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
Betsy and Rick with ILF-Nepal staff
Betsy and Rick with ILF-Nepal staff

The ultimate goal of all ILF programs is to establish effective, sustainable, locally-run, government-supported public defender systems in post-conflict and transitional countries. In Nepal, where the ILF established a public defender office in 2007, we are now taking the final steps toward transitioning ILF-Nepal into a locally registered Nepali public defender office.

Over the past several years, the ILF has worked to progressively nationalize ILF-Nepal. Supervision and training was turned over to local lawyers, while fiscal accountability and management gradually shifted from the ILF’s headquarters in New York to local staff. ILF-Nepal then registered with the Government of Nepal as a public defender office, the first organization in Nepal to do so.

After ILF-Nepal’s official transition to local management, scheduled for June 2016, it will be known as the Public Defender Society of Nepal, or PDS-Nepal. PDS-Nepal’s Constitution states that its objectives are to preserve the constitutional right to free legal representation; to enhance access to justice; to explore ways to reduce the number of detainees and prisoners in Nepal; to conduct research related to the provision of criminal defense services for indigent and marginalized accused; to conduct training programs for public defenders and other legal practitioners; and to organize and execute any other necessary and appropriate programs related to the administration of criminal justice, the rule of law, and fair trials.

To assist in this transition, in April 2016 ILF Program Officer Betsy Walters traveled to Nepal with Rick Jones, Executive Director of the Neighborhood Defender Service of Harlem (NDS). Rick and Betsy conducted an assessment of the management structure and operating procedures of ILF-Nepal, in order to understand whether there are changes that should be made to make the country program more efficient and effective. The trip was an exchange that allowed local Nepali management direct access to the expertise of one of the largest public defender office in New York.

As the head of NDS, Rick Jones has unique experience working with justice sector actors to ensure access to justice. He is also experienced in developing the capacity of lawyers and ensuring quality services; engaging in effective case intake mechanisms; and managing the administration of a large public defender organization. Insight into all of these areas is invaluable to local leadership in Nepal as they transition into a local independent public defender office.

During the trip, in addition to assessing the program in terms of case management, case intake, quality service provision and leadership. Rick and Betsy also met with various stakeholders, including district court judges in Lalitpur and Kathmandu, and the newly elected executive committee of the Nepal Bar Association, to discuss long-term development of ILF-Nepal's programs and criminal legal aid in Nepal overall. A major focus was on helping the government of Nepal and the judges within the Lalitpur district court to envision an early access mechanism. Rick gave these stakeholders examples of how the Neighborhood Defender Service of Harlem and other legal aid services in New York provide representation at this stage of the case.

As a follow-up, the team will produce a report with their findings and recommendations, which will be of use to ILF-Nepal as it prepares to fully transition to autonomy as PDS-Nepal. The report will also be used in helping ILF set benchmarks for new and existing programming around the world.

ILF-Nepal and members of the Nepali justice sector
ILF-Nepal and members of the Nepali justice sector
Ajay, head of ILF-Nepal, with Betsy and Rick
Ajay, head of ILF-Nepal, with Betsy and Rick
The women lawyers of ILF-Nepal with Betsy
The women lawyers of ILF-Nepal with Betsy
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ILF-West Bank's dedicated lawyers and staff
ILF-West Bank's dedicated lawyers and staff

The leading global advocate for the right of the poor to legal counsel, the ILF assists countries emerging from conflict or in transition to establish quality, effective criminal legal aid systems. To date, we have established public defender systems in Afghanistan, Nepal, the West Bank, and Tunisia. In 2016, the ILF is working to expand our reach – with the help of our supporters on GlobalGiving. We’re focusing on assisting government in other parts of the world, such as Liberia, Myanmar, and the Ukraine, in upholding the rule of law by ensuring access to justice to poor and marginalized accused, particularly during the earliest stages of the case.

When the ILF determines there is a need for its services in a particular country, we review the constitution and other laws, and identify whether basic fair trial principles exist in law. Without the baggage of the history and practices of the country, the ILF’s legal experts often identify legal rights of the accused that local lawyers were not aware of, and have never utilized. The ILF then works to train local lawyers, case-by-case, day-by-day to argue for those rights to be upheld.

One crucial aspect of the right to legal aid which the ILF will target in these countries in 2016 is the right to early access to a lawyer.In most courts around the world, investigation documents prepared by the police have a significant impact on the development of the case against a defendant, and ultimately in the court’s decision. Without access to a lawyer at the beginning of the criminal justice process, abuse and torture by police and interrogators is generally left unchecked. Information that determines the outcome of a trial is often obtained at the arrest or interrogation stage, and if a lawyer is not present, police or prosecutors frequently coerce detainees into confessing. It is critical that all accused have early access to quality counsel to protect and advocate for their rights by challenging illegal practices.

One recent example of the importance of this occurred in the ILF's West Bank office. The client, a poor day laborer, was arrested and charged with weapons charges which could have resulted in a lengthy prison sentence. However, at trial, his ILF defense lawyer successfully argued, and was able to show, that the client was tortured into confessing by being beaten and hung in chains from the ceiling, and that thus the statements made to police during their investigation were unreliable and null. The court agreed, showing its commitment to upholding both national and international law, and ruled that the statement was inadmissible - ultimately acquitting the client. 

ILF-West Bank at work
ILF-West Bank at work
Lawyer Emad Salaymih, whose client was tortured
Lawyer Emad Salaymih, whose client was tortured
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Klov Palace, seat of Supreme Court of the Ukraine
Klov Palace, seat of Supreme Court of the Ukraine

The International Legal Foundation continues its work to address the global crisis in access to counsel for the poor, with the help of your donation through Global Giving. This year, our supporters’ donations have helped fund initial assessments of Liberia and Myanmar, allowing us to study the countries’ justice sectors and the current status of legal aid in both countries; in addition, our visits allowed us to make initial inroads with justice sector actors. Now that this groundwork has been laid, both projects have continued to progress. We’re currently focusing our efforts on developing a more comprehensive assessment of the needs of Myanmar’s justice system, based on the initial one funded by our supporters; in Liberia, we’re discussing the recommendations from our Liberia assessment with the Liberian Supreme Court and Public Defender Office as we develop plans for a full project there as well.

As these projects progress, we’ll share more details here on GlobalGiving. For more regular updates, please follow us on Facebook and Twitter.

The ILF is now preparing plans to conduct an assessment of the Ukraine’s legal aid system, funded in part by your donations. We’ve been invited to the Ukraine by the Director of the National Legal Aid Coordination Center, the government agency responsible for providing legal aid in the Ukraine. The ILF’s intervention is of particular importance given the still fragile ceasefire in eastern Ukraine, a perceived weak rule of law, and widespread corruption.

The right to free counsel for poor persons accused of a crime is enshrined in law in the Ukraine, yet many indigent accused are denied access to effective legal representation. There has been no comprehensive qualitative evaluation of Ukraine’s legal aid system; however, existing studies and reports reveal that poor and vulnerable persons charged with crimes in the Ukraine are systematically being deprived of adequate, effective representation. As a result of these deficiencies, indigent defendants suffer substantial harm to their constitutional rights. Complicating the matter, the head of the Ukraine’s legal aid agency is under attack from the Ukrainian Bar Association for attempting to challenge corruption and lack of independence of so-called “pocket” lawyers who work not in the interests of their clients, but in the interests of the police or prosecutors.

The ILF’s planned assessment of the current state of legal aid in Ukraine will be the first step in recommending reforms. It is only by understanding the current level of need for legal aid and assessing existing services that the Ukraine can remedy gaps in its legal aid system. The ILF will focus this assessment on practical reforms that the Government of the Ukraine can make to improve the accessibility, effectiveness, sustainability, and credibility of legal aid services in the Ukraine.

Photo credit: Klov Palace, seat of the Supreme Court of the Ukraine in Kiev. Photo by Jacek Halicki. Licensed under CC BY-SA 3.0

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Liberia's Chief Justice and PDC with top ILF staff
Liberia's Chief Justice and PDC with top ILF staff

We at the International Legal Foundation wish to thank you for your donation to our GlobalGiving campaign, Establishing Legal Aid in Post-Conflict Countries. With your support, in May 2015, the ILF traveled to the post-conflict country of Liberia in West Africa to conduct an assessment of Liberia’s public defender system, and determined that it is in desperate need of the ILF’s support.

A skilled criminal defense bar and effective legal aid institutions are essential components of fair and balanced justice systems; defense lawyers serve as a check on the other branches of the justice system, ensuring that laws are implemented and that every person has access to justice. Liberia, a country emerging from a prolonged civil war and recently ravaged by Ebola, is currently rebuilding its public institutions, including the Liberian Public Defense Office (PDO). Liberia’s Constitution guarantees the right to counsel for all indigent accused persons from the time of arrest, and the PDO was established under the judiciary in 2009. However, the PDO lacks the capacity to provide quality, effective legal representation to all Liberians in need of its services. Building the capacity of the PDO to provide effective criminal defense services for the poor is of particular concern, given that an estimated 80 percent of detainees in Liberia’s prisons are awaiting trial.

Without access to counsel, the indigent accused are more likely to languish in pre-trial custody, and are more vulnerable to coerced confessions, torture, wrongful convictions and other abuses. If the Liberian government cannot provide access to justice and address the pretrial detention crisis, the likelihood of internal conflict will increase.

Based on its May 2015 assessment, the ILF is now developing a plan forproviding assistance to the Liberian PDO. In late 2015 or 2016, the ILF then hopes to conduct an assessment of the Public Defense Offices in each of Liberia’s 15 counties. Among other areas, the assessment will include gathering statistics on the number of people arrested in each county; types of charges occurring in each county; the number of people represented by the public defender; the number of client visits; first court appearances; the number and types of pre-trial motions filed by the public defender; the number of pre-trial detainees; and the average length of a case.

The assessment team, comprised of the PDO Coordinator, a representative from the Supreme Court, and the ILF’s program director, will also shadow public defenders at court, conduct in-office observations, and engage in case file reviews, as well as conducting interviews with public defenders, judges, prison officials, court staff, and clients, if possible. This assessment with provide specific information on the experience of public defenders practicing in Liberia’s court system, including gaps between the law and actual practice and enable the ILF to help the PDO develop an effective mentoring program, case management system, and an oversight and monitoring system.  

Liberia's Temple of Justice
Liberia's Temple of Justice
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Smith and Taylor with other global ILF staff
Smith and Taylor with other global ILF staff

The International Legal Foundation continues to follow up on its January 2015 assessment of Myanmar’s criminal legal aid system. With your support, we were able to travel to Myanmar and assess the ability of poor people accused of crimes to access legal counsel. Now, we are using the connections we made and the lessons we learned during the assessment to consult with Myanmar’s justice sector on ways to reform its criminal justice system.

On March 23rd-24th, Jennifer Smith, the ILF’s Executive Director, traveled back to Myanmar to participate in a national-level meeting on criminal legal aid, the Myanmar UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems National Workshop. The workshop was an opportunity for Myanmar’s justice and judicial system stakeholders to discuss the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, the first international instrument to deal with legal aid.

This workshop brought together international experts and government officials, including the Attorney General and General Secretary, as well as civil society leaders from local legal aid organizations. Participants discussed the current legal aid system in Myanmar and its draft legal aid law, as well as an overview of the different legal aid models and what may work best in the context of the Myanmar justice system.

Jennifer Smith gave two well-received presentations at the workshop, drawing on the ILF’s extensive experience in working with countries emerging from conflict or in transition to establish criminal legal aid systems. The first presentation, an overview of legal aid delivery systems, emphasized the government’s responsibility to ensure quality representation and showed the various methods by which governments can accomplish this. The second presentation, Quality Control & Monitoring of Legal Aid Services, discussed how to achieve this objective through developing oversight and monitoring mechanisms. Such mechanisms are the cornerstones of the ILF program, and are a necessary element of any effective legal aid system.

On March 24th, the ILF’s New York office welcomed Aung Kyaw Thein, the Program Advisor for the Yangon based Pyoe Pin Development Programme. Pyoe Pin focuses on facilitating better understanding of legal rights and responsibilities and strengthening the rule of law in Myanmar. Aung Kyaw Thein had traveled to the United States to participate in an access to justice meeting in Washington, D.C., which presented the perfect opportunity for the ILF to host him in New York for visits to The Legal Aid Society and Neighborhood Defender of Harlem, two successful models of legal aid delivery in New York. 

Aung Kyaw Thein and ILF Program Director Nicole Taylor met with  Justine Luongo, Attorney-in-Charge of the Criminal Practice at The Legal Aid Society in New York. It was a fruitful discussion, in which Aung Kyaw Thein raised questions about funding, oversight, appointment mechanisms, budgeting, and the scope of services provided at The Legal Aid Society, as these are issues that the Myanmar government is currently addressing as it develops its legal aid system. Luongo’s detailed explanations gave Aung Kyaw Thein a better sense of how to craft solutions on these issues and how to provide better advice and recommendations to the Myanmar government.

Aung Kyaw Thein and Taylor also met with Rick Jones, Executive Director of the Neighborhood Defender of Harlem.  This meeting was insightful, as Jones was able to discuss how to effectively provide quality representation to a smaller, more targeted community.  The discussion was enlightening for Aung Kyaw Thein as he learned about NDS’s commitment to holistic representation and the important impact of representing the whole client. This would be an innovative idea in the Myanmar Legal Aid System.

The ILF will continue its engagement with Myanmar, providing consultation and networking with justice sector stakeholders. Myanmar has a clear interest by the government in creating a more effective legal aid system and a clear constitutional right to counsel which is supported by its criminal procedural code and other laws; however, there is a significant gap between these laws and current practices. The ILF hopes to continue helping to bridge this gap, and to address the challenges to access to justice in Myanmar.

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Organization Information

The International Legal Foundation

Location: New York, NY - USA
Website:
Facebook: Facebook Page
Twitter: @theilf
The International Legal Foundation
Jennifer Smith
Project Leader:
Jennifer Smith
New York, NY United States

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