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by Sarath Malalasekera

Every citizen of Sri Lanka enjoys the Constitutional guarantee of equality before the Law and the equal protection of the Law. This guarantee is void of meaning if on the ground of poverty many citizens are denied access to justice. Access to justice must necessarily mean access to equal justice, said retired Judge of the High Court and Director, Legal Aid Commission of Sri Lanka Leslie Abeysekera, LLM, at the National Conference on Legal Aid held at the Bar Association of Sri Lanka Headquarters, Colombo on recently.

Chief Justice Sarath N. Silva, PC was the chief guest at the conference.Mr. Abeysekera speaking on Legal Aid situation in Sri Lanka said that the rich cannot be allowed to dominate a dispute before the Courts against the poor by reason of the stronger clout that they can wield by the comparative strength of their purse. In such a situation there is bound to be a denial of justice and an infringement of a fundamental human right. This is where Legal Aid comes to the rescue by attempting to eliminate the imbalance and affording the necessary equality before the Law and the equal protection of the law.

Quoting from Lord Diplock, Mr. Abeysekera said "Every civilized system of Government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are the Courts of Justice to which every citizen has a constitutional right of access in the role of Plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant".

Legal Aid is thus basic Human Right and the State owes a duty by the people to ensure that the people are able to enjoy this basic human right without the enjoyment of which many other cherished human rights may fall by the wayside. That in Sri Lanka, the State has failed in the effective provision of the Human Right of Legal Aid, is a matter for regret. It should and it must provoke a greater deal of anxiety in the Judiciary of Sri Lanka at all levels, in the Legal Profession, in particular the Bar Association of Sri Lanka, as well as all persons who value the preservation of human rights, due process and democracy in our country. The State must wake up and fulfil its obligation. Not that the State or the Judiciary or the Legal Profession has done nothing about it. What they have done is woefully inadequate.

Mr. Abeysekera said in criminal matters free legal aid to a needy defendant is a requirement under the International Covenant on Civil and Political Rights. Constitutional guarantees of due process and a fair trial have been judicially interpreted as being violated if persons in fact suffer deprivation of liberty due to their indigent circumstances. The people have therefore, a right to expect the State to provide legal aid to those who do not have the means to access the justice system without it. Has the State discharged its responsibility? Is the provision of an untrustworthy system of assigning counsel in the High Court an adequate discharge of this responsibility?

The Miranda Rules are not law in Sri Lanka and a suspect at the point of arrest has no access to a lawyer and is completely at the mercy of the Police. In pretrial proceedings before Magistrate, a suspect is almost invariably denied access to legal assistance.

Recent studies have concluded that the Legal Aid Commission established by Law No 27 of 1978 is potentially the most effective provider of legal aid in Sri Lanka as it is the creation of an Act of Parliament and thus has the advantage of structure, permanency and a degree of independence and accountability that less formalized legal aid providers tend to lack. That six out of the nine members constituting the Commission are members of the Bar Association of Sri Lanka (BASL) nominated by the Bar Council, and the imperative that two of these members are the Chairman and Administrator respectively, ensures the Commission, the degree of independence that is necessary for its proper functioning.

That the Minister of Justice appoints the other 3 members, that the State is required to make an annual grant, gives the Commission the colour of official State patronage. The legal requirement of periodical reporting and the annual audit of its accounts by the Auditor General, secures accountability on the part of the Commission. Even though the Bar Association has created a Legal Aid Foundation, it could be said that the Legal Aid Commission is an extension of the Bar Association and its main and substantial provider of legal aid. In establishing the Legal Aid Commission, the Legal Profession has acknowledged the responsibility of the profession to provide reparation for the imbalance in legal representation in our courts.

Besides the Legal Aid Commission and the Legal Aid Foundation, there are a number of NGOs who provide legal aid to the indigent - there are several organizations providing legal advice and legal representation in special areas such as the Lawyers for Human Rights and Development (LHRD) assisting children in distress, and several human rights organizations specializing in that field. Some of these organizations are prominent in the useful function of the dissemination of awareness of legal rights and duties.

In about 1998, the Ministry of Justice created a Project called the Community Legal Aid Project (CLAP) within the Ministry designed, in the main, for helping the people to access administrative and executive functionaries of the State for obtaining quicker relief outside the court system. This alternative dispute resolution mechanism was indeed timely given the endemic delay experienced in accessing the Courts which appear to be inundated at all levels, by an almost insurmountable backlog of pending disputes. In time, CLAP established several Regional Centres and enlarged its outreach.

The Centres which are well equipped were designed to deliver effectively, but whether they in fact achieved the targets that had been set, became debatable. Recently the Ministry of Justice contemplated certain reforms that would have meaningfully augmented the capacities of the Legal Aid Commission. A detailed discussion of this matter is considered inappropriate as it is before the Supreme Court.

Let me deal with the activities of the Legal Aid Commission in some detail because, as its current Executive Director, I am very much more conversant with its targets as well as its problems than I am with the other legal aid providers.

This is not to be taken to mean that we are ignorant of the work done by others. In point of fact, more than 15 legal aid providers have banned themselves together in to a Consortium (CLAO) for the purpose of networking with each other. CLAO was set up under the auspices of The Asia Foundation and this may be an appropriate time for me to deliberate on the magnificent assistance and encouragement that The Asia Foundation has rendered in providing legal aid to the indigent in Sri Lanka for many years up to September last year.

Among others, the Legal Aid Commission has over the years benefited not only by the generosity of The Asia Foundation but also by the understanding and encouragement of its Representative and Assistant Representative. With the financial assistance provided by the Foundation, the Commission was able to substantially increase its outreach by the establishment of 5 Regional Centres at Galle, Kandy, Anuradhapura, Trincomalee and Kurunegala respectively and also create a Lawyer Representative Scheme by which the Commission succeeded in reaching people living in distant places such as Hambantota, Matara, Moneragala, Ampara, Batticaloa, Jaffna etc.

In February 2000, the Canadian International Development Agency (CIDA) signed a Letter of Agreement with the Legal Aid Commission to provide financial assistance for the establishment within the Commission's Head Office at Colombo, a Unit for providing legal assistance to Women & Children. The activities of this Unit are extended to cover the entire country through the Regional Centres and the Representatives. This Agreement which was initially for a period of two years, has been extended until the end of the current year.

The Weekly Legal Aid Clinic that the Commission conducts at the Prisons Headquarters at Welikada since September 2000, has benefited several hundred Remand Prisoners whose rights would have continued to be ignored but for the Clinic. At this Clinic, we have discovered, to our dismay, the many instances of grave injustice prevailing within our criminal justice system.

The case of the woman suspect languishing on Remand for the past 18 years, the woman who was arrested under the Vagrants Ordinance when she was 3 months pregnant, and had her child at the Prisons Hospital and was discharged when the child was about three months old due entirely to our intervention, and many more instances, are a blot on our criminal justice system which the Attorney General of this country and Magistrates and Judges sitting in our Criminal Courts, both Original and Appellate, will have to take serious note of.

It appears to me that the "golden thread that runs throughout the entire web of the English Criminal Law," the presumption of innocence, means very little or nothing in our country. We take justifiable pride that we have established the Prisons Clinic at the Headquarters of the Prisons Department and hope to extend its activities to other Remand Prisons outside Colombo in the near future.

Until such time, we have requested the Commissioner General of Prisons to transfer to Welikada two prisoners who are serving jail terms of 105 and 72 years respectively at Bogambara so that we may study their cases and render possible assistance.

In the limited time assigned to me, let me conclude my Presentation by suggesting a few remedial steps that could be taken to in order to ensure that legal aid is dispensed to the needy more effectually. The legal profession must be more effective and must establish a meaningful Pro Bono scheme within themselves. The words of Lord Woollfe Master of the Roll and Chairman of the British Pro Bono Unit's Advisory Board, deserves repetition: "I strongly support the work of the Bar Pro Bono Unit. The work of this Unit is the answer to the sometimes unflattering picture of the profession often painted in the Press. The Unit's work for the Court of Appeal is already extremely valuable and I have great expectations of what it will achieve in the future.

If we can continue to develop this relationship, the Unit's contribution to Justice will be immense." The judiciary may attempt to look at Legal Aid Lawyers who are by force of circumstances mainly raw beginners in the profession, with a more sympathetic eye, so that justice may be done to the countless unfortunate litigants who come up before them every day, who are compelled by misfortune to depend on less experienced lawyers. Seriously consider the introduction of Alternate Dispute Resolution (ADR) as a means of reducing the delays in our court system which has a harmful effect on the due delivery of legal aid.

"From the point of view of the Court service, ADR has the obvious advantage of saving scarce judicial and other resources. More significantly, in my view, it offers a variety of benefits to litigants or potential litigants. ADR is usually cheaper than litigation, and often produces quicker results.

In some cases the parties will want to avoid the publicity associated with court proceedings.

It may also be more beneficial for them, especially if they are involved in a continuing personal or business relationship, to choose a form of dispute Resolution that will enable them to work out a mutually acceptable solution rather than submit to a legally correct adjudication which at least one party would inevitably find disappointing" - The Woolf Report, chapter 18, Access to Justice.

4.Introduce the Contingent Fee system, at least to legal aid lawyers. UK legalized the Contingency Fee more than 10 years ago.

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