Dorji Khandu

“A just society is the one where justice prevails throughout alike. To have equal right to approach the court is rendered useless if the right can’t be exercised. It is then, nothing more than a paper promise. The rich and influential can approach the courts because they have means, but the poor have to face injustice simply because they have no money to hire a lawyer. It is therefore in the interest of justice to establish a social order when the poor not only have the right but also the means to seek justice. The idea of legal aid to the poor is, thus a step in this direction”.

Monish Arora, Short Essays & Paragraphs on Law (University Law Publishing Co., Delhi, 2nd Ed., 2006) 75

What do you all think about the legal aid services? I rose to speak, for my heart cried as I effortlessly connected my past and present to the concern that can potentially bring voices to the voiceless should there be this so-called ‘legal aid service’. Displeasing at times, for many of us are barely aware of who an indigent person is. Well, we would have known this noblest idea had it not been cocooned by institutions that can potentially give life to the Council’s proposal.

Well, according to the legislative committee of the NC, an indigent person is a person who is poor, helpless and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding.

In 2014, the then Member of Parliament, Gasa Dzongkhag, Dasho Sangay Khandu, first raised the Legal aid service to an indigent person in Parliament. Following this, the need for providing legal aid services to indigent persons have been discussed in different sessions of the National Council, particularly during the deliberations on the annual budget and appropriation bill. This was because a small amount of budget for this purpose was allocated every year but had never been utilized. Further, the concern was debated during the amendment of the Jabmi Act 2016. A new clause related to the provision of Legal aid was incorporated with the intent of assuring such services to the needy people. The National Council, during its strategic workshop held in Paro from June 25-26, 2017, once again deliberated it weighing in the merit of the concern and decided to undertake a comprehensive review. The Legislative Committee (LC) was assigned the task of conducting the analysis and reporting its findings and recommendation to the House.

The Legislative Committee adopted the following methodology;

• Review of relevant laws and literature
• Consultative meetings with relevant stakeholders
• Learning visit to two countries in Asia

The Legislative Committee (LC) continued its third consultative meeting on the “Policy Review of Legal Aid to Indigent Person” with the Drangpons (Judges) from the Bhutan National Legal Institute (BNLI).

The Drangpons from BNLI shared that though the State provides an annual budget for legal aid. That different laws have different provisions under legal aid, and no agency has been identified/authorized by any of the existing legislation with the responsibility for implementing the provisions on Legal aid. There are no procedural guidelines for availing legal aid. Furthermore, people are unaware of the existence of such legal aid services provided by the State. They pointed out that the main aim of such provision is to provide access to justice; however, an appropriate agency to lead such crucial services could not be identified. One of the highlights of the meeting was the need for a clear definition as to who should qualify as an indigent person and who is eligible to receive such a legal aid.

Deliberations were held with regard to the possibility of creating a small interim cell mandated to evaluate the provisions of legal aid to indigent persons within the jurisdictions of Judiciary (such as Supreme Court) or whether the Bar Council would be the appropriate agency to provide legal aid instead of the establishment of a separate agency. It was found that Bar Council had a mandate of providing pro bono services to indigent persons but did not have the mandate to spearhead the legal aid services.

The National Council (NC) members with a show of hands endorsed all the provisions of the final resolutions on legal aid services and legal aid to an indigent person on November 28, 2017. The resolution has been forwarded to the Government in the hope of endorsement.

The crux of resolution was that the existing institutions such as the Office of Attorney General (OAG), Judiciary, Bhutan National Legal Institute (BNLI), the National Commission for Women and Children (NCWC) and Bar Council do not seem appropriate to initiate such legal aid in the country due to conflicts of interest and differing mandates.

Moreover, pertaining to civil matters, due caution should be exercised right from the beginning to prioritize the nature of cases such as those concerning family (matrimonial), children, domestic violence, monetary matters, land or property issues and issues arising from the infringement of constitutional rights to provide legal aid to indigent persons.

“The legal aid services and legal aid to an indigent person are available from the time the accused is held in custody to facilitate sufficient means to fairer judicial determinations,” the resolution stated.

The legal aid to an indigent person according to the resolution, should be eligible to persons with an income of Nu. 39,000 in a year based on the national minimum wage of Nu. 125 per day (Nu. 3,250 per month), or Nu. 69,648 in a year for urban areas and Nu. 39,012 in a year for rural areas based on the mean monthly per capita household expenditure of 2012.

Furthermore, it also mandates educational and awareness programme to raise awareness of the importance and availability of legal aid services to the general public and in particular, among police, courts and community functionaries.

Should indigent proposal come through and the Government of the day embraces the pros over insignificant cons in adopting the noblest idea, I’m in total agreement with some of the concerns raised by the then MPs that the legal aid service outlets should be only accessible to only the needy and voiceless – so-called ‘kha-med chey-med’. And yes, this should not open a floodgate for state fund. Stringent criteria must be adopted, and common ground must be found.

Marking a set back to the Council’s proposal, recently the Government has responded positively to the 20th Session’s resolution on providing legal aid to indigent persons. In fact, the response from the Government came lately towards the end of the 21st Session after the Council’s re-deliberation on the Government’s lack of response to its resolution. Nonetheless, the election of the National Assembly is around the corner and we hope the upcoming Government will continue to implement the resolution as stated in the response letter dated 25/06/2018. By doing so, it will uphold the Constitutional clauses that states, “The State shall endeavour to provide legal aid to secure justice, which shall not be denied to any person by reason of economic or other disabilities” and “All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status”.

“The State shall endeavour to provide legal aid to secure justice, which shall not be denied to any person by reason of economic or other disabilities”

“All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status”

Disclaimer: The views expressed in here are self-authored based on existing literature and do not necessarily reflect the national council’s stance.