Establishing Legal Aid in Post-Conflict Countries

by The International Legal Foundation Vetted since 2014

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.

The Mekong River Prison in Laos (c: Lao SPD News)
The Mekong River Prison in Laos (c: Lao SPD News)

The International Legal Foundation is dedicated to ensuring that the poor and vulnerable have access to legal aid in post-conflict and transitioning countries around the world. With your assistance, the ILF was able to travel to Laos the first week of February 2018 to assess the ongoing crisis in access to legal aid services; and determine how we may be able to help address the crisis.

Over the course of our assessment, we found that the right to legal aid in Laos is in a severe state of crisis, resulting in an unjust system of justice that places poor persons at constant risk of illegal arrest and detention, coerced and tortured confessions, and wrongful conviction. The 2016 Country Report on Human Rights Practices, published by the U.S. Department of State, lists “abusive prison conditions; lack of due process, including arbitrary arrest and detention” among the worst human rights abuses in Laos, alongside a political atmosphere that encourages discrimination in policing. The report further states that the Laotian government “neither prosecuted nor punished officials who committed abuses, and police and security forces acted with impunity.”

A significant impediment to access to legal aid is the severe dearth of lawyers. In a country of 7.5 million people, there are only 200 practicing lawyers. Even worse, the only lawyers engaging in practice are the ones who work in the appellate courts in the capital. This is despite the fact that juveniles, disabled, and mentally ill accused are guaranteed a lawyer under Laotian law. In a recent trial, a courtroom observer from The Asia Foundation witnessed four defendants go before the tribunal for their first court hearing: three criminal, one civil. None of the accused had a lawyer, and there was no telling how long they had been detained before this first court appearance.

Without access to legal aid, the majority of people in Laos do not have any meaningful access to justice. The Laotian government incentivizes villages against reporting crimes, instead encouraging them to engage in community arbitration, which can often lead to unfair procedures and unjust outcomes for the poor and vulnerable. Additionally, while these village mediation centers are only supposed to adjudicate civil matters, the ILF found evidence that they are often used in criminal matters as well.

However, there are signs of hope. The UN Development Programme reports that 20 new lawyers were licensed in 2017, a 10% increase. With your help, the ILF will work to see how it can assist Laos to provide meaningful access to legal aid to poor and vulnerable accused, as we have recently done in neighboring Myanmar.

ILF-Myanmar Advocate Greets Released Client
ILF-Myanmar Advocate Greets Released Client

With your support, over the last few months, the ILF has established a legal aid program in Myanmar and has begun defending the poor in court. With just our first few cases, we have already succeeded in showing the impact of having a qualified defense lawyer represent the accused in court by securing the pretrial release of poor and vulnerable accused charged with minor, nonviolent offenses. Denied access to a lawyer who can defend their rights, most criminally accused in Myanmar are illegally or arbitrary detained for months pending trial, even for very minor offenses.

This accomplishment was made possible through the International Legal Foundation’s unique and intensive mentorship model, whereby our lawyers are closely mentored and taught how to use the law to apply for their clients’ pre-trial release and to challenge arbitrary arrest and unlawful detention. The winning legal argumentwas developed and implemented through the close cooperation and mentoring of the ILF’s first two Myanmar legal aid lawyers by ILF experts and our first ILF-Myanmar International Fellow.

We are incredibly proud of the pioneering Myanmar public defenders working with the ILF in Myanmar to bring about change and ensure access to justice for the poorest and most vulnerable. Their story is also incredibly important as the ILF’s first two public defenders in Myanmarare women,working in a still male-dominated and socially conservative country.

In celebrating her success, we asked Ms. Yu Yu Aung, one of our first two ILF-Myanmar legal aid lawyers, to tell us why she became a defense lawyer for the poor. This is her story:

"I have always been dedicated to becoming a lawyer, but was discouraged from this by many people. Social norms, stereotypes and community perceptions support the idea that being a lawyer is not an appropriate job for a woman. People think that women should get stable, calm public service jobs, and jobs that keep them close to home. My parents thought that being a lawyer was not appropriate for a woman, and insisted that I study to be a teacher, which is more typical and socially acceptable. I told my parents that I would not go to university unless I could study law; fortunately, they eventually agreed.

During law school, there was both blatant and subtle gender discrimination. For example, girls have to get higher marks than boys to qualify to study certain subjects like law, medicine, and engineering—despite this, there are still more girls than boys in these top subjects! But still, professors clearly favor male students, and everyone looks for reasons to doubt female students’ abilities. If a male student has a girlfriend in university, people don’t care; but if a female student has a boyfriend, people claim she is wasting her time because she will just end up a housewife. And if a male student takes a long time to graduate, it is not a reflection on his ability or intelligence; but if a female student takes a long time, she is deemed incompetent.

After university, many of my female classmates became teachers or public servants instead of lawyers, but I persevered. During my Chamber Reading (a post-graduation training period), my supervisor would not invite me to meetings with male judges or clerks—it was a Boys Club that I was not allowed to enter. After my training period, I took the Court Service Exam to try to qualify to be a court officer; despite doing very well on the exam, I was not chosen. Instead, a male graduate, who had not even finished his training period, was chosen over me.

When I began representing clients, sometimes they would refuse to have a female lawyer, even though I would work pro bono. I gave 110% to all of my clients, but many were skeptical because I was a young woman and they wanted an experienced male lawyer. Still, I have had some big wins for my clients, and when I do, I call my parents to tell them about my success. I eventually won them over, so they know I chose the right profession and that I’m very good at it. Now that I am working with the ILF as a public defender, I am so happy that I didn’t get that court officer position!"

We’ve made incredible strides in Myanmar, but we still need your help. Please consider renewing your donation today and helping us to advance access to justice in Myanmar and around the world.

The Pazundaung Township Magistrate Building
The Pazundaung Township Magistrate Building

 

The ILF is excited to announce the launch of a new legal aid program in Myanmar, supported by the German Foreign Office and launched with the help of our GlobalGiving donors that will provide critically needed legal aid services to poor children, women and men accused of criminal offenses. The opening of a legal aid program in Myanmar has already proven to be an important new chapter in the years-long relationship between the ILF and the Government of Myanmar. When our work in Myanmar began in 2014, we provided advice and support to the government as they drafted and adopted the country’s first legal aid law. Now, we are able to work towards our goal of ensuring every person has equal access to justice in a country where most lack the means to hire lawyers to protect their rights.

There is a critical need for criminal legal aid services in Myanmar 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. Since our last report, ILF-Myanmar has set up an office in Yangon, and is in the process of hiring lawyers who fill this crucial gap. This year, we will open legal aid offices in Yangon and Mandalay, and in 2018, two more offices will be opened in underrepresented states and regions of the country. In Yangon, we’ve recently met with the Pazundaung Township Magistrate to express concern over human rights violations against indigent defendants. These meetings with local courts are essential to effective advocacy on behalf of indigent Burmese who are often falsely accused and improperly tried. The ILF looks forward to providing intensive mentoring and training to Myanmar lawyers over the next few months, and starting to appear in court to ensure that all indigent accused are provided their human right to a fair trial. This work would not be possible without the generous support of our GlobalGiving donors. Your support has provided us the opportunity to access the gap between law and actual practice in Myanmar, and has laid the groundwork for this important program.

Together, we will ensure that the poorest and most vulnerable receive access to justice

Program Dir. and Sr. Lawyer with local magistrate
Program Dir. and Sr. Lawyer with local magistrate
 

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The International Legal Foundation

Location: New York, NY - USA
Website: http:/​/​theilf.org/​
Facebook: Facebook Page
Twitter: @theilf
Project Leader:
Jennifer Smith
New York, NY United States
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