Research Proposal

An analysis of the implementation of section 4 of the khyber Pakhtunkhwa Legal Aid Act,
2019: A case study of Peshawar

Introduction

The provision of legal aid is an essential component of any justice system, ensuring access to justice
for all, regardless of their socioeconomic status. It serves as a mechanism to uphold the rule of law,
promote equality before the law, and safeguard fundamental rights. Legal aid encompasses a broad
spectrum of services, including offering legal counsel, representing clients in court, and
providing assistance throughout legal proceedings. Its primary objective is to level the playing field,
ensuring that the law acts as a shield for the vulnerable, not a weapon against them 1. (Legal Aid: A
Cornerstone of Human Rights in Pakistan)

The origins of contemporary legal aid systems can be traced back to 1944 in Britain when Lord
Chancellor Viscount Simon constituted the Rushcliffe Committee. This committee was tasked with
providing legal advice to individuals and establishing a framework for providing counsel to those in
need. The recommendations put forth by the Rushcliffe Committee laid the foundation for legal aid
structures worldwide. The committee emphasized that legal aid is not a form of charity, but rather a
right that the state is obligated to support and safeguard. In proposing a nationwide system funded by
the state, the committee argued that maintaining the attorney-client relationship is essential for the
fair administration of justice. Furthermore, the committee recommended that legal assistance should
not be restricted solely to the low-income segment of the society but should also be available to
individuals who may not ordinarily qualify for aid1. (Daily times)

International human rights standards, including the International Covenant on Civil and Political Rights
(ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR), emphasize affordable and prompt justice as essential for human development, encompassing
the right to legal representation and a fair trial. The ICCPR (Article 14, paragraph 3(d)) stipulates the
right to legal assistance, especially for those unable to afford it, while the ECHR (Article 6(3)(c))
guarantees access to free legal aid when justice demands it. Legal aid must meet both financial
("means test") and justice-based ("merits test") criteria, as affirmed by the European Court of Human
Rights. Additionally, the Model Law on Legal Aid in Criminal Justice Systems provides a framework for
states to ensure comprehensive legal aid, recognizing the need for broader support beyond legislative
measures to ensure access to justice for all.

Legal aid in Pakistan finds its constitutional basis in the Islamic Republic of Pakistan's 1973
Constitution, which mandates the state to deliver affordable, prompt, and impartial justice. Although
not explicitly stated, various articles ensure the foundation of the legal aid mechanism. Article 4(1)
guarantees protection under the law, Article 10(1) asserts the right to consult and be defended by a
legal practitioner, Article 10A ensures the right to a fair trial, Article 25 declares equality before the
law, and Article 37(d) mandates the provision of inexpensive and expeditious justice. The legislative
initiatives for legal aid are reflected in various laws and rules. The Destitute Litigant Fund Rules (1974)
establish the right to legal aid in constitutional matters for destitute litigants. The Women in Distress
and Detention Fund Act (1996) aims to provide financial and legal support to women in distress and
detention. The Pakistan Bar Council Free Legal Aid Rules (1999) set criteria for providing legal aid
services to the poor and deserving. Additionally, the District Legal Empowerment Committees
(Constitution & Functions) Rules (2011) define legal aid and provide a process for its delivery. In
criminal cases, Order XXXIII of the Code of Civil Procedure, 1908, allows paupers to file lawsuits
without paying court fees. The High Court Rules (Volume V, Ch. 4-E) provide for legal representation
from public funds in criminal cases where the accused cannot afford counsel. The most recent
legislation, the Legal Aid and Justice Authority Act (2020), establishes the Legal Aid and Justice
Authority (LA&JA) responsible for overseeing legal aid provisions2. ( conceptualization of legal aid in
pakistan)

In a study titled "Understanding the Informal Justice System: Opportunities and Possibilities for Legal
Pluralism in Pakistan (2015)" it was found that 98.2% of respondents in a survey shared the
perspective that individuals belonging to lower socioeconomic strata lack access to justice within the
formal legal framework. Furthermore, 42.8% of participants noted that women, and 25.2%
highlighted landless peasants and agricultural laborers, similarly face hurdles in accessing formal
justice mechanisms. One key reason for the lack of access to the formal justice system, as perceived
by half of the respondents, is the high fees charged by lawyers for providing legal assistance 1.
(Courting the law)

The current structure of legal aid system in Pakistan comprises a Legal Aid and Justice Authority at the
central level, alongside legal aid agencies at the provincial level . Moreover, in 2011 the Law and
Justice Commission of Pakistan constituted District Legal Empowerment Committees (DLECs) at the
district level, providing legal aid to deserving litigants in almost 128 districts of Pakistan. Furthermore,
the Bar Council Rules of 1999 outline provisions for extending legal aid to indigent individuals.

In Pakistan, where the administration of justice faces numerous challenges, the implementation of
effective legal aid mechanisms holds paramount importance. A significant portion of Pakistan's
population is deprived from access to justice either due to the lack of financial resources or adequate
legal representation in court, undermining the constitutional right that mandates the provision of
affordable and timely justice and to eradicate all forms of exploitation.This denial of access
contradicts the substantive rights enshrined in the Constitution, which obligate the state to ensure
affordable and timely justice and to eradicate all forms of exploitation. Legal aid, as a state
intervention, plays a critical role in ensuring equality before the law1. (Daily Times)

Similarly, Khyber Pakhtunkhwa legal aid act 2019 was enacted to deal with the provision of legal aid
to indigent persons in the province. The Khyber Pakhtunkhwa Legal Aid Act of 2019, specifically
Section 4, represents a significant step towards enhancing access to justice in the region. This
research endeavors to undertake a comprehensive analysis of the implementation of Section 4 of the
Khyber Pakhtunkhwa Legal Aid Act 2019, focusing on a case study of Peshawar.

**Background**

Pakistan's legal landscape is characterized by a complex interplay of statutory law, customary practices, and
Islamic principles. The provision of legal aid has historically been limited, with marginalized communities
often facing insurmountable barriers to accessing justice. Recognizing the imperative to address these
disparities, the Khyber Pakhtunkhwa province enacted the Legal Aid Act in 2019, aiming to provide free legal
assistance to those in need.

**Statement of the Problem**

Despite the enactment of progressive legislation such as the Khyber Pakhtunkhwa Legal Aid Act 2019, the
effective implementation of legal aid mechanisms remains a challenge. Limited resources, bureaucratic
hurdles, and a lack of awareness hinder the realization of legal aid objectives. Furthermore, the efficacy of
Section 4 of the Act, which mandates the establishment of legal aid centers in specified areas, requires
thorough examination. This research seeks to investigate the extent to which Section 4 has been
implemented in Peshawar, identifying barriers to implementation and proposing potential solutions.

**Research Objectives**

- To assess the implementation of Section 4 of the Khyber Pakhtunkhwa Legal Aid Act 2019 in Peshawar.

- To identify challenges encountered in the establishment and operation of legal aid centers in the region.

- To evaluate the impact of legal aid provision on access to justice and legal outcomes for marginalized
communities in Peshawar.

- To propose recommendations for enhancing the effectiveness of legal aid mechanisms in Khyber
Pakhtunkhwa.

**Significance of the Study**

This research holds significance on multiple fronts. Firstly, it contributes to the existing body of literature on
legal aid in Pakistan, offering insights into the challenges and opportunities associated with its
implementation. Secondly, by focusing on Peshawar as a case study, this research provides context-specific
analysis that can inform policy and practice in the region. Thirdly, the findings of this study may serve as a
basis for advocacy efforts aimed at strengthening legal aid mechanisms nationwide. Ultimately, by
promoting access to justice and upholding the rule of law, this research endeavors to advance the cause of
justice and equality in Pakistan.

**Scope and Limitations**

This research focuses specifically on the implementation of Section 4 of the Khyber Pakhtunkhwa Legal Aid
Act 2019 within the jurisdiction of Peshawar. While the study aims to provide a comprehensive analysis,
certain limitations are acknowledged. These include constraints related to data availability, resource
limitations, and the inherent complexities of the legal aid landscape. Additionally, the scope of the research
is delimited to examining the establishment and operation of legal aid centers, excluding broader aspects
such as legal awareness campaigns and capacity building initiatives.

In conclusion, the analysis of the implementation of Section 4 of the Khyber Pakhtunkhwa Legal Aid Act 2019
in Peshawar represents a crucial endeavor in advancing access to justice and upholding the rule of law. By
identifying challenges, assessing impact, and proposing recommendations, this research aims to contribute
towards the realization of a more equitable and inclusive justice system in Pakistan.