bar Association was established in 21st December 1956 but for the first time "Janakpur Bar Association" had entered into an agreement to provide free legal assistance in the year 1986.
Norway Cooperation with Nepal started since 1960's and formalized in 1973. The agreement of mutual cooperation between NBA & NEBA was signed by Mr. Alf Skogly (NBA) and Mr. Laxman Prasad Aryal (NEBA) on 27th September 1987. The agreement was covered the following major areas:
Legal Aid Scheme Regular Publication of Nepal Bar Journal (Nyayadoot) Special measures to secure legal aid for woman, and Fellowship, seminars and study facilitation
The collaboration began on 1st January 1988 for the period of initial 5 years and renewed continuously till now. NEBA in co-operation with NBA (Twinning co-operation) had formally launched Legal Aid Programs in the country since 1988. During this 25 years period , the collaboration aimed at institutionalization of legal aid system, promotion of human rights, empowerment of the people in legal knowledge and increased access to justice. Central part of the endeavor under the project remain as legal aid.
The objective of the legal aid was to provide free legal aid to the weaker, poorer and disadvantaged section of the society. Woman remained as key target groups as woman in Nepal during the project period were facing problems associated with illegal abortion, infant killing, hindrance in property rights. A total of 17,143 cases that 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.
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CHAPTER- II HISTORICAL BACKGROUND OF LEGAL AID contd....
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 Committees (DLACs) 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 running as Access to Justice (A to J) Project.
THE ORGANIZATION STRUCTURE OF THE LEGAL AID PROJECT (1988-2009):
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CHAPTER –III SOURCES OF LEGAL AID IN NEPAL:
The are four basic and important sources of Legal Aid, which may be categorized as follows;
1. GOVERNMENT OF NEPAL
2. COURTS
3. BAR ASSOCIATION
4 CIVIL SOCIETY ORGANIZATIONS
. Other - INDIVIDUAL LAWYER
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SOURCE S OF LEGAL AID 1. GOVERNMENT OF NEPAL
Government of Nepal is one of important source of providing Legal Aid in Nepal. A Central Legal Aid Committee (CLAC) and District Legal Aid Committees (DLACs) constituted under the Legal Aid Act, 1997 for making necessary arrangements to provide legal aid to the indigent people of the country; are instrumental in providing legal aid in the country. DLACs had been implemented by the Government of Nepal in different phases as follows:
Phase
Date of Imple-
mentation
No. of Distric
ts Name of DLACs
First 9 Nov, 1998 5 Sunsari, Dolkha, Bara, Palpa and Banke
Second
19 Feb., 2000 3 Sarlahi, Dhading and Gulmi
Third 14 April 2004 5 Dhanusha, Makawanpur, Jhapa,
Kaski, Kanchanpur
Four16 Dec,
2003 10Parsa, Kavrepallanchowk, Morang, Syangja,Kailali, Mahottari, Rupandhehi, Doti, Ilam and Dang
Five 17 Dec, 2004 10
Rautahat, Sindhupallanchok, Saptari, Tanahu, Bardia, Siraha, Kapilbastu, Darchula, Dhankuta and Surkhet
Six 17 July, 2006 10
Panchthar, Udyapur, Sindhuli, Chitwan, Nawalparasi, Baglung, Parwat, Ardhakhanchi, Pyuthan and Dandeldhura
Seven15 Jan, 2008 10
Taplejung, Bajhang, Nuwakot, Lamjunj, Myagdi, Gorkha, Ramechhap, Jumla, Rolpa, Baitadi
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.
Source: Legal Aid Manual, 2009, Nepal Bar Association
Strengths Weaknesses
1. Credibility- as it is carried with the view to translate the aspirations of the constitution in practice.
1. Limited Scope
2. Unrealistic Ceiling for getting legal aid
2. Sustainable 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's7. Lack of Involvement of
Experienced Lawyers8. Inherent Shortcoming in the
acts- It is not an umbrella act, faulty composition of committees, ceiling and reimbursement etc. provisions seems impractical and unrealistic.
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SOURCE S OF LEGAL AID 2 . COURTS
All the courts provide legal aid through Stipendiary Lawyer (Vaitanik Wakil)
The provisions related to the Stipendiary lawyer are incorporated in the Rules of all tiers of courts, In the Supreme Court Rules, 1992, Appellate Court Rules, 1991 and District Court Rules, 1995.
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.
Presently there are two Stipendiary lawyers in the Supreme Court, one in each Appellate Court and one in each District Court. At the beginning the stipendiary lawyers were paid 100 Rupees per month and this remuneration was equal to the Section Officer at that time. Later, the remuneration was increased to 400 rupees and until 1999 they were paid 1000 rupees, later which was increased to 2000 rupees
Courts
No. of Stipendi
ary Lawyer in Each Court
Period of Appointment
(Year)
Current Monthly Remuneration
Supreme Court 2 1 to 3
As Equivalent to Nepal Government Under Secretary- Nrs.27,610/-
Appellate Court 1 1
As Equivalent to Nepal Government Section Officer Nrs.24,900/-
District Court 1 1
As Equivalent to Nepal Government Section Officer Nrs.24,900/-
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
4. 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.
Source: Telephonic Interview with a Stipendiary Lawyer of Appellate Court Patan, 2015
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SOURCE S OF LEGAL AID 3. BAR ASSOCIATION
Nepal Bar Association is one of the important and major 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. 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; which is implemented in Nepal since 1st January, 2010 in co-operation with the Norwegian Bar Association with the funding of NORAD.
The objectives of A to J Project are; 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 DLACs 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.The Principal Targeted Groups or Beneficiaries of A to J Project are;Alll poor and indigent Nepali people including Women and Children, Dalit, Janajati, Madheshi and marginalized community who cannot afford the cost of legal counsel.
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Year Case Counseling Legal Literacy Seminars Publication of
Nyayadoot
Dissimination of IEC Booklets
Para-legalTraining
JailVisit
LegalEducation
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 451993 454 297 269 3 5 22,500 8 8 131994 908 552 199 6 7 21,000 10 - 1471995 744 832 248 3 7 34,500 7 - 401996 892 687 214 3 7 40,000 7 5 831997 923 892 184 2 7 5 7 171998 428 964 308 4 7 20,000 6 - 511999 658 440 421 3 7 7,500 17 1 922000 855 466 407 4 7 18,443 8 7 1092001 538 400 267 4 7 6 3 562002 534 412 389 5 7 13 5 1102003 1232 848 344 4 7 8 7 1362004 1039 1011 182 4 7 - 3 9 402005 1333 714 238 4 7 - 8 28 882006 1686 762 263 4 7 - 8 922007 1193 871 188 5 4 15,000 8 45 1002008 799 621 279 4 8 - 11 54 722009 1078 128 1 572010 64 356 24 162011 141 262012 184 8
TOTAL 17,143 12,619 5,218 71 134 221,943 195 181 1,364
Source: Legal Aid Project, 2012 ( NEBA Publication Boosting Access to Justice for Needy People Mar, 2013 )
NEPAL BAR ASSOCIATIONS (NEBA- NBA) TWINNING CO-OPERATION) LEGAL AID PROGRAM IN THE PROMOTION OF LEGAL AID & LEGAL LITERACY
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.
Progress Chart from 1988 to 2012Nepal Bar Association, Legal Aid Project - Legal Aid in Litigation Cases
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SOURCE S OF LEGAL AID 3. BAR ASSOCIATION Contd.....
PUBLICATION OF LEGAL AID MANUAL: Though the Legal Aid program has been implemented in the country 20 years before; there were no any manual formulated. So it was felt to formulate an extensive manual to increase the efficiency of specially 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.
Chapters Contents
ONE (Legal Skills and Practices):
Guidelines for Handling Legal Aid Cases, Code of Conduct, Introduction to Legal Aid in Nepal, Managing the Practice of Law, Client Interviewing and ,Counseling, Trauma Counseling, Legal Opinions, Paralegals, Preparation & Presentation, Drafting Skills .Witness/Cross Examination
Two Civil Cases
Three Specific Criminal Cases (Crimes against Life &Human Welfare
Four Crimes against Women and Children
Five Other Crimes
Six Family Cases
Seven Procedures
Eight Registration of Personal Events
Nine Writs and Injunctions
Ten Alternative Dispute Resolution - ADR
Eleven IT Based Legal Research
Twelve Miscellaneous
Strengths Weaknesses
LEGAL AID BY THE BAR
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
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SOURCE S OF LEGAL AID 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.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 donor agencies. Some major civil society organizations working in the legal aid are, 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.
OTHER SOURCE- INDIVIDUAL LAWYER: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.
Strengths Weaknesses1. 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 group5. Financial Constrains , Implementation constraints and populist, Negative public perception.
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CHAPTER- IV LEGISLATIVE MEASURES FOR LEGAL AID IN NEPAL
CONSTITUTION OF THE KINGDOM OF NEPAL, 1990
The preamble of the constitution of the Kingdom of Nepal, 1990 had promised justice to all citizens and broadly divides “Justice” into 3 categories they were Social justice , Economic justice and Political justice. In Article 26(14) provided as the policy of the state" the state shall, in order to secure justice for all, pursue a policy of providing free legal aid to indigent persons for their legal representation in keeping with the principle of the rule of Law; The Legal Aid Act, 1997 & Legal Aid Rules-1998 had been enacted.
INTERIM CONSTITUTION OF NEPAL, 2007
In the Preamble of the present Interim constitution of Nepal, 2007 says "Expressing our full commitment to democratic values and norms including the competitive multi-party democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, complete freedom of the press, independent judiciary and concepts of the rule of law; Guarantee the basic rights of the people of Nepal to make a constitution for them on their own and to take part in a free and fair election to the Constituent Assembly in an environment without fear.
The Interim constitution of Nepal, 2007 has guaranteed fundamental rights of the people in Part III under the “Fundamental Rights” the "Right to Equality" has been stated in Article 13(1-4)
The Interim Constitution of Nepal 2063 (2007) under part 3 (Fundamental Rights) in article 24 (1-10) the rights relationg to justice and in sub-article 10 free legal aid has been stated as a constitutional rights which says" Any incapable party shall have the right to free legal aid, as provided in law."
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CHAPTER- IV LEGISLATIVE MEASURES FOR LEGAL AID IN NEPAL Contd.....
LEGAL AID ACT, 1997: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 3. Person authorized for Legal Aid: (1) A person having less than the specified annual income shall only be entitled to Legal Aid under this Act. (2) The Concerned Committee shall be authorized to grant or deny Legal Aid to a particular person. (3) The Concerned Committee while deciding for Legal Aid shall consider and discourage unnecessary harassment to other and tendency towards litigation on baseless ground.Sec 4. Reimbursement of the expenses of Legal Aid: (1) A Party in Legal Aid has to reimburse the expenses of the concerned committee as prescribed to the Committee if he/she receives any property or economic gain in consequences of receiving Legal Aid. Provided that, if it is found unfair to the party for reimbursement, the concerned committee shall waive partially or fully the expenses to the party. (2) The court in its order may direct the party in litigation for reimbursement of expenses to the concerned committee on the expenses made in course of legal aid and such direction shall be implemented in accordance with prevailing laws.Sec. 8. Legal Aid Fund : (1) 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.
CHAPTER- IV LEGISLATIVE MEASURES FOR LEGAL AID IN NEPAL Contd.....
LEGAL AID RULES, 1998:
Rule.3 (Sub Rule 1-5) Application has to be submitted to be entitled to Legal Aid:
A Nepalese citizen who intends to be entitled to legal aid shall submit an application in the committee in the format as prescribed with attaching a recommendation made by, in the format prescribed, 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.
Rule-4 Examination of the Application : The member secretary shall make an examination on the application and the attached documents shall submit it in the meeting of the committee.
Rule 5 Decision of the of the committee and information: The committee shall make a decision on whether to provide legal Aid or not. The decision have to be made within the 45 Five days since the date of application and the information of decision made shall be provided to the concerned applicant.
Rule 6 Legal Aid shall not be entitled: 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 General 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 : 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. During the reimbursement of the expenditure only the amount at the rate of Ten percent of the total property or economic benefit shall be reimbursed.
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CHAPTER- IV LEGISLATIVE MEASURES FOR LEGAL AID IN NEPAL Contd.....
SOME OTHER RELEVANT LAWS RELATED TO PUBLIC WELFARE
ARE;The Human Rights commission Act, 2053 has also been given responsibility to provide the justice to the backward and the disadvantaged groups. The some other acts related to public welfare are;Civil Rights Act-2012,Essential Services operation act-2014,Disable Protection and welfare act-2039,Public Security Act- 2046Labor Act-2048Child Right Act-2048,,Social Welfare Act-2049,Environment Protection Act-2053Consumer Protection Act-2054,Senior Citizen Act-2063,National Woman Commission Act-2063,Poverty alleviation fund act-2063,Self Governance Act-2064, etc.
Are some appreciated illustrations and welfare legal mechanism to demonstrate the will of the Nepalese legislature. But making bulk of such welfare legal mechanism might not be the tools or ends for the real protection of the public will & rights, especially for the indigent people of the society. So, the state should consider; the people who have no access to justice as the last beneficiary of justice only then the principle of justice shall be realized.
CHAPTER- IV CONCLUSION
The present legal provisions in context of Legal Aid are also not sufficient to provide the justice to the indigent people. So it seems very difficult to promote effective legal aid program due to diverse geographical setting and diverse level of education, awareness and economic and social conditions of the people living in different geographical areas. Furthermore the services of free Legal Aid run by different institutions/ organizations has also lots of shortcoming, especially in mountainous and remote hill districts, and those districts also lack sufficient number of lawyers as well. The appointment of Stipendiary Lawyer had been implemented since a long time back to provide free legal aid to the indigent people, but due to lack of competitiveness, unspecific knowledge about the specified subject, short period of appointment and many other limitations, the goal of the Legal Aid cannot be achieved by such incompetent manpower. So some group of peoples specially like children, women, physically disabled, old people and other weaker sections of the society might became the victim of injustice. The Legal Aid Act-1997 lacks many prominent provisions being embodied in it. The Act seems very precise, incomplete, unscientific and inadequate. In the Legal Aid Rules, 1998; There are no any basic criterias or the pre-conditions (of the people or situations) have been mentioned to entitle for 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 annual income more than 40,000 Rupees; in present context this ceiling is very unreasonable and impractical. Rule 6(2) has categorized some of the cases above where there can be no legal assistance for the victims involved seems the contradictory with the constitutional concepts especially with 24(10) of the present Interim Constitution. However, some professional organizations including Nepal Bar Association and civil society organizations have been operating free legal aid and Legal Literacy programs in associations with different national and international agencies and a large number of the indigent and poor of the country has been benefited from the programs conducted by them. But in the present context the scope of Legal Aid is increasing day by day so the concerned authority should broadened their activities regarding Legal Aid and Legal Literacy Programs.
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CHAPTER- IV RECOMMENDATIONS
The consistent and effective program of legal education, legal literacy, social awareness, social mobilization, Para-legal training etc; directed to preventive legal aid should be carried out. Short-term Legal Aid programs and of without follow-up programs, are not effective and result oriented. So greater emphasis should be given for the follow-up programs, so as to make the programs more effective. To enhance efficient and qualitative service in Stipendiary Lawyer System; the Government should attract the competent lawyers by making a provision of Long term or permanent basis of appointment with attractive remuneration and facilities. The government should emphasize to transform and institutionalize the Legal Aid Project as a permanent government body and allocate sufficient fund in the budget. The Act Relating to Legal Aid Act should be amended, and re-corrected to make it more comprehensive. The Legal Aid Rules has given the discretionary power to the Legal Aid Committees to entitle / or not to entitle legal aid; therefore basic criteria or pre-conditions (of people and situations) to entitle for legal aid should be clearly mentioned in the Legal Aid Rules. The rule 3, 4 and 5 seems to be impractical and the Rule 6(1) about the ceiling amount to entitle legal aid should be made reasonable. Furthermore; Rule 6 (2) should not remain enforceable and there should be no classification of accused assisting legal aid. So the legislative must have a concrete and consistent vision towards legal aid. Legal aid should be made as a fundamental right of every accused as well as of the other people.
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BIBLIOGRAPHY
Black Law Dictionary (7th edition) Legal Aid- Handbook,(1992), Legal Aid Board, Sweer and Maxweu, London The constitution of the kingdom of Nepal 1990 The Interim constitution of Nepal, 2007 Legal Aid Act, 1997 Legal Aid Manual, 1998 UNDP (2010), Human Development Report
Subedi, Bishnu (ed.) (2011), Philosophy and Manual of Justice, Prem Pd. Acharya, Kathmandu Dhungel, Surya P.S. & Murgatroyd Chirs et. all (1998), Commentary on the Nepalese constitution, DeLF, Lawyer's Inc., New
plaza, Putalisadak, Kathmandu. Bhandari, Dr. Surendra & Buddhi Karki (2005), "Study of the Current Legal Aid System in Nepal", ARD ROL Manbhawan,
Lalitpur.
Nepal Bar Association (2013), " Boosting Access to Justice for Needy People", Central Executive Committee- EU Conflict Mitigation Progarm II, Nepal Bar Association, Kathmandu.
Nepal Bar Association (2009), " Legal Aid Manual", Central Executive Committee, Nepal Bar Association, Kathmandu. Report ICJ/Nepal Section,(1994), Legal Aid and Legal Literacy Scheme in Nepal
Bhimarjun Acharya (2001), Are the Modern States Government Under the Rule of Law? Essays on Constitutional Law, vol.38, Nepal Law Society.
Bhim Rawal (1990), Free Legal Aid: Development, Concept and Possibility in the Nepalese Context; NYAYADOOT, Vol.4 part2, Year 19, Nepal Bar Association, Kathmandu.
Bhimarjun Acharya, (2000), A Strategy to Legal Aid Program in Nepal, NAJIR: Quartely Law journal, Year 1, Vol-4. Sudeep Gautam (2059) Concept, Need and Development of Legal Aid ; NYAYADOOT, Convention Special Issue. Patrica, Feeney (1994), New Development Agenda, Human Rights: The consensus, UNHCR Regency Press. Gita Sangraula (1988); Free Legal Aid: Targeted Group, NYAYADOOT, vol.4, year 19, Nepal Bar Association, Kathmandu Alf Skogly and Sigrun I. Skogly , The Nature And Scoped of Legal Aid, KANUN, Vol.10, Lawyers Club, Kathmandu.
Websites:Central Bureau of Statistics-www.cbs.orgNepal Bar Association- www.nepalbar.orgSupreme Court -www.supremecourt.gov.npNepal Law Commission- www.lawcommission.gov.npNational Prisoners Legal Aid Program- www.celrrd.orgThe Danish Institute for Human Rights- www.humanrights.dk Legal Aid and consultancy center- www.laccnepal.org Socio Legal Aid Research & Training Centre-www.slartc.org
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“Thank You”