Delivery of Justice Sector Services to the Poor How Are Middle East Governments Addressing Gaps? The World Bank Paul Prettitore Senior Public Sector Specialist
Delivery of Justice Sector Services to the Poor How Are Middle East Governments Addressing Gaps?
Contents Acknowledgements.......................................................................................................................................................... v Justice Sector Services and Poverty – Introduction..................................................................................................... 1 Services Targeted to the Poor..........................................................................................................................................3 Assessing Service Delivery Gaps....................................................................................................................................9 Service Delivery Improvement Trends.......................................................................................................................... 13 Conclusion...................................................................................................................................................................... 19
Acknowledgements
T
rent or past Bank programs related to the justice sector.
ary 2011 to June 2012 in six Middle East and North
Egypt was included due to its traditional regional signifi-
Africa (MNA) countries, including the Arab Republic of
cance in the justice sector. Where relevant, references to
Egypt, Iraq, Jordan, Lebanon, Syria, and the West Bank
services in other MNA countries are included.
his study of justice services is based on qualitative
The selection of study countries was based on cur-
and quantitative research conducted from Janu-
and Gaza..
The author of the study is Paul Prettitore, Senior
The objective of the study is to facilitate a better un-
Public Sector Specialist, World Bank (pprettitore@
derstanding of the current state of delivery of justice
worldbank.org). Research and analysis was also provid-
services targeted directly to the poor (such as legal aid
ed by Zaid Al-Ali (Iraq); Razi Diab (Iraq and Syria); Hus-
services and deferment/waiver of court fees), or those
sein Hassan (Egypt); and civil society organizations,
services that are likely to have a considerable impact on
including: Justice Center for Legal Aid (Jordan); and Jus-
the poor (such as special services related to personal
ticia (Lebanon). Individual contributions came from
status cases). The following primary topics are ad-
Rasem Kamal (West Bank and Gaza); Maya Mansour
dressed:
(Lebanon); and Valerie Nussenblatt (international practices). The initial draft of the study was peer reviewed by
•
Outline of the current services available—legal aid
Zaza Namoradze, Director, Open Society Justice Initia-
services, deferment/waiver of court fees, and spe-
tive Budapest Office; Matthew Stephens, Senior Social
cial services related to personal status cases;
Development Specialist; and David Varela, Senior Public
•
Measuring services against demand;
Sector Specialist—each of whom provided valuable
•
Discussion of the primary obstacles to service de-
comments and input.
livery; and •
Assessment of current trends in service delivery improvement.
v
Justice Sector Services and Poverty – Introduction
T
he justice sector provides numerous critical ser-
aiding enforcement of these rules in an efficient and ef-
vices to citizens, often focused around court pro-
fective manner—an approach the Bank has advocated
ceedings involving criminal, civil, and family law
as a means to address poverty.1
cases. As with services in other sectors, those in the jus-
The procedures for accessing legal aid and waiver/
tice sector are often less accessible to the poor. Poor
postponement of court fees can be complicated and
people face obstacles, including a considerable lack of
cumbersome. Awareness of these services, and the pro-
awareness of available services, and a lack of under-
cedures for accessing them, remain limited even among
standing about the often complicated procedures need-
public sector officials and professionals responsible for
ed to access them. Services existing on paper may not
their delivery. Accessing services may prove prohibitive-
exist in practice. In other cases, relatively high court and
ly expensive, especially when informal payments must
lawyer fees pose an obstacle to utilization.
be made to secure necessary documents and official
In recognition of these obstacles, governments in
stamps. Adequate and sustainable funding to maintain
the MNA region have taken some steps to address
service delivery is also problematic, particularly in rela-
gaps in service delivery. There are two core services
tion to legal aid. Court officials already facing financial
targeted directly to users among the poor in the re-
shortfalls are reluctant to waive court fees. The result is
gion—legal aid services and waiver/deferment of court
that both services remain highly underutilized through-
fees. In addition, a number of governments have intro-
out the region.
duced special services related to personal status (fam-
A number of governments have developed special
ily law) cases. These initiatives are achieving mixed
services related to personal status issues. For example,
results.
access to alimony, child support and inheritance—affect a
Governments in each country included in this
large segment of the population and have a considerable
study— Egypt, Iraq, Jordan, Lebanon, Syria and the West Bank and Gaza—have established frameworks for legal aid and have introduced mechanisms for postponing or waiving court fees. Legal aid services serve as “gateway” services, which ultimately allow beneficiaries to access other services, for example, court proceedings, and entitlements, such as alimony, child support, or social welfare benefits. Such services provide tools to ensure that the poor are aware of the rules that affect them, thereby
The World Bank’s 2000/2001 World Development Report: Attacking Poverty, associates the rule of law, of which the justice sector is a key component, with better overall economic performance and poverty reduction by creating a predictable and secure environment for economic transactions. The rule of law has been defined as an environment where the formal rules are publicly known and enforced in a predictable way through transparent mechanisms. This includes rules that apply to all persons as well as to the state.
1
1
impact on the poor. This is one of the more positive devel-
While in some cases delivery of these services has
opments within the region. Development of such services
perhaps been more effective than in relation to legal aid
is not necessarily a new idea. Iraq, for instance, introduced
and waiver/postponement of court fees, more extensive
services related to alimony payments decades ago, al-
delivery is undermined by lack of awareness and an atten-
though at present they are not being delivered.
dant lack of resources to properly fund such services.
2 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
Services Targeted to the Poor Legal Aid Services
legal aid services remain concentrated on the provision of a lawyer, who is then responsible for providing infor-
For many poor persons, the normal avenues of dispute
mation, counseling and representation to the individual
resolution may prove inaccessible because of: the
client. In this model, only individual clients receive bene-
costs involved; the complicated nature of procedures;
fits and/or counseling, rather than a wider group with
the inability to procure legal information and represen-
similar needs, making this type of aid less efficient.
tation; and a general lack of knowledge about rights
Some countries (Lebanon, Syria, and Iraq) provide
and the means to enforce them. Legal aid servic-
state-sponsored legal aid services in both civil and crim-
es—comprising information, counseling and represen-
inal cases, while others (Jordan, the West Bank and
tation in court—are meant to aid the poor in overcoming
Gaza, and Egypt) do so only for criminal cases. The
these obstacles. Legal aid services are not only impor-
mandate for assigning a lawyer in a particular case is of-
tant in and of themselves, but also serve as “gateway”
ten delegated to the respective bar association.
services to help access other services, for example
Even where legal aid services are provided, they
those involving healthcare or alimony and child sup-
are not always available for all levels of court proceed-
port. In each of the countries covered by this study,
ings, for example, with respect to appeals and during
governments provide some type of legal aid in law, al-
pre-trial detention. Some services are limited to seri-
though not necessarily in actual practice. To be effec-
ous cases only, for example criminal cases involving
tive, these services need to be easily accessible by the
the death penalty or lengthy imprisonment. Legal aid
poor and targeted adequately to demand-side needs
services, in particular legal representation, are more
and priorities.
limited in religious courts (Lebanon, Jordan, and the
The first consideration in analyzing legal aid servic-
West Bank and Gaza).2
es is to determine the scope of services— that is, what
The second consideration is the institutional
types of services are offered, and for what type of cases.
mechanism for delivering such services. Lacking
Broadly speaking, legal aid services include public infor-
throughout the region are public sector institutions
mation, counseling and representation by a lawyer. In
responsible for overall management of the legal aid
this context, there are few public sector activities in the
agenda. The mandate of such an agency would
region related to the provision of information or counseling. Instead, the primary focus is on the provision of legal representation for court proceedings. State-sponsored
2 There do not appear to be any effective systems for providing legal aid services in military or security courts.
3
Table i – Provision of Assistance by a Lawyer Court Provision of Legal Aid
Criminal
Civil
Bar Association Provision of Legal Aid
Religious/Family Courts
Criminal Courts
Civil Courts
Religious/ Family Courts
X
X
Egypt
X
X
Iraq
X
Jordan
X
Lebanon
X
X
X
X
X
Syria
X
X
X
X
X
West Bank
X
X
X
X X
X
X
Sources of information: Egypt – Suspended Constitution of 1971, Law No.150 Year 1950 (Criminal Procedure Code), as amended, Law No.17 of 1983 (Advocacy Law); Iraq - Constitution of Iraq, Civil Pleadings Law No. 83 of 1969, as amended, Criminal Procedure Code No. 23 of 1971, Advocacy Law No.173 of 1965; Jordan – Constitution of Jordan, Law No. 9 of 1961 (Criminal Procedure Code), Law No.11 of 1972 (Law of the Regular Lawyers Bar Association); Lebanon- Constitution of Lebanon, Law No. 328 of 2001 (Code of Criminal Procedure), Legislative Decree No. 90 of 1983 (Code of Civil Procedure), Law Regulating the Sharia Judiciary in Lebanon of 1962, Law Regulating the Legal Profession No.8 of 1970; Syria - Legislative Decree No.34 of 1938 (Legal Aid Law), Law No.30 of 2010 (Law Regulating the Legal Profession); West Bank – Law No.9 of 1961 (Criminal Procedure Code), Law of Regular Lawyers, amended 1999.
normally cover a combination of the following: (i) set-
of lawyers or by requesting the bar association to make
ting government policy, and reporting on service deliv-
an appointment.
ery to the government; (ii) developing the scope of state-sponsored services; (iii) identifying resource
Provision of Services through Bar Associations – These
needs and allocating funding; (iv) certifying service
services are provided either by direct request to the bar
providers; (v) monitoring and evaluating services; and
association, or through a request by a judge for the bar
(vi) compiling data and conducting research on servic-
association to appoint a lawyer. Bar associations select
es. Only Syria has a public sector entity that manages
lawyers from a list of practicing professionals, or in some
and implements legal aid activities—the Legal Aid
cases, maintain a list of interested lawyers. Lawyers pro-
Commission of the Ministry of Justice. However, in
viding assistance receive a small fee, usually well below
practice it is not delivering any services. Iraq once had
the fee that would be paid in a private case. In some coun-
a system of legal aid officers in all courts, but this ser-
tries (Lebanon, the West Bank and Gaza, Syria, Jordan,
vice seems to have been discontinued.
and Iraq), bar associations can require lawyers to provide
3
In addition to systems where the state is directly
pro bono legal aid assistance, usually only once per year.
implementing services, there are three other mecha-
In practice, this is rarely done. Only in Lebanon is there a
nisms for delivering legal aid services in law and in
functioning, special mechanism within the bar associa-
practice
lawyers;
tion to manage legal aid services, in this case the Legal
(ii) through bar associations; and (iii) by civil society or-
Aid Committee of the Beirut Bar Association. However, it
ganizations (CSOs).
provides only limited services to half of the country.
including:
(i)
court-appointed
Court Appointment of Lawyers – Judges can appoint a lawyer directly when a poor person makes such a request during court proceedings. As Table I demonstrates, most countries provide for court-appointed legal representation. This is usually done by a judge directly appointing a lawyer, either from an established list
In Syria, two Legal Aid Committees are established each year with a single year mandate. The Syrian Bar Association is represented on the Committee, and services are provided through a request of the Ministry of Justice to the Bar Association based on a recommendation of the Legal Aid Commission. 3
4 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
Table ii – Waiver and Deferment of Court Fees Egypt
Iraq
Jordan
Lebanon
Syria
West Bank & Gaza
Wavier
Yes
Yes
No
Yes
No
No
Deferment
No
Yes
Yes
No
Yes
Yes
Sources of information: Egypt - Law no. 90/1944 on Judicial and Registry Fees, as amended by Law no. 126/2009; Iraq - Law 114 of 1981 (Code of Justice Fees); Jordan – Code of Civil Procedure; Lebanon – Legislative Decree No. 90 of 1983 (Code of Civil Procedure); Syria - Law No.27 of 2010 (Law of Judicial, Fees, Guarantees and Expenses); West Bank – Civil Procedure Code.
Delivery of Services by Civil Society – The third mecha-
for persons with limited financial means, as highlighted
nism for the delivery of legal aid services is through civil
in Table II.
society organizations (CSOs), which exist in each country,
There is no comprehensive data on the extent to
with the possible exception of Syria. The services provid-
which these services are actually provided by courts.
ed often fill gaps in services provided by public sector en-
Anecdotal evidence suggests instances are rare. Also
tities. However, services provided by CSOs are often highly
problematic, deferment of costs sometimes do not ap-
fragmented and limited. For example, an individual CSO
ply to procedures involving enforcement of court deci-
may cover only a single issue, such as domestic violence.
sions, putting the poor in the difficult position of having
Services may be available only in a certain geographic
to pay court costs before they actually receive financial
area. Further, services are rarely coordinated with other
benefits ordered in the judicial decision. Only services in
CSOs. Much of this fragmentation is, in turn, driven by do-
Lebanon and Egypt cover waiver of expenses related to
nor support and priorities. Governments have been slow
enforcement procedures.
to recognize the value of collaborating with CSOs, and CSO involvement in legal aid services has usually met with hostility from bar associations.
Special Services Related to Personal Status Issues
Waiver and Deferment of Court Fees
Personal status issues in the Middle East region include marriage, divorce, alimony, child custody and support,
Court fees vary widely throughout the region, with fees
and inheritance. These issues are addressed through
that are relatively low in Egypt, Iraq and the West Bank
court systems in two primary ways. The first is a sys-
and Gaza, moderately high in Lebanon and Syria, and
tem of religious-based courts administered separately
relatively high in Jordan.4 Even relatively low fees can
from the civil court system—as in Jordan, Lebanon,
pose an obstacle for the poor, especially when informal
and the West Bank and Gaza—but still part of the
payments must be made to court staff. In Egypt, a public perception survey completed by the Social Contract Center found that 78 percent of respondents considered the high costs of court filing fees to be an obstacle to accessing services.5 In addition, 80 percent of respondents reported that bribes and “tips” to civil servants at the courts represented another form of payment/cost of entry that impeded access to justice. To address this, governments have instituted services allowing for the waiver and/or deferment of court fees
4 Based on the indicator “Enforcement of Contracts” in the World Bank’s Doing Business Report 2012. The court costs, as a percentage of the value of the claim, are as follows: Jordan – 8 percent; Syria – 4.5 percent; Lebanon – 3 percent; Iraq – 2.3 percent; West Bank & Gaza – 2.2 percent; and Egypt – 1.3 percent. 5 Eighty-three percent of respondents also listed the length of court proceedings and the numerous procedures involved as obstacles to accessing court services. The Report of the National Survey of the Citizens’ Opinions on Corruption, the Judicial System and the Quality of Governmental Services in Egypt, The Social Contract Center, September 2009.
Services Targeted to the Poor | 5
Table iII – Access to a Lawyer – Personal Status Issues Egypt
• Not guaranteed in law, but can seek assistance through the Family Insurance Fund, though service provision is limited
Iraq
• Same process as for other civil court issues—requests can be made to the court or directly to the Bar Association
Jordan
• Not guaranteed in law, mostly provided through civil society
Lebanon
• Right to a lawyer guaranteed in law • Each of the eighteen state-recognized religions set their own procedures for personal status issues, either through religious or civil courts, or a combination of both
Syria
• Requests should be made to the Legal Aid Commission, which is not functional and only rarely provides services
West Bank & Gaza
• Not guaranteed in law, mostly provided by civil society
Sources of information: Egypt – Family Provision Act No. 11/2004; Iraq – Constitution of Iraq, Civil Pleadings Law No. 83 of 1969, as amended, Advocacy Law No.173 of 1965; Jordan – Law No.11 of 1972 (Law of the Regular Lawyers Bar Association); Lebanon- Constitution of Lebanon, Legislative Decree No. 90 of 1983 (Code of Civil Procedure), Law Regulating the Sharia Judiciary in Lebanon of 1962, Law Regulating the Legal Profession No.8 of 1970, Law on Family Rights of 1917; Syria – Legislative Decree No.34 of 1938 (Legal Aid Law), Law No. 30 of 2010 (Law Regulating the Legal Profession); West Bank – Legal Profession Law - Law of Regular Lawyers, amended 1999.
formal judiciary, with jurisdiction based on the religious
measures to address shortcomings. While not devel-
affiliation of the parties involved. In these systems, pro-
oped primarily to benefit the poor, these services may
cedures for accessing legal aid and waiver/deferment
have a considerable impact on them. The services fo-
of fees may be different than for other civil cases. The
cus on providing simplified and expedited mechanisms
second is a system whereby administration of personal
for accessing benefits such as alimony, child support
status cases is done within the regular civil courts, with
and inheritance. Other governments are considering
decisions based at least partly on religious law, as is the
similar initiatives.
case in Egypt, Syria and Iraq. Here legal aid and waiver/ deferment of court fees are the same as those provided in other civil cases.
Measuring Services Against Demand
Personal status issues are often the most common link between citizens and court systems. They also have a
There remains limited understanding of the demand-
considerable link with poverty, primarily in relation to ac-
side of services in the region. Demand-side data for the
cessing alimony, child support, and inheritance. For poor
justice sector is lacking in general, and in particular for
women, alimony and child support benefits may consti-
the poor. Justice sector institutions rarely compile and
tute a considerable portion of income and inheritance a
analyze existing data to ascertain demand in terms of
relatively considerable economic asset. Division of inheri-
priority services, the quantity of services needed, or the
tance is often fixed in law, but the general weak enforce-
quality of services delivered.
ment of judicial decisions undermines women’s access to
There have been limited attempts to better under-
benefits. Lawyers can help navigate the procedures nec-
stand demand through household or user surveys, or
essary to ensure enforcement. Alimony and child support
via direct consultations with poor communities. The
amounts are often negotiable, and a lawyer can help push
lack of automated case management systems within
for higher amounts. Social pressures also play a part. For
courts means developing data is both time- and person-
example, women often are subjected to pressure to re-
nel-intensive. Service providers do not make data and
nounce inheritance rights in favor of male relatives.
statistics widely available to the public. Access to infor-
In response to these gaps in service coverage,
mation frameworks is weak, thereby undermining initia-
some governments in the region, primarily in the West
tives by civil society and citizens to help assess demand.
Bank and Gaza and Jordan, have developed special
The result is a limited analytical basis to measure
6 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
service delivery against demand, or to inform how service delivery can be improved.
Table iV – Caseload Analysis Legal Aid Center Assessmenta Jordan
What limited data sources are available shed some light on demand. In Jordan, an analysis of the caseload of
Percentage of Caseload
Case Type
five legal aid centers operating in and around Amman found that the largest percentage of cases—77 percent— involved personal status issues (Table IV). The vast ma-
Personal Status (Family Law)
77%
Civil
11%
jority of cases—88 percent—involve civil law (civil and
Criminal
personal status cases), as opposed to criminal law is-
Non-court procedures (administrative) Total
sues. This is important to note, since most existing statesponsored legal aid services target criminal cases. Women are more than twice as likely to request legal aid services as men—at 71 percent to 29 percent, respectively (Table V). In relation to personal status issues, women
8% b
4% 100%
Assessment of caseload from 2011 for the six legal aid centers of the Justice Center for Legal Aid in and around Amman, out of a total of 925 cases involving legal representation. b For example, drafting contracts, powers of attorney and filing administrative paperwork. a
requested assistance in 94 percent of the cases. Though the analysis of the caseload of legal aid cen-
•
According to the Beirut Bar Association, roughly
ters in Amman provides only a narrow glimpse at de-
90 percent of the legal aid services they provide in-
mand, information from other areas in the region points
volve cases of serious crimes. This is likely due to
to similar patterns:
the fact that services for criminal cases are guaranteed by law, while the procedures for accessing ser-
•
Analyses of caseloads of legal aid service providers in
vices in civil cases remains highly cumbersome.
the Kurdistan Regional Government of Iraq demonstrate priority demand for civil and personal status issues, with a lesser demand for criminal issues.6 •
Consultations conducted with CSOs, poor communities and justice sector officials in other areas of Iraq show higher levels of demand for services related to divorce and inheritance proceedings, as well as for assistance with administrative procedures related to social welfare benefits.7
•
A pilot survey on the demand-side of services for Palestinian refugees in Lebanon also demonstrate strong demand for services related to civil issues, including personal status cases.8
Assessment of the caseload of legal aid centers operated by the Women’s Empowerment Organization (Quarterly Report, December 2011), covering Erbil, and Heartland Alliance for Human Needs & Human Rights (Quarterly Report, December 2011) in Duhok and Sulaimaniya. 7 A series of consultations to determine the demand-side of services were held in 2011, with consultations taking place in Baghdad (with representation from the central provinces), Basra and Erbil. The consultations were supported by the World Bank through a grant from the Japan Social Development Fund. 8 ‘Access to Justice in a Displaced Community: The Case of Burj el-Shamali Palestinian Refugee Camp in Southern Lebanon – A pilot Study’, Jaber Suleiman (2012). Demand also includes services related to criminal law and land disputes. 6
Table V – Breakdown of Legal Aid Case Type by Gendera Justice Center for Legal Aid – JORDAn Administrative
Criminal
Civil
Family
Total
Male
41%
40%
65%
6%
29%
Female
59%
60%
35%
94%
71%
Assessment of cases taken in 2009 and the first half of 2010 by five legal aid centers of the Justice Center for Legal Aid in Amman. ‘Legal Aid in Jordan – Towards the Establishment of a Framework for the Provision of Legal Aid for the Poor and the Vulnerable’, Justice Center for Legal Aid, July 2010. The breakdown for or cases filed in 2011 is 73 percent by women and 27 percent by men. a
Services Targeted to the Poor | 7
Demand involving civil cases, particularly landlord-
services related to civil (housing, employment, per-
tenant, employment, and personal status disputes, was also highlighted. •
sonal status) and administrative cases. •
Where separate systems of religious courts
Though not comprehensively measured, demand
(Jordan, Lebanon, Syria and the West Bank and
for information and counseling services appears
Gaza) or administrative courts (Jordan, Iraq) exist,
high throughout the region, as evidenced in consul-
state-sponsored legal aid services are less often
tations with CSOs and justice sector officials.
available in practice. •
Public information and awareness about justice
A greater understanding of the gaps between legal ser-
sector services are needed within poor communi-
vices demand and supply could be strengthened by further
ties, but comprehensive awareness initiatives are
analytical work. The gap is illustrated by the following:
limited. •
•
Demand for services in areas outside of urban cen-
Services are targeted heavily towards criminal
ters exists, though state-sponsored services are
cases, although there is considerable demand for
rarely delivered in such areas,
8 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
Assessing Service Delivery Gaps
D
elivery of services related to legal aid and waiver/
Eligibility for services is unclear – Eligibility for legal aid
deferment of court fees services to poor persons
services and waiver/deferment of courts costs is usually
remains problematic throughout the region for a
based on proof of poverty. However, often no concrete
number of reasons. Services remain highly underuti-
criteria for defining poverty are effectively in place. In
lized in general, and even when delivered, they are often
criminal cases the process is more straightforward, and
inefficient or ineffective. The primary gaps in service de-
is based on a request from the defendant. However, in
livery can be broadly summarized as follows:
civil cases, judges and local officials must assess poverty levels of the applicant without any comprehensive
Lack of policy underpinning development and implemen-
guidelines. Therefore, there is wide discretion in award-
tation of services – Beyond broad policy goals to improve
ing services.
the performance of the justice sector, there has been min-
Without clear guidelines, service providers spend
imal policy development in support of improved delivery
considerable personnel resources to determine eligibili-
of services to the poor. Since governments have tended to
ty for services that may involve only minor financial
view such services as incurring considerable, long-term
stakes. For example, in Egypt and Lebanon panels of
costs without clear links to development benefits, policy
judges, including higher court judges, must review and
development has not been a priority. Where policies do
issue decisions on applications for legal aid in civil cases.
exist as part of broader reform strategies, they may not be
This is an ineffective use of time for senior judges. In this
linked to specific activities or backed by resources to sup-
context, there have been no real efforts to link eligibility
port implementation. For example, the Judicial Upgrading
for justice sector services to other types of benefits for
Strategy of 2010–2012 in Jordan includes enhancing ac-
poor persons.
cess to justice as a component of the overall plan, yet there have been no concrete activities developed to fur-
Procedures for accessing services are complicated,
ther this agenda. In most countries, it is unclear which en-
cumbersome and expensive – Procedures for access-
tity is responsible for policy development, since ministries
ing legal aid services (Table VI) and deferment/waiver
of justice, judicial councils, and bar associations are all in-
of court fees are complicated. They usually involve nu-
volved in service delivery. Also unclear is how consulta-
merous steps, many of which involve obtaining docu-
tions on policy development and implementation should
ments from multiple entities. Documents used to
be conducted, especially in coordination with poor com-
demonstrate poverty, and thus eligibility for services,
munities and CSOs.
are rarely standardized, and can be difficult and
9
Table Vi – Problematic Procedures Related to Legal Aid in Civil Cases Measure
Service Delivery Impact
Countries Affected
High-level officials must review and decide on applications
• Inefficient use of personnel resources of courts
Iraq, Lebanon, Syria
• Numerous documents needed from different entities • Documents not standardized • Lack of guidelines for assessing poverty • Ad hoc decisions • Informal payments necessary
Iraq, Lebanon, Syria
• Inefficient use of court resources • Applicants may only require information/counseling, so no real need for court proceedings
Iraq, Lebanon, Syria
• Poor enforcement of judicial decisions the norm in MNA • If wins case, applicant may be required to reimburse court/lawyer costs without actually receiving financial award
Iraq, Syria
Obtaining necessary documentation on poverty difficult
Applications require court proceedings
Services do not cover procedures related to enforcement of court decisions
Sources of information: Iraq – Civil Pleadings Law No. 83 of 1969, as amended, Advocacy Law No.173 of 1965; Lebanon - Legislative Decree No. 90 of 1983 (Code of Civil Procedure); Syria – Legislative Decree No.34 of 1938 (Legal Aid Law), Law No.30 of 2010 (Law Regulating the Legal Profession)
expensive to obtain—especially if informal payments
first instance, one judge from the summary courts,
must be made to civil servants. In Iraq “poverty certifi-
and a member of the Public Prosecution—an incredi-
cates” must be obtained from municipal offices, though
bly inefficient use of the time of senior officials for a rel-
such bodies have no real means of determining pover-
atively minor procedure, especially since court costs in
ty. Often persons seeking legal aid must file requests in
Egypt are relatively low. In comparison, court costs in
court which are then reviewed by judges—even though
Jordan are relatively high, so deferment of costs can
the cases could be resolved by provision of information
be of considerable benefit to poor persons. Yet the
or counseling rather than judicial proceedings. Anec-
complicated nature of the procedures (Table VII) is a
dotal information from legal aid centers in Jordan and
serious obstacle.
the Kurdistan Regional Government (KRG) of Iraq shows that only about one-third of legal aid clients ac-
Limited Extent of Service Provision – Little comprehen-
tually need to access a court to resolve their dispute.
sive data is available on the frequency of service provi-
Thus, involving judges and other court staff in these
sion, as most courts and bar associations do not
procedures is an inefficient use of already overbur-
compile statistics. Available information suggests a
dened court resources.
general lack of service provision. For example, in the
Procedures for deferring or exempting court fees
West Bank and Gaza, lawyers are appointed in criminal
are equally complicated. For example, in Syria, where
cases only two to three times per month. The number of
fees can be waived, and the West Bank and Gaza,
legal aid cases handled by the Beirut Bar Association in
where fees can be deferred, procedures are time-con-
Lebanon remains relatively small: 430 cases in 2010;
suming for both court officials and applicants seeking
573 cases in 2009; 533 cases in 2008; 788 cases in
assistance. In Lebanon and Iraq, court fees can be
2007; and 503 cases in 2006.9 This is in contrast with a
waived if the applicant is awarded legal aid, but these
total of 925 cases of legal representation provided in
processes are themselves complicated and time-consuming. In Egypt, an application for exemption of fees must be decided by a committee composed of two advisors from higher courts, two judges from courts of
“Emerging Good Practices in Enhancing Delivery of Justice Sector Services to the Poor in MNA – Lebanon”, a study conducted by Justicia Foundation for Development and Human Rights (2011).
9
10 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
Table vii – Procedures for Deferment of Court Fees in Jordan STEP 1: Motion to Chief Judge of court requesting deferment of fees, accompanied by certificates from: • Department of Land and Survey stating the applicant does not own land; • Department of Vehicles and Licenses stating the applicant does not own a vehicle • Department of Social Security stating the applicant has a limited salary or no salary • any additional documentation requested by the Chief Judge, for example bank statements
• Compiling such documentation can prove expensive, time-consuming and humiliating for applicants • Inefficient use of a Chief Judge’s time for such a minor procedure
STEP 2: Supporting the motion with two witnesses attesting to the state of poverty of the applicant, or by certification of poverty by a local official (mukhtar).
• Compiling such evidence/documentation can prove expensive, time-consuming and humiliating for applicants • There are no standard criteria for proving poverty • Local officials have no standard certification or guidelines to establish poverty
STEP 3: The Chief Judge issues a decision approving or denying request to defer court fees
• There are no firm criteria or guidelines available to judges to ascertain eligibility for deferment of fees.
STEP 4: If the person whose court fees were deferred wins the case, they must pay the fees
• Repayment is required at the time the judgment in their favor is issued, not actually enforced, thus the fees will have to be paid before the party receives their financial award
Jordan – Code of Civil Procedure.
one year only by the Amman Justice Center for Legal
Governments have done little to expand the pool of
Aid. The minimal extent of service delivery can be at-
potential service providers. There is limited use of non-
tributed to: (i) complicated procedures, poor quality of
lawyer services that could provide assistance on legal
services, and lack of awareness, thereby limiting all re-
awareness, information and counseling, nor is there
quests for services; (ii) a lack of capacity of relevant in-
development of pro bono programs, either of which
stitutions to effectively deliver services; and (iii) limited
would reduce costs and make systems more sustain-
ability to deliver services outside of capitals or major ur-
able. Developing partnerships between government
ban centers.
bodies, bar associations and civil society could also prove effective. Though bar associations are able to
The provision of legal aid services is undermined by
provide only limited services, they often act to block
an unwillingness of lawyers to accept legal aid cases be-
engagement of other service providers, particularly
cause of the low fees involved. Payments range from as
CSOs. Additionally, CSOs in the region continue to
low as about $50 per case in Iraq, to $200 in Lebanon,
function under overly restrictive legal frameworks gov-
and up to roughly $700 in the West Bank and Gaza. All of
erning registration and operation, which can hinder the
these fees are low in relation to the effort required and
provision of key legal services.
fees lawyers can obtain for other types of cases. The systems of appointing lawyers from established lists, ei-
Lack of Focus on Provision of Information and Counseling
ther directly by courts or through bar associations, are
Services – Comprehensive public information activities
ineffective. The result is that usually only inexperienced
implemented by public sector bodies in the region are
lawyers are willing to provide services. With limited train-
rare, with CSOs primarily filling the gaps. The situation is
ing available for lawyers willing to provide legal aid, the
similar for counseling activities, which provide advice re-
quality of services can be quite poor.
lated to individual cases. Public information and cou‑
Assessing Service Delivery Gaps | 11
nseling services are often cheaper to deliver than legal
service providers and allowing feedback from service
representation services, and activities can be targeted to
users. The work of lawyers providing legal aid services is
groups, thus raising the number of beneficiaries. Anec-
not systematically reviewed for quality control by bar
dotal evidence suggests a considerable portion of the
associations or ministries of justice. Most initiatives to
needs of the poor can be addressed through information
improve evaluation practices are implemented by
and counseling, with only a minority of cases needing le-
CSOs.
gal representation in court. Recent trends globally point to the separate delivery of information and basic coun-
Insufficient Funding for Service Provision – Funding of
seling from legal representation, for example through
services is also problematic, especially since it is not al-
public information and counseling centers or kiosks.
ways clear who bears the costs of assigning lawyers to
Such trends do not appear to have yet emerged in the
cases. Laws allowing bar associations to require lawyers
MNA region.
to provide legal aid services often do not cover the issue of funding, and governments do not always compensate
Limited Quality of Service Delivery – Quality of services
bar associations for appointing lawyers at the requests
is undermined by a lack of comprehensive systems of
of courts. In Syria, for example, the Bar Association must
monitoring and evaluation. Statistics on the provision of
use its own funds. The Government of Lebanon does not
services are often basic, and are inadequate as a basis
provide funding to the Beirut Bar Association’s Legal Aid
for service delivery improvement. In addition such infor-
Committee, though it provides lawyers when requested
mation is rarely publicly accessible, thus limiting ac-
by courts in criminal cases. Bar associations complain
countability for non-delivery of services. There are
of inadequate budgets to provide such services. Servic-
limited mechanisms for systematic evaluation of ser-
es provided by CSOs are in turn highly dependent on as-
vices, both in terms of measuring performance of
sistance from foreign donors.
12 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
Service Delivery Improvement Trends overnments in the region are increasingly recog-
G
Missing from the region are special, independent or
nizing the importance of improving delivery of
quasi-independent bodies mandated with administer-
justice sector services to the poor. Although
ing legal aid services, including: policy development; fi-
progress is slow, initiatives aimed at improving services
nancial management; data analysis and research; and
are slowly being developed and implemented— while, at
monitoring and evaluation. Such entities are more com-
the same time, taking into account demand and service
mon in other regions, for example the Legal Services
delivery obstacles. Recent trends include:
Commission in the United Kingdom, the Legal Aid Board in South Africa, or the regional legal aid boards in the
Legal Aid Services and Waiver/ Deferment of Court Fees
Netherlands. Moves to establish similar bodies are underway in Poland, Bulgaria, Lithuania and Moldova. The closest to this type of entity in the region is the Legal Aid Commission in Syria, which in practice is barely func-
Developing Policy on Service Delivery – Several govern-
tional.
ments are attempting to address the policy gap. The approaches have taken several forms, led by different
Assessing the Demand-Side of Services – Broader at-
institutions. In Iraq, for example, the High Judicial Coun-
tempts to gauge the demand-side of services for poor
cil leads policy reform efforts. It established a special
communities through household surveys are currently
committee to operationalize service delivery improve-
underway. In preparation for the extension of legal aid
ments based on recommendations made during con-
throughout Jordan, a household survey of 1,000 families
sultations with justice sector officials, CSOs, and poor
on justice sector services was conducted in 2011 by the
communities. The Working Group on Legal Aid in the
Department of Statistics. An analysis of the results is un-
West Bank and Gaza, comprising the High Judicial
derway. The second Household and Socio-Economic
Council, the Ministry of Justice, and the Palestine Bar
Survey in Iraq, currently in progress, contains a series of
Association, aims to develop policies to support legal aid
questions related to justice sector services. These ques-
services for criminal cases. In Jordan, civil society is the
tions were added by the High Committee for Poverty Re-
primary driver of policy development. The Justice Cen-
duction, in recognition of the role justice sector services
ter for Legal Aid (JCLA), in coordination with the Ministry
can potentially play in addressing certain poverty issues,
of Justice, is developing policies on service delivery for
including access to employment, and housing and so-
implementation in legal aid centers that will extend
cial welfare benefits. In Lebanon, more targeted initia-
throughout Jordan.
tives to better understand demand for services related
13
to poor persons in pre-trial detention and those without
considerable time and frees resources that had been
identification documents are being implemented by
used to determine eligibility. Efforts to adopt sliding-
CSOs.
scale payments may allow for extension of service to
In increasing recognition of demand, service providers are extending services beyond criminal cases. For
persons who are not necessarily poor, but who cannot afford the full costs of legal actions.
example, the KRG Bar Association is promoting legislation that will allow it to provide comprehensive legal aid
Simplifying and Enhancing Access to Services – There
services for civil and criminal cases through centers
has been little attention paid to simplifying the compli-
placed in court facilities, which should also help to im-
cated procedures for accessing legal aid services, espe-
prove the geographical reach of services. CSOs are ex-
cially in relation to civil and personal status cases, or
panding legal aid services in civil and personal status
waiver/deferment of court costs. Many administrative
cases to balance the services already available for crim-
procedures are set in law rather than in regulations, so
inal cases. The JCLA in Jordan is expanding services
simplification requires legislative amendments. There is
outside of Amman through the establishment of new le-
also a common perception among stakeholders that
gal aid centers and the co-location of legal aid staff in of-
simplifying procedures will lead to increased demand
fices of CSOs providing social services in remote areas
for services, primarily by individuals who might other-
to meet service demands for rural inhabitants.
wise pay for services, thus reducing the income to courts when resources are already stretched. CSOs ac-
Clarifying Eligibility for Services – Proving eligibility for
tive in providing legal aid services in the region have
legal aid or exemption/waiver of courts remains compli-
been more effective in introducing simplified proce-
cated, especially for civil cases, due to unclear criteria.
dures for accessing their services, and have begun ad-
The Palestinian Authority is attempting to develop a sys-
vocating for simplification of procedures by courts and
tem of legal aid stamps that can be used to demonstrate
bar associations.
eligibility for legal aid services and deferment of court fees, though this would be limited to criminal cases only.
Developing and Integrating Service Providers – Govern-
In Syria, the Ministry of Labor and Social Welfare had
ments in the region have been slow to expand the pool of
been considering linking eligibility for legal aid services
service providers to better suit demand— at least par-
with eligibility for other social welfare benefits. The
tially in reaction to pressure from bar associations. The
Young Jurist Association in Iraq experimented with a
trend among many OECD countries10 and a number of
voucher system to demonstrate eligibility, although the
middle-income countries in other regions11 in recent
model was discontinued. Clarifying eligibility could help
years has been to develop mixed models of service de-
minimize resources needed for determining eligibility,
livery, mostly as a response to constraints on funding re-
thus freeing up resources for actual service delivery.
sources. Such systems build on a number of service
In some case, governments will automatically pro-
providers, including: private lawyers/law firms taking
vide legal aid to certain categories of vulnerable per-
cases on a contractual basis; state-funded public de-
sons. For example, Algeria automatically provides legal
fenders and civil legal aid offices; pro bono lawyers;
aid services to minors, single mothers, and injured
CSOs; and the use of paralegals, law students, and other
workers; Morocco to injured workers; and Lebanon to
professionals to provide advice, information, and coun-
persons with disabilities. In some cases, court fees can
seling services. Another option is to provide tools to
also be waived for special categories of persons. Egyptian courts waive fees for alimony and worker compensation cases, while Syrian courts waive fees for labor disputes. CSOs have been more proactive in developing eligibility criteria for their services. This saves
For example Canada, the Netherlands, New Zealand and Finland. 11 For example South Africa, Brazil and Chile. 10
14 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
allow persons to represent themselves (pro se) in court
services. CSOs are often able to obtain higher amounts
for civil cases.
of funding, but sustainability of programs is dependent
Most surprising in the region is the reluctance to
on the priorities of foreign donors.
build on the use of pro bono lawyers, since many coun-
The Bar Association of the KRG in Iraq drafted a
tries already have laws requiring such service from law-
new law, now under consideration, that would expand its
yers, usually coordinated through bar associations.
role in providing services in return for securing regular
Discussions are also limited in terms of developing spe-
government funding. Other bar associations collect fees
cial service providers to enhance public information.
on certain transactions, such as issuing powers of attor-
This trend is more common in other regions12, focusing
ney, that theoretically should help fund services. The
on the establishment of information ‘centers’, such as in-
Palestinian Authority is considering the establishment
formation kiosks to provide information related to the
of the Legal Aid Fund to cover the costs of legal aid ser-
most common cases (housing, administrative issues,
vices for criminal cases.13
consumer rights and family law issues). In Iraq, the High Judicial Council is seeking to develop a role for law school professors and students to provide legal aid services through legal aid clinic programs. In Jordan, the JCLA is developing a training program for newly-graduated lawyers to allow them to provide legal aid services during their mandatory, twoyear apprenticeship which must be completed without payment. A similar initiative is under discussion among CSOs in Lebanon. CSOs have been considerably more active in developing and implementing public information and counseling activities, but justice sector institutions are not linking with, or building on,
Personal Status Issues For several reasons, justice sector institutions in the region have been more proactive in developing services related to personal status issues. Officials tend to understand the strong demand related to personal status issues, especially since services related to marriage, divorce, and inheritance are some of the most common services provided by judiciaries. Improvements to such services, therefore, have the potential to impact a high numbers of citizens. They also recognize the numerous
such initiatives.
gaps in service delivery, including high costs, complicat-
Developing Sustainable Funding – Funding for legal aid
particular, there seems to be a strong link between per-
services remains a considerable challenge in the MNA region. This is not a unique situation, as even the most developed economies struggle with supplying adequate resources to meet demand. Governments outside of the region have partially addressed funding issues by: (i) increasing the pool of lower-cost service providers, such as pro bono lawyer networks and law school clinics; (ii) introducing sliding-scale payments for services; and (iii) developing mixed systems of public and private ser-
ed procedures, and weak enforcement of decisions. In sonal status issues (eg. alimony, child support, inheritance), and poverty. In order to enhance access to services, a number of personal status court systems do not apply fees for key services, such as divorce, or apply reduced fees as compared with civil courts. In Jordan, court fees and fees for powers of attorney are only a fraction of those in the civil court system. Court fees are also low or non-existent for some services in Lebanon and Egypt. When court fees do
vice providers. Within the region, the focus has been on securing sources of funding to support legal aid. These include legal aid funds, guaranteed government budget allocations, and fees on other services (powers of attorney, mediation, marriage contracts). The result is that service providers such as courts and bar associations can barely sustain the current limited provision of
12 For example, citizen advice bureaus (New Zealand, Netherlands, the United Kingdom), Family Law Information Centers (Ontario), citizen advisory centers run by CSOs (Czech Republic), Casas de Justicia (Peru) and the use of paralegals (South Africa). 13 The Legal Aid Fund would be comprised of representatives of the Public Prosecution, High Judicial Council, Palestine Bar Association, and Ministry of Justice.
Service Delivery Improvement Trends | 15
apply they can be waived, but procedures for doing so
legally in existence under the Ministry of Justice, it
can be as complicated as for other types of civil cases.
does not provide services. Tunisia created the Fund for
Some religious courts systems—for example, those
Alimony and Divorce Guarantee in 1993, which en-
in Jordan, the West Bank and Gaza, and Lebanon—do
sures payment of alimony and child support when
not require parties to be represented by a lawyer. This is
payments are not made and cannot be enforced
intended as a means to reduce costs and ease access.
through other mechanisms.14 Amendments to the Jor-
Since lawyers are not required, providing free legal rep-
danian Personal Status Code made in 2010 also pro-
resentation for poor persons has not been a priority.
vide for the establishment of an alimony fund. In Syria,
However, while not requiring a lawyer saves on legal fees,
the Ministry of Labor and Social Welfare had drafted an
not having legal representation can be a detriment in
Alimony Fund Law for consideration.
complicated cases. Courts have done little to provide
The only two funds presently active in the Middle
support to persons representing themselves in court,
East region are the Alimony Fund in the West Bank and
such as making information easily available, and simpli-
Gaza, providing services since 2007,15 and the Family In-
fying and standardizing court forms. Since comprehen-
surance Fund16 in Egypt, established in 2004. The latter
sive legal aid assistance often remains more limited in
functions as a non-profit fund affiliated with Nasser So-
religious courts, the poor are at a distinct disadvantage,
cial Bank. A similar fund should start services in Jordan,
especially if an opposing party can afford a lawyer.
once the relevant operating regulations are adopted.
In addition to reducing costs and eliminating the
Both the West Bank and Gaza and Egypt funds provide
need for legal representation to enhance overall ac-
direct alimony and child support payments to women
cess to services, courts have also developed special-
when judicial decisions are not enforced.
ized services targeted directly to vulnerable persons.
Although addressing an important need, services
While not aimed directly at the poor, these services are
related to these funds remain underutilized. The Alimo-
likely to have a considerable impact on this group be-
ny Fund is operational only in the West Bank, and its
cause such services cover issues of importance such
beneficiaries are limited. In Egypt, no data on the num-
as alimony, child support, and inheritance. These new
ber of beneficiaries is available. There are a number of
services include improved procedures for accessing
reasons for lack of services, including: (i) the lack of
alimony and child support, and protection of inheri-
awareness of services among potential beneficiaries,
tance rights (Table VIII).
and the inability of the Funds to conduct effective out-
In addition, several governments have developed
reach; (ii) inadequate staffing to provide more compre-
programs related to ensuring alimony payments
hensive services; (iii) insufficient funding to cover costs
through special, independent funds. The objective is to
related to the payment of benefits, especially if the
ensure women receive alimony and child support pay-
number of beneficiaries were to rise; and (iv) overly
ments when court decisions are not enforced. En-
complicated procedures for accessing services.
forcement of judicial systems remains problematic throughout the region. A survey conducted by the Alimony Fund in the West Bank and Gaza found only around 7 percent of Sharia Court decisions awarding alimony were enforced. Alimony funds are not a new concept. Iraq established an alimony fund in the 1960s. Although it is still
Law 93–65 of 5 July 1993. Alimony Fund Law No. 6 of 2005. Though the legal mandate of the Fund covers both the West Bank & Gaza. 16 Family Provision Act No. 11/2004. 14
15
16 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
table viii – Simplified Services for Personal Status Cases Expedited Alimony/Child Support Payments • Alimony can be requested at time of filing for divorce, rather than waiting for finalization of the divorce (Jordan)
• Developed to address the fact that divorce proceedings can take years to finalize, during which time women do not have access to alimony payments. This has a particularly negative economic impact on poor women.
• Alimony can be paid immediately upon request rather than waiting for a court decision awarding alimony—“expedited alimony” (Iraq, Jordan).
• Also developed to address the fact that divorce proceedings can take years to finalize, which has a negative impact on poor women who need access to alimony and child support immediately. • In Jordan, two conditions must be met: 1) a guarantor is provided to guarantee re-payment of alimony sums if the subsequent court decisions does not provide for alimony and 2) producing a witness stating the applicant is able to re-pay alimony payments if necessary. Similar procedures also allow for expedited child custody. • It is unclear to what extent this service is functional in Iraq.
Access to Inheritance • Revisions of the process of takharoj, so that a female heir must wait three months after being awarded inheritance rights before such rights can be renounced and transferred to other heirs (Jordan) • Alternatively, rights to land can be transferred through the Department of Land and Survey only after rights have been registered in the name of the female heir, so that a female heir is aware of her actual rights before renouncing them (Jordan)
• These measures have been put into place to address the strong societal pressure women face in renouncing inheritance rights in favor of male relatives, which has a particularly negative impact on poor women as inheritance may be the primary means of transferring wealth.
Jordan – Personal Status Code, amended 2010.
table ix – Alimony Funds, West Bank & Gaza and Egypt Mandate To provide payments for alimony and child support when court decisions are not enforced
Reason for Establishment There are numerous problems with the enforcement of judicial decisions in a timely and effective manner
Funding • Reimbursement from debtor, with financial penalties, through automatic salary reductions for civil servants, and liens on bank accounts and motor vehicles • Administrative fees levied on registration of births, marriages and divorces • Government contributions • Private donations
Beneficiaries • West Bank & Gaza – 150 beneficiaries (2007–2009); 400 beneficiaries (2009–2010) • Egypt – official data is unavailable, anecdotal information points to limited number of beneficiaries West Bank and Gaza – Alimony Fund Law No. 6 of 2005; Egypt – Family Provision Act No. 11/2004.
Service Delivery Improvement Trends | 17
Conclusion
I
mproving justice sector services to benefit poor per-
comprehensive understanding of the demand-side of
sons is not a novel idea in the region. All governments
services is a start. Initiatives are underway in Jordan and
have targeted services toward them. Legal and regu-
Iraq through household surveys that include the justice
latory frameworks, and to a lesser extent institutional
sector. There are a number of other useful sources of in-
frameworks, exist to underpin service delivery. Yet there
formation not currently utilized, including: (i)analysis of
remain considerable gaps in implementation. Weak un-
the caseloads of existing legal aid service providers
derstanding of demand undermines proper targeting of
(CSOs and bar associations) and institutions address-
services. There are no public sector institutions effec-
ing public sector complaints (administrative courts,
tively developing policy, or managing, monitoring and
complaints hotlines, ombudsmen); (ii) assessment of
evaluating service delivery. Decision-makers are reluc-
caseloads of courts located in areas of high poverty; and
tant to expand the pool of service providers beyond law-
(iii) direct consultations with poor communities and
yers. Eligibility for services is often unclear, while
CSOs working with them. Justice sector institutions
procedures for accessing them are complicated and ex-
could more comprehensively compile and analyze data,
pensive. The considerable lack of public awareness
and make such data more easily available to the public.
leads to limited requests for assistance. Service delivery
Such information can also highlight problematic servic-
is further undermined by inadequate, and mostly un-
es outside of the justice sector.
sutainable funding.
In terms of developing policy toward and managing
The result is that legal aid, waiver/postponement of
legal aid services, international experience suggests
court fees and special services related to personal status
benefits related to having an independent, or quasi-in-
issues remain highly under-utilized throughout the re-
dependent, institution overseeing legal aid services.
gion. Developing a proper framework for services to ben-
Mandates can include policy development, planning
efit the poor requires experimenting with different types
and staffing of legal aid providers, allocation of resourc-
of properly-targeted services, delivery mechanisms and
es, strategic guidance, monitoring and evaluation, re-
institutions. Governments in the Middle East have been
search and analysis, and advising governments on
slow to experiment in order to develop formulas best
reforms. If governments in the region are serious about
suited to their needs. There is much in terms of local ini-
providing legal aid services, public sector institutions
tiatives within the region that can built upon, and much
need to take a more active role in implementing these
experience globally that can help inform further reforms.
responsibilities. Similar measures can be developed to
There are a number of measures that could help
support alimony funds and other special services. In
close the gaps in service delivery. Developing a more
many instances, CSOs and religious courts have been
19
more proactive in developing polices related to their
dents and apprentice lawyers, with proper training,
own services, such as legal aid and special services cov-
could also be integrated. An independent or quasi-inde-
ering access to alimony and child support payments,
pendent agency or committee would aid in managing
and other public sector institutions can learn much
these systems. International practices provide much ex-
from these initiatives.
perience in experimenting with such mechanisms.17
Eligibility criteria for services needs to be clarified
In one area the Middle East is ahead of the curve, that
and simplified. Current criteria, resting often on an un-de-
is in requiring lawyers to perform a certain amount of pro
fined status of poverty, are difficult and time-consuming
bono assistance per year. Such arrangements are under
for service providers, especially court staff, to administer.
discussion in a number of jurisdictions outside of the re-
Potential beneficiaries spend too much time and money
gion, but in the Middle East, governments need to make
collecting documents to prove eligibility. Further, there is
them more effective in practice, as well as in law. The con-
considerable discretion in awarding services.
cept of self-representation (pro se) could be developed to
Global trends provide some options: defined in-
support persons in court proceedings not requiring law-
come/ asset level assessments to prove eligibility; linking
yers, and could have a considerable, positive impact in
eligibility to existing social programs; standardizing cer-
personal status and other civil cases impacting the poor.
tificates confirming poverty; electronic access for service
The gap in service delivery outside of major urban areas
providers to proof of assets and income of applicants;
can be addressed by mobile service providers and using
and providing eligibility for lower cost services, such as in-
local expertise to provide more services linked to infor-
formation and counseling, to all citizens while restricting
mation and counseling. Public awareness can be im-
more expensive services, such as representation by a
proved through information centers, desks and kiosks,
lawyer, to those most in need. This is an area where CSOs
working in cooperation with CSOs and local officials.
in the region tend to lead the way, developing clear and simplified eligibility requirements for their services.
There are a number of ways to improve the quality of services. Proper training programs should be estab-
Procedures for accessing services once eligibility is
lished for existing service providers. This includes cur-
established also need to be simplified and made more
rent legal aid service providers, such as lawyers
effective. Necessary forms for accessing legal aid and
appointed by court and bar associations, judges, court
special services related to personal status cases, and for
administration staff, CSO staff and local experts.
waiving/postponing court fees, can be simplified and
It should also include new providers, such as apprentice
standardized. They can also be made more easily avail-
lawyers, law students and community leaders. For ser-
able to the public, for example by building on existing e-
vices related to waiver/postponement of court fees or
government initiatives that provide forms online. While
personal status cases, judges and court staff need to be
online availability of forms could be helpful, attention
better trained on the availability of services and proce-
should be paid to reaching illiterate persons without in-
dures for delivering them. They also need to be trained
ternet access. Public information campaigns and coun-
to better support persons representing themselves in
seling activities can be geared toward informing
court. A short training module on justice sector services
potential beneficiaries about forms and procedures.
and poverty could be implemented through judicial
And procedures for appointing pro bono lawyers can be
training institutes. Proper monitoring and evaluation
strengthened to ensure beneficiaries receive proper
mechanisms need to be put into place to ensure that the
representation.
delivery and impact of services can be measured effec-
The extent of service delivery can also be enhanced. Delivery of legal aid services tends to be more successful where the pool of service providers combines public sector institutions, bar associations, CSOs, and private lawyers and law firms in a coordinated manner. Law stu-
17 For example, England and Wales, the Netherlands and South Africa have comprehensive systems that have undergone considerable reform to better balance policies, needs and resources, and thus offer considerable lessons.
20 | Delivery of Justice Sector Services to the Poor: How Are Middle East Governments Addressing Gaps?
tively. This should include a mechanism for obtaining di-
Doing so would have the added benefit of reducing ad-
rect feedback from beneficiaries.
ministrative costs borne by public institutions.
Perhaps most difficult to address are issues related
Other measures include: enhancing the pool of
to funding and sustainability of services, and reconcil-
lower- cost service providers, such as law students and
ing costs with the quality of service delivery. As a first
paralegal-type professionals; instituting co-payment
step, MNA countries should aim to make services as ef-
for services for applicants able to pay even minimal
ficient as possible to minimize costs. Addressing the
amounts; establishment of legal insurance schemes;
gaps in service delivery assessed in this study would be
and introduction of self-representation tools. Once sys-
a useful first step. Some improvements can be intro-
tems are made more efficient, governments will have a
duced with little to no cost—such as simplifying proce-
better understanding of the actual costs involved and
dures for proving eligibility and accessing services.
can plan accordingly.
Conclusion | 21
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