Chapter III

REVIEW OF RELATED LITERATURE

This review will include a range of topics on the importance and

usefulness of legal aid from its development to the recent studies gathered from

books, journals, periodicals and other online references. The review will also

cover studies of legal aid from foreign literatures and study to local literature and

studies.

Legal aid was seen as early as 1200s, during the time were professional

lawyers first begun to appear in medieval Europe (Brundage, 1988). In 1500s,

Philip II of Habsburg lessened the jurisdiction of his Castillian chanceries in favor

of indigents, whom the former restrict to access to court (Kagan, 1981).

In 1863, the Working Women’s Union was established in the United States

of America. This is the society that was created for the purpose of aiding and

assisting people who needs legal help. Women dominated in the legal aid cause,

as they acted as reformed lay lawyers. It was only in 1876, where a male-

dominated society with the same purpose as the former – the New York Legal

Aid Society – was established (Dinner, 2017).

Yet it was during the Progressive Era wherein Americans have

established legal aid as a form in assisting those who are poor and indigent. It

became the start of the institutionalism of legal aid in America. In 1919, Reginald

Heber Smith’s Justice for Poor, was published and became famous. (Dinner,
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2017)In the book Smith (1919) challenged lawyers to make legal aid an

obligation for them, thus, giving poor people an access to justice. He further

emphasized that "without equal access to the law, the system not only robs the

poor of their only protection, but places in the hands of their oppressors the most

powerful and ruthless weapon ever invented" (Smith, 1920). The said book

influenced the American Bar Association to create the Special Committee on

Legal Aid Work. This has been one of the advancement in legal aid in the 20th

century (National Legal Aid and Defender Association, 2014).

Legal Aid was further strengthened in 1963 when the Supreme Court of

the United States ruled with the Gideon v. Wainwright case that the courts should

assign legal aid in a case by case basis, making it mandatory for the people to

provide legal assistance to litigants (Supreme Court of the United States, 1963).

The government of United States recognized “a responsibility to provide civil

legal assistance to those in needs. Providing legal aid in the context of mounting

fiscal limitations requires complex trade-offs. Scarce resources and rising costs

have compounded the already difficult choices inherent in distributing welfare

goods among members of society to carry the responsibility of providing legal aid

and assistance” (Breger, 1982).

Today, the right to have free access to court is a universal human right.

No one – not even those people who cannot afford a private counsel is denied to

such a human right. To further check on that, in 2012, the United Nations

adopted the UN Principles and Guidelines on Access to Legal Aid in Criminal

Justice System (2012). It declared on the first item of its annex, “Legal aid is an
 19

essential element of a fair, humane and efficient criminal justice system that is

based on the rule of law. Legal aid is a foundation for the enjoyment of other

rights, including the right to a fair trial, as defined in article 11, paragraph 1, of the

Universal Declaration of Human Rights, a precondition to exercising such rights

and an important safeguard that ensures fundamental fairness and public trust in

the criminal justice process” (United Nations Office on Drugs and Crime, 2013).

Furthermore, the UN Principles and Guidelines on Access to Legal Aid in

Criminal Justice System (2012) stated fourteen principles and eighteen

guidelines in the said document. The principles found in the document are first,

“Right to legal aid”, second “Responsibilities of the State”, third “Legal aid for

persons suspected of or charged with a criminal offence”, fourth “Legal aid for

victims of crime”, fifth “Legal aid for witnesses”, sixth “Non-discrimination”,

seventh “Prompt and effective provision of legal aid”, eighth “Right to be

informed”, ninth “Remedies and safeguards”, tenth “Equity in access to legal aid”,

eleventh “Legal aid in the best interest of the child”, twelfth “Independence and

protection of legal aid providers”, thirteenth “Competence and accountability of

legal aid providers”, and lastly “Partnerships” (United Nations Office on Drugs

and Crime, 2013).

The guidelines found in the aforementioned documents are entitled, first

“Provision of legal aid”, second “Right to be informed on legal aid”, third “Other

rights of persons detained, arrested, suspected or accused of, or charged with a

criminal offence”, fourth “Legal aid at the pretrial stage”, fifth “Legal aid during

court proceedings”, sixth “Legal aid at the post‑trial stage”, seventh “Legal aid for
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victims”, eighth “Legal aid for witnesses”, ninth “Implementation of the right of

women to access legal aid”, tenth “Special measures for children’, eleventh

“Nationwide legal aid system”, twelfth “Funding the nationwide legal aid system”,

thirteenth “Human resources”, fourteenth “Paralegals”, fifteenth “Regulation and

oversight of legal aid providers”, sixteenth “Partnerships with non‑State legal aid

service providers and universities”, seventeenth “Research and data”, and lastly

“Technical assistance” (United Nations Office on Drugs and Crime, 2013).

The UN Principles and Guidelines have established the basic standards

for the human right to legal aid in the criminal justice systems around the world

and to give practical directions as to how to warrant access to effective criminal

legal aid services (United Nations Office on Drugs and Crime, 2013).

In the Philippines, the earliest document that mandated legal aid is the

American-sponsored constitution of the Philippines, the 1935 constitution. The

document said in the third article, section three that “Free access to the courts

shall not be denied to any person by reason of poverty” (Philippines Constitution,

1935). The same right was also been included in the tenth section of the seventh

article of the Japanese-sponsored constitution of the Philippines. It stated that

“free access to the courts or administrative tribunals shall not be denied to any

person by reason of poverty” (Philippines Constitution, 1943). The 1973 and

1987 Constitution also included in their bill of rights the same right that person

who are poor should not be denied an access to courts. The former followed the

same wording as the 1935, while the latter stated in the eleventh section of the

third article that “Free access to the courts and quasi-judicial bodies and
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adequate legal assistance shall not be denied to any person by reason of

poverty” (Philippines Constitution, 1973; 1987).

The Philippines’s journey to create an institution that provides legal aid is

long. To make it to reality, the Philippines have created the Agricultural Tenancy

Commission, which then later renamed by the Republic Act No. 1199 as the

Tenancy Mediation Commission or TMC. With the Republic Act No. 3844

otherwise known as Agricultural Land Reform Code was passed on August 1963,

the Tenancy Mediation Commission was further renamed as the Office of the

Agrarian Counsel (OTAC). But as the time moves on, the need to include civil,

criminal, administrative, and labor cases that needed legal aid have surfaced.

Hence, the Citizen’s Legal Assistance Office or CLAO was established under the

Presidential Decree No. 1 and Implementation Order No. 4 of President

Ferdinand Marcos in October 1972 (La Salle Institute of Governance, 2003).

Today, the Philippines, has the Public Attorney’s Office. The

Administrative Code of 1987, Republic Acts 9406 and 9999 were the basis to

how the institution is created and established.

In the fifth chapter of the Executive Order 292, of the Administrative Code

of 1987, along with the Republic Act 9406, mandated the state to that the Public

Attorney’s Office, formerly known as Citizen’s Legal Action Office, is “the

principal law office of the government in extending free legal assistance to

indigent persons in criminal, civil, labor, administrative and other quasi-judicial

cases.” Furthermore, the institution should “independently discharge its mandate

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to render, free of charge, legal representation, assistance, and counseling to

indigent persons in criminal, civil, labor, administrative and other quasi-judicial

cases. In the exigency of the service, the PAO may be called upon by proper

government authorities to render such service to other persons, subject to

existing laws, rules and regulations" (House of Representatives and Senate of

the Philippines, 2006).

The Republic Act No. 9999 or known as “An Act Providing A Mechanism

For Free Legal Assistance And For Other Purposes” furthers the objective of the

Public Attorney’s Office. On the declaration of the policy, it stated that the State

should “value the dignity of every human person and guarantee the rights of

every individual, particularly those who cannot afford the services of legal

counsel.” It is also the “policy of the State to promote a just and dynamic social

order that will ensure the prosperity and independence of the nation and free the

people from poverty through policies and programs that provide adequate social

services and improve the quality of life for all.” In addition to these declarations,

the State “shall guarantee free legal assistance to the poor and ensure that every

person who cannot afford the services of a counsel is provided with a competent

and independent counsel preferably of his/her own choice, if upon determination

it appears that the party cannot afford the services of a counsel, and that

services of a counsel are necessary to secure the ends of justice and protect of

the party” (House of the Representatives and Senate of the Philippines, 2010).
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The current chief of the Public Attorney’s Office, further emphasizes the

importance of legal aid in the Philippines in our contemporary times. She said

that “Legal aid is a fundamental human right.” Furthermore, she added that

depriving someone of his or her right to counsel making him or her a victim of

injustice, may result to that person to run away to the mountains and became a

rebel against the government. Thus, she concluded that the government must

assist everyone who needs legal aid. She then declares that if “states are willing

to spend billions of dollars on antiterrorism or counter-insurgency measures, they

should spend just as much on strengthening the legal aid system” (Acosta,

2016).

The accomplishment report published by the Public Attorney’s Office

(2018), have shown that each lawyers have a huge capacity of caseloads. With

an overwhelming ratio of 6,366 clients or 465 cases per lawyer, the office still

assures the public that they have “skilfully facilitated the release and favourable

disposition of cases of indigent clients, by way of acquittals, dismissal of cases,

or for some other reasons” (Public Attorney's Office, 2018).

The Supreme Court (2017) on the other hand is not comfortable with this

prevailing concern for the lack of lawyers offering legal aid. So, to help boost the

numbers of lawyers doing legal aid, the En Banc of the court promulgated A.M.

No. 17-03-09-SC or the Community Legal Aid Service Rule. The promulgation

stated that new lawyers, since 2017, will now have to provide 120 hours legal aid

or pro bono for litigants who need it as part of the efforts to implement the
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constitutional mandate to free access to the courts and quasi-judicial bodies

(Supreme Court of the Philippines, 2017).

Other countries also have offices or institutions that work as a legal aid

service provider. In Scotland, the Scottish Legal Aid Board was their provider.

The South Africa has Legal Quality Assurance Unit, while Israel has Public

Defender’s Office and Argentina has Federal Public Defender General (United

Nations Office on Drugs and Crime, 2018).

In order to establish quality legal aid, the United Nations have adopt

measurements and standards to be placed as a basis for all providers around the

world. The United Nations see the importance “to establish service delivery

standards as a basis for providing legal aid. Example of it is how the providers

comply with ethical standards and prohibited behaviour. Furthermore, the United

Nations have set concrete organizational standards for the providers to be able

to perform well. First is employment of appropriately qualified staff. The legal aid

service provider must employ appropriately qualified staff and assign cases to

them that are commensurate with their qualifications, knowledge and experience.

Second, conditions of service (salary, pension, benefits, etc.) by legal aid

provider should endeavour to provide conditions of service that are, at a

minimum, comparable to those available in the prosecution service and

commensurate with the services they provide in order to ensure that it is able to

attract and retain high-calibre staff. Third, personal supervision and support of

the staff. They must be routinely supervised by a person with the necessary
 25

qualifications, knowledge and experience to provide such supervision, and other

appropriate mechanisms for supporting staff must be provided. Supervision

should include a review of a selection of cases worked on by the relevant staff

member. Fourth, training must be in place to determine the training needs of

staff, and appropriate training should be provided on a regular basis, having

particular regard to the need to develop the knowledge and skills necessary to

providing legal aid at the early stages of the criminal justice process, including for

children and other persons with special needs. Fifth, case files must be done in a

proper procedure. It must be in place to store case files for a specified period of

time and to enable file retrieval (for example, to cater for “repeat” clients and to

enable conflicts of interest to be identified). Sixth, caseload of the providers.

Mechanisms should be in place to ensure that staff do not have responsibility for

an excessive number of “live” cases, taking into account their qualifications and

experience and the complexity and seriousness of the cases. Seventh, quality of

case work. Mechanisms should be in place to assure and monitor the quality of

work performed in individual cases. For example, some legal aid bodies impose

a requirement that legal aid service providers submit a number of cases, or case

files, for peer review” (United Nations Office on Drugs and Crime, 2018).

The handling and practices of legal aid around the world varies. “The

American Bar Association in the United States has developed a detailed set of

“Criminal Justice Standards for the Defense Function”. On Diligence, Promptness

and Punctuality provides under (a): “Defense counsel should act with diligence

and promptness in representing a client and should avoid unnecessary delay in

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the disposition of cases. But defense counsel should not act with such haste that

quality representation is compromised. Defense counsel and publicly-funded

defense entities should be organized and supported with adequate staff and

facilities to enable them to represent clients effectively and efficiently” (United

Nations Office on Drugs and Crime, 2018).

In other parts of the worlds, for example, in South Africa, “the Code of

Conduct for legal aid professionals in Duty to the Court is to establish that “an

employee shall never deceive or recklessly or knowingly mislead the court.” This

is the general position in common law countries (e.g., Australia, New Zealand,

the United Kingdom, Canada and the United States). However, in Argentina the

lawyer has no duty to prevent a client from giving perjury. In the Netherlands, the

protocol for lawyers in police stations mentions that “because arriving at the truth

is paramount during the (police) questioning, the defence lawyer will, in principle,

act with some reserve, but not passively.” This is the general position in civil

law/inquisitorial systems (e.g., Chile). The New Zealand practice code

establishes that lawyers “should advise the client at the first reasonable

opportunity and throughout the case about the sentencing discounts for pleas of

guilty in terms of R v. Hessell. The lawyer will remind the client of the discounts

prior to any status hearing or call-over, and before any trial or hearing” (United

Nations Office on Drugs and Crime, 2018).

The delivery of legal aid is also different, there are countries that opt for

public defender schemes or private lawyer schemes. Others opt for paralegal
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schemes, university law schemes, and specialized legal aid service providers

(United Nations Office on Drugs and Crime, 2018).

Legal Aid is a form of Human Rights. It is a must that the form of legal aid,

specifically in the Philippine context, must be studied in order to measure and

analyse what is good for the people and what should be improve in order to

deliver the constitutional mandate to provide free access to the courts or

administrative tribunals to any person. Thus, it is necessary to evaluate how the

guidelines and procedures, how they handle the cases during trial, and how

effective the legal providers or lawyers in protecting the rights of the indigent and

poor people.

Knowing the guidelines and procedures of Public Attorney’s Office will

help the researcher understands the process of how people can be qualified and

be a client of PAO. Thus the researcher may conclude that these guidelines and

procedures may have an impact to the effectiveness of Public Attorney’s Office.

This will also give the researcher an opportunity to compare these guidelines and

procedures to other legal providers around the world.

The procedure in handling the case is also necessary to provide context to

as what and how the Philippines is doing right now in the providing legal aid.

Knowing how many people were served by PAO in criminal cases alone, will not

just be a lens to that type of case, but to all cases and services that PAO has

offered.