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Establishing Legal Aid in Post-Conflict Countries

by The International Legal Foundation
Establishing Legal Aid in Post-Conflict Countries
Establishing Legal Aid in Post-Conflict Countries
Establishing Legal Aid in Post-Conflict Countries
Establishing Legal Aid in Post-Conflict Countries
Establishing Legal Aid in Post-Conflict Countries
Establishing Legal Aid in Post-Conflict Countries
An alleyway in Jakarta (JP/Ben Latuihamallo)
An alleyway in Jakarta (JP/Ben Latuihamallo)

Indonesia is an incredibly diverse, vibrant country with a population of over 260 million (the fourth largest in the world), that has made major democratic reforms since the end of military dictatorship in 1998. Despite these reforms, and the development of a legal aid law and framework, Indonesia still suffers from a crisis in access to justice. Unable to get prompt access to quality legal aid, poor and vulnerable people accused of crimes fall victim to illegal and arbitrary detention, corruption, false confessions and wrongful convictions - often times languishing in detention for months without a hearing. These violations have the potential to cause irreversible damage to their livelihoods, relationships, and family. Indonesia does benefit from an organized system of legal aid providers who are committed to fighting injustices but who are also struggling to develop the skills and capacity necessary to provide effective rights protections. In March, thanks to your support, I traveled to Jakarta to complete a legal system review and to gain on-the ground insight into barriers to access to justice for the poor.

During the trip, I identified several areas where the ILF can leverage its comparative experience while adapting our model to the particular conditions in Indonesia. First, as we’ve seen in many countries, Indonesians have limited access to counsel, particularly in rural areas. This is especially pronounced on remote islands. Second, attorneys have few incentives to take on tough criminal cases. The Indonesia Legal Aid Foundation (ILAF) provides legal aid services, but the government pays lawyers by the case. A case involving civil penalties that can be resolved quickly earns a lawyer the same as taking on a complex criminal case, discouraging lawyers from serving defendants desperately in need of high quality counsel and facing high stakes penalties. Third, the culture in many police stations discourages defendants from promptly calling a lawyer, and I heard several descriptions of alleged mistreatment and bribery in this setting. Having defense lawyers on duty at police stations, as we’ve successfully piloted in Tunisia, could go a long way to prevent abuse, promote transparency, and rebuild faith in the system.    

Speaking with Indonesian colleagues was an amazing opportunity for professional exchange, and I found most audiences very curious about our work. Indonesia’s legal aid providers would benefit from a mentorship program that would increase their ability to combat rights violations by developing their capacity to ensure early access to quality counsel and engage in strategic litigation aimed at systemic change. This trip supports the ILF’s understanding that the challenges in Indonesia are shared by other countries in the region and our belief that addressing the quality of legal aid services can lead to an increase in access to justice. The information gathered will inform the ILF’s advocacy aimed at supporting human rights defenders in countries like Indonesia. We invite you to spread the word about the ILF’s effort. Many thanks for your steadfast support, and please do continue with us on this journey!

A juvenile defendant awaits trial in Yangon
A juvenile defendant awaits trial in Yangon

The International Legal Foundation has made great strides in its pursuit of justice for poor accused in Myanmar. Since our launch in Myanmar in late 2017, we’ve defended over one hundred accused men, women, and children from unjust detention and arrest. In Yangon, Mandalay, and Pathein these cases have been represented by our local lawyers under the expert instruction and mentoring of our International Fellows. In court, our defenders have made it a priority to protect defendants from illegal detention and mistreatment, and that’s why we’re honored to bring you the news that the United Nations Development Programme, which has been a global steward of access to justice for the poor and vulnerable for over fifty years, has chosen the International Legal Foundation to provide access to justice to women and other vulnerable groups in the crisis affected area of Rakhine State.

Rakhine is among the poorest states in Myanmar, with nearly 70% of its three million residents living below the poverty line. Many of these people, belonging to the Rohingya ethnic minority, live in camps for Internally Displaced Persons where informal police and courts wield absolute authority. There are so many in need of our services in Rakhine: We know this because of the cases we’ve taken elsewhere in Myanmar, like a young orphan girl accused of accessory to rape for making the bed where the alleged assault took place. Since last year we’ve been hard at work filling in the gaps in the Myanmar justice system and enforcing the rights granted to defendants, like when we fulfilled a pregnant woman’s plea not to give birth in a cell, awaiting trial – our lawyers successfully secured a bail order for her, so that she could receive the medical attention she and her newborn needed.

We’ve made incredible strides in Myanmar, and we’re thrilled that the United Nations Development Programme has chosen us to bring internationally recognized standards of criminal defense to one of the most in-need communities in the world. This has been made possible because of the support of the GlobalGiving community, which allowed us to assess and then respond to the urgent need for access to justice in Myanmar. Please, consider joining us on our mission: renew your donation today, or upgrade to a monthly donation, and help us advance access to justice in Myanmar and around the world.

Thanks to your support, the International Legal Foundation has been able to expand into Myanmar, where last month we opened our newest office in Pathein, Myanmar’s fifth largest city. Since opening the office, the ILF has been fighting for the release of the many children who are languishing in detention for petty offenses without access to a lawyer. In our first case, and first win for the office, our two newest Myanmar lawyers, Daw Twe and Daw Phyu secured the release of three young boys – 11, 12 and 14 years of age – who had been languishing in jail for over 30 days on the petty offense of stealing some wire from a construction site they had been playing in.

This case illustrates why the ILF’s work is so important; without access to counsel, children as young as 7-years old are routinely arrested and charged with petty offenses in Myanmar. The ILF’s work on behalf of these children is pioneering as few of them have access to a lawyer when arrested by the police. As a result, they languish in detention for weeks and months, unable to defend themselves or to contact their families for help. The ILF is looking to change this unjust practice by providing early and effective legal aid services to all children and by challenging their arrest and detention by the police. Supported by the ILF’s program director Holly Hobart, our newest Pathein lawyers sprung into action when the police contacted them to let them know that three young boys were languishing in detention without access to a lawyer. They fought to keep the court open on a Friday afternoon so that the boys could be released before the end of the day. We are incredibly proud of the hard work and commitment of our ILF team in making this happen.

This story is not unique to Myanmar. In too many countries around the world, people are being arrested and convicted for minor offenses, which puts them in contact with violent offenders and keeps them out of schools. The ILF is working to address this challenge by fighting to divert these cases into family or community based alternatives, and by expanding into new countries around the world. With your help, this past year we conducted legal needs assessments in Laos and Bangladesh, where we discovered a critical need for legal aid services to address injustices in those countries. And we are happy to report that as a result of our assessment in Laos, funded with support from GlobalGiving, the ILF has partnered with The Asia Foundation to open a new legal aid project there, under a grant from USAID!

Because of your support, our work is being recognized at a wider scope than ever before. At a recent international conference we co-hosted in Georgia, dozens of countries, inspired by evidence of real change that the ILF has created around the world, asked for us to help them reform their legal aid systems. In 2019, we hope to be able to continue to meet this critical call for assistance. In recognition of your support, GlobalGiving is offering to match up to $150,000 in donations over the next 24 hours. Please, show your support for those impacted by unfair and arbitrary abuses of justice this holiday season. Donate today. Thank you.

The International Legal Foundation continues to seek out expansion opportunities in areas where our services are needed. In our search, we heard a lot about the growing and increasingly powerful legal aid reform movement in Bangladesh. We developed a feasibility study to extend our services to Bangladesh, where there is a clear commitment to legal aid reform. In recent years new legal aid legislation has put in place a framework for effective delivery, and the 2018-2020 strategic plan for the justice sector includes quality and effective legal aid in the justice sector strategic plan.

However, despite these efforts, the country’s legal aid system continues to struggle under years of neglect, the consequences of which are profound. Although the Criminal Procedure Code provides for legal counsel to eligible Bangladeshis in every court in the land, fewer than half of the country’s districts provide legal aid, and no mechanism exists at the Union level. What’s worse, there are no nationally recognized standards for legal aid provision in the country, which means that those applying for legal aid face more scrutiny than those working to provide it. As of 2015, there was a backlog of 2.8 million cases in the courts. In criminal trials, less than half of cases (42%) were finalized within a year, and more than a third (38%) took more than two years. While these cases stall in the criminal justice system, many of the accused languish in pre-trial detention, which, in addition to being a potential human rights violation, has dramatic economic and social repercussions for the individual accused, their families, and society at large. Exposure to terrorist ideologies and radicalization has emerged as a new threat in recent years; a 2017 study identified Bangladeshi prisons as “a space of extremely high vulnerability to” radicalization as a result of over-crowding, de-humanization, corruption among prison staff, and, crucially, the “dysfunctional criminal justice system [that]…creates sufficient inducement for radicalization.” Police torture is also prevalent, with 25% of arrestees reporting some type of torture or abuse. These negative impacts fall disproportionately on the poor and vulnerable, including women, juveniles and young people (under age 29), religious and ethnic minorities, refugees, and internally displaced persons.

According to our study, the situation in Bangladesh is correlated with a dearth of legal aid services. Based on the assessment, we’re looking forward to the opportunity to support the Bangladeshi government as they address the gaps in their legal aid system.

Our assessment suggests interventions such as workshops with stakeholders to introduce performance standards to the justice community - building capacity around what they mean, how they are used and implemented and how they can benefit justice system; the development of pilot programs that incorporate performance standards including the capacity and structures needed for effective implementation can service as practical models of quality legal aid delivery that the government can both learn from and build upon; a rights awareness campaign to empower local communities to assert their rights; and the provision of support and capacity building for administrators to ensure that they are able to create a legal aid system that respects the rights of poor and vulnerable accused. It’s our hope that this work, in addition to increasing access to justice, will reduce exposure to extremism and help to stem the tide of radical political extremist violence in Bangladesh.

Without your donations, we’re unable to carry out these studies, forcing us to miss out on opportunities and diminishing our potential to help those who need it most. If even twenty percent of our donor pool becomes sustaining monthly donors, we’ll be able to advance our agenda of comprehensive and high-quality legal aid for the indigent accused worldwide. Just click the “Donate Monthly” tab above to get started. Thank you for your generosity and your continued support.

With the support of our GlobalGiving donors, the International Legal Foundation conducted an assessment of the legal aid system in Laos in February 2018. We found that the lack of early access to quality counsel, poor training for legal aid providers and an insufficient system of administering legal aid to people in need of legal aid services were leading to persistent rights violations that have resulted in a legal aid crisis in Laos. To assist the Lao government in addressing the challenges to achieving access to justice for poor and marginalized accused the ILF now plans to provide assistance to Lao legal aid providers.

In our assessment in February, the ILF determined there was a critical need for criminal legal aid services in Laos to challenge illegal and arbitrary actions of authorities that violate the rights of the poor, such as illegal detention, torture, and the lack of access to government evidence. This need has been acknowledged by the Lao government in two decrees on legal aid, issued in 2017. These decrees set out principles, regulations, approaches, and measures for the creation and use of Legal Aid Funds, which will promote access to justice through free legal aid. Access to legal aid creates equality before the law and provides opportunities for justice to those suffering from systemic disadvantages such as the poor, people with disabilities, children, defendants in death penalty cases, and female victims of violence and human trafficking. These decrees are supported by Laos’ legal aid regulation and the Constitution, which provides for the right to counsel, defense, and equality before the law.

Despite these on-paper protections, rights violations Lao courts are distressingly common. One of the main issues is that there is no culture of defense in Laos. As of 2016, there were approximately 200 licensed lawyers in the Lao Bar Association, from which only about 30 actively practice law (with most residing in Vientiane – the capital city). There are some efforts to increase the number of lawyers and improve legal education with 20 new lawyers being licensed in 2017. Of this small group of lawyers some are appointed to represent people in accordance with the legal aid decrees mentioned above, while others only provide advice and assistance through Legal Aid Offices managed by the Ministry of Justice. Although this is the beginning of a structure for the provision of legal aid, neither the legal aid clinics nor the legal aid offices operate based on internationally recognized best practices and standards in criminal defense representation. There is no system of mentoring and training to ensure that lawyers are providing quality representation to their clients, and no monitoring and evaluation system measure performance or outcomes. As a result, legal aid training in Laos is ad hoc, and practitioners are flying blind.

Most critically, people are not receiving early access to legal aid. Lawyers are only appointed after the investigation has been completed, which is problematic for two reasons: First, the investigation often runs as long as seven to ten days, during which time the defendant is kept in detention without regard for their rights. Second, the trial phase is often too late in the process to effectively protect clients from coerced statements and confessions, abuse, and torture, or to advocate for release or diversion. This delay also impedes proactive defense investigation and access to information necessary to ensure the right to counsel and to defense. As a result, most poor and marginalized people arrested in Laos do not get access to quality counsel and are forced to stand unrepresented and unprotected before the court. In a recent example, four criminally accused co-defendants stood unrepresented before the court, each was interrogated by a three panel court, the judges convened briefly behind closed doors and returned with verdicts of guilt for each defendant and they were immediately sentenced. Without the presence of counsel none of the accused was able to access his right to defense or counsel as granted by Lao’s constitution.

As a part of its approach for the Laos program, the ILF will seek to partner with existing government institutions to develop legal aid capacity through the ILF’s signature mentoring programming with the support of International Fellows. The ILF’s International Fellows program recruits recognized experts in criminal defense to provide day to day case by case mentorship and training to local legal aid providers that will lay the groundwork for reform. The fellows adhere to ILF’s rigorous legal aid standards such as the 10 Practice Principles articulated in ILF’s Measuring Justice Defining and Evaluating Quality for Criminal Legal Aid Providers while bringing along personalized lessons from their careers as public defenders in jurisdictions around the world. Our standards, which are available for download, have been hailed by legal practitioners around the world as a definitive set of interational best practices, and we're excited to tailor them to the laws and conditions of Laos.

We have made incredible strides in our Southeast Asia programs. In contrast to traditional funding sources, GlobalGiving gives us the flexibility that we need to conduct assessments and respond in real time to local legal aid crises as illustrated by the ILF successful expansion into Myanmar in 2017. The ability to dedicate resources to recognizing issues with criminal justice systems and then acting to mitigate them is vital to our mission. Please consider renewing your donation today and helping us to advance access to justice in Laos and around the world.


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Organization Information

The International Legal Foundation

Location: New York, NY - USA
Facebook: Facebook Page
Twitter: @theilf
Project Leader:
Jennifer Smith
New York, NY United States
$25,144 raised of $50,000 goal
148 donations
$24,856 to go
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