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 Home » Constitution Design » Questions for constitution makers in Nepal » Legal System » Access to Justice

Legal Aid


The Constitution could provide a right to legal aid (financial assistance in bringing certain sorts of cases). It could provide for a public defender - an office to defend people in criminal cases.

"Right to Counsel"

This is the most common form of legal aid: the right to the assistance of a lawyer paid at public expense if necessary. This concept is based by the principle of equality in justice for all rich and poor alike.

Constitutions

Many countries now have a constitutionally guaranteed legal aid programme. The Interim Constitution of Nepal says:

"Any indigent person shall have the right to free legal aid in accordance with law." But this gives a limited rights because a law is needed before it becomes effective.

The Sixth Amendment of United States Constitution guarantee to the right to counsel has been expanded to include the right to a paid counsel as well by the US Supreme Court decision over the years.

For more information on the Sixth Amendment of US Constitution click here:

For more information on the history of right to counsel in the USA click here:

The Indian constitution specifically enshrines the concept of Equal justice and free legal aid is promised in Article 39 A:

39A. Equal justice and free legal aid. -The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

But this is a Directive Principle and not a Fundamental Right, and cannot be enforced in the courts.

The Constitution of South Africa says:

Every accused person has a right to a fair trial, which includes the right

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly

This is a right (for the complete article click here)

But most of these constitutional rights apply only to criminal cases. Many people cannot afford lawyers to advise them or represent them in civil cases - which may be just as important in protecting human rights.

International Standards

The International Covenant on Civil and Political Rights (ICCPR) (which Nepal is a party to and is therefore bound by) in Article 14 of ICCPR guarantees equality before the courts and a "fair and public hearing". In spelling out the means by which these larger objectives are to be achieved, Article 14(3) (d) requires that all persons have the opportunity of counsel, must be notified of this right, and must have counsel provided if they cannot afford this. The actual words are:

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it

This also applies just to criminal cases.

For more information on this covenant and fair trial go to "What is a fair trial?"
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