This article suggests conducting a thorough evaluation of Fiji’s Legal Aid system, which was established in 1998.
The Legal Aid Commission has been enshrined in the 2013 Constitution, guaranteeing its autonomy in operations, administration, and finances.
A comprehensive assessment, akin to a health check or operational audit, is long overdue to gauge its effectiveness in contributing to the justice system.
While some may perceive this recommendation as detached from the reality faced by the marginalised people, who rely on free legal aid, it remains imperative to scrutinise the system’s budgetary allocation and its efficacy in improving access to justice for those facing financial hardships.
Purpose
The overarching purpose of the Legal Aid Commission (LAC), as reflected in the Legal Aid Act 1966 and the Constitution, is to provide free legal aid services to the improvised or those who cannot afford the services of a legal practitioner.
This is also reflected in the Commission’s vision “to provide access to justice through professional, efficient and quality legal aid services” and the mission “to provide greater access to justice through quality legal aid services to those who are unable to afford such assistance, including women, children and those with special needs”.
The notion of access to justice is fundamental to the rule of law, but it should be reviewed in the context of the legal maxim that “justice delayed is justice denied”. This maxim suggests that if legal redress or equitable relief for an injured party is not provided in a timely manner, it is the same as no remedy at all. The principle underlines the right to a speedy trial and other rights designed to expedite the legal process.
Delayed justice
These instances are drawn from cases managed by legal aid attorneys. One example involves a rape case that lingered in court for six years. The defendant, a retired civil servant accused of raping a minor, lacked medical evidence supporting the charge.
Despite being represented by legal aid, he endured weekly reporting to the police station throughout the protracted trial.
Ultimately, the prosecution opted for a “nolle prosequi” upon being apprised of the situation.
This scenario prompts questions about the proficiency of the legal aid lawyers involved, particularly regarding their failure to submit a “no case to answer” motion during that duration.
Another illustration concerns a family court proceeding revolving around a divorce initiated by the wife. The husband, represented by legal aid as the respondent, opposed the divorce and pursued custody of their children.
Despite the wife satisfying the mandatory 12-month separation period, the husband, with legal aid representation, prolonged the divorce proceedings for over two years.
However, the custody dispute, stretching over three years, persists primarily due to frequent adjournments requested by legal aid lawyers.
These attorneys often rotated, occasionally appearing unprepared during court sessions.
Additionally, vital reports crucial to the case, including those from the child’s legal aid lawyer and welfare officers, were not submitted, further prolonging the hearing.
Consequently, the children’s living situation remained precarious, with their residence shifting among relatives amidst the ongoing legal battle.
This scenario prompts concerns regarding the children’s best interests and well-being, as well as the equitable dispensation of justice in the matter.
What is justice?
Justice is a complex concept that encompasses fairness, law, morality, and equity. In a broader sense, justice is about maintaining social order through the rule of law, ensuring that individuals’ rights are respected, and holding those who violate the laws accountable.
The legal system defines and enforces justice through a structured framework of rules, procedures, and institutions that interpret and apply laws within a jurisdiction. Justice refers to treating everyone fairly and impartially and ensuring that their rights are respected and protected. It is often pursued through legal systems, social institutions, and moral frameworks to resolve conflicts, punish wrongdoing, and uphold rights.
The legal system defines and enforces justice through laws, institutions, procedures, and principles designed to ensure fairness, uphold rights, and resolve disputes. This is provided through the following:
• q Legal framework: Laws established by the legislation that define behaviour considered legal or illegal and set out individual responsibilities of individuals and entities within society.
• q Courts and legal institutions: Courts within the legal system interpret and apply laws to resolve disputes and administer justice.
• q Adversarial process: In our legal system, disputes are resolved through an adversarial process, where opposing parties present their arguments and evidence to a neutral judge. This allows each party to advocate for their interests and ensures a fair and impartial decision based on the case’s merits.
• q Due process: Refers to the principle that individuals are entitled to fair treatment and procedural protections under the law. This includes the right to a fair trial, the right to legal representation, the right to question witnesses, and the right to appeal decisions.
• q Punishment and rehabilitation: In criminal cases, the legal system enforces justice by imposing penalties on those guilty of violating the law. Rehabilitation aims to help offenders reintegrate into society and prevent future criminal behaviour.
• q Civil remedies: In civil cases, where disputes involve private rights and obligations rather than criminal offences, the legal system provides monetary compensation, injunctions, or specific performance of orders to restore injured parties to their rightful position and resolve conflicts.
Through these mechanisms, the legal system promotes justice by upholding the rule of law, protecting individual rights, resolving disputes fairly, and holding wrongdoers accountable for their actions. However, the legal system’s effectiveness in achieving justice varies, depending on factors such as legal representation, procedural fairness, judicial independence, and societal attitudes towards justice and equality.
Access to justice
The mechanisms within a legal system would only be helpful if they are accessible to the people. Indeed, access to justice transcends mere existence of legal frameworks; it hinges on the meaningful accessibility of these mechanisms, especially for the most vulnerable or marginalised individuals.
A legal system that proves inaccessible effectively suppresses justice to those who require it most, thereby perpetuating disparities and eroding the foundations of the rule of law. Consequently, an inaccessible legal system can give rise to a myriad of injustices, some of which are elaborated below.
l Exclusion: People who cannot afford legal representation or navigate complex legal procedures may be effectively excluded from seeking redress for grievances or defending their rights.
l Inequality: Without access to legal resources and assistance, individuals from disadvantaged backgrounds may face unequal treatment before the law compared to those with more significant resources or legal knowledge.
l Undermining rights: Lack of access to justice can undermine fundamental rights and freedoms, as individuals may be unable to enforce their rights or hold authorities accountable for abuses.
l Disempowerment: When people cannot access legal mechanisms to address their grievances, they may feel powerless and disenfranchised, eroding trust in the legal system and institutions.
l Access to justice is considered a fundamental human right. It is essential to uphold the rule of law, promote social justice, and foster trust and confidence in the legal system. Access to justice must be addressed holistically to meet the people’s needs. While free legal aid is essential to ensuring access to justice, it’s certainly not the only aspect. Access to justice is a multi-faceted concept that requires a comprehensive approach to address various barriers individuals may encounter when seeking to assert their rights or resolve legal issues.
Access to justice is indeed a cornerstone of human rights, crucial for upholding the rule of law, advancing social justice, and nurturing trust and confidence in the legal system. To effectively meet the needs of the populace, access to justice must be approached holistically.
While free legal aid stands as a vital component in ensuring access to justice, it represents just one facet of a multifaceted concept. Addressing the diverse barriers individuals face when attempting to assert their rights or negative legal matters necessitates a comprehensive approach. This entails addressing systemic issues, providing legal education and awareness, improving affordability and efficiency of legal processes, and ensuring equitable access to legal resources and representation.
Review of Legal Aid in Fiji
Since its inception, the Legal Aid Commission has grown, as has the scope of legal assistance it provides. The threshold for free legal aid is $30,000, the applicable income tax threshold. This means that if you earn less than $30,000 per annum, you don’t have to pay income tax and are entitled to free legal aid. The impact of free legal aid on the justice system needs to be given a health check – an audit of its impact or contribution to justice. The following may need to be considered in such an exercise.
The adversarial system and free legal aid
The adversarial legal system and free legal representation can be lethal to justice, particularly in civil matters such as family disputes.
The adversarial system relies on two opposing parties presenting their cases before a neutral judge. While this system is designed to ensure a fair and impartial resolution of disputes, it can also foster an environment of contention and hostility, particularly in emotionally charged cases like family disputes.
The introduction of free legal aid into this equation can exacerbate the adversarial nature of the legal process in several ways:
- a) Uneven playing field: If one party has access to free legal aid while the other does not, it can create an imbalance of power and resources. The party provided with legal aid may be better equipped to navigate the legal system, present their case effectively, and secure a favourable outcome, potentially leading to feelings of resentment and injustice on the part of the party that must pay for legal representation.
- b) Prolong litigation: Free legal aid can enable individuals to pursue litigation more aggressively or prolong proceedings unnecessarily, knowing they are not personally bearing the financial costs. This can result in prolonged and acrimonious legal battles, particularly in highly emotional family disputes.
- c) Increased hostility: The adversarial nature of the legal process, coupled with the emotional stakes involved in family disputes, can contribute to heightened hostility by enabling parties to pursue aggressive litigation strategies without concern for the financial consequences.
Exploring alternative dispute resolution mechanisms, such as mediation or collaborative law, may be necessary, as they prioritise cooperation and mutual agreement over adversarial litigation. Additionally, reforms to the legal aid system, such as means-testing or stricter eligibility criteria, could help ensure that resources are allocated more equitably and efficiently, reducing the potential for abuse or manipulation of the system.
Ultimately, striking a balance between access to justice and the adversarial nature of the legal system is essential in addressing the challenges posed by free legal aid, particularly in civil matters like family disputes where emotions and relationships are at stake.
The threshold for legal aid
Lowering the threshold for free legal aid to those earning $15,000 or less per annum would prioritise assistance for the most financially vulnerable individuals who may otherwise struggle to afford legal representation. This would ensure that those who cannot pay for legal services receive the support they need to access justice.
Introducing partial assistance for individuals earning between $15,000 and $30,000 per annum acknowledges that while they may not qualify for totally free legal aid, they may still face financial constraints that hinder their ability to access legal representation. Assessing eligibility for partial assistance on merit allows for a more nuanced approach, considering household expenses, dependents, and other financial obligations. Implementing these changes would ensure that legal aid resources are targeted more effectively to those in need and promote fairness and equity in providing legal assistance. Additionally, it could help alleviate some of the strain on the legal aid system by directing resources where they are most needed and reducing the potential for abuse or misuse of the system. Overall, reviewing and adjusting the threshold for legal aid eligibility is essential in ensuring that access to justice is available to all members of society, regardless of their financial circumstances.
Contracting legal aid
The current practice of the Legal Aid Commission employing lawyers to provide free legal aid assistance impacts small legal practices, mainly when most of the population falls below the threshold for legal aid eligibility. When individuals have access to free legal representation through the Legal Aid Commission, they may be less likely to seek assistance from private legal practices, reducing potential business opportunities for smaller firms.
This situation can be challenging for small legal practices, which may already face competition from larger firms and need more resources to attract clients. When a significant portion of the population qualifies for free legal aid, it can exacerbate the competition and make it difficult for small practices to sustain their business.
One potential approach to address this issue is to explore ways to complement rather than compete with the services provided by the Legal Aid Commission. For example, free legal aid can be limited to criminal cases. Small legal practices can offer specialised expertise, personalised service, and additional value-added services in civil cases and family disputes.
Additionally, there may be opportunities for collaboration between small legal practices and the Legal Aid Commission to serve the community’s needs better. This could involve referring clients to private practices for services outside the scope of legal aid or partnering in cases that require specialised expertise or additional resources.
Sub-contracting free legal aid for civil and family law cases to private practice lawyers could offer several advantages. This approach addresses the concerns about the negative impact on small legal practices while ensuring that individuals can access legal assistance for various legal matters.
Allowing individuals to choose their legal representation from a list of contracted legal aid providers would promote competition and diversity within the legal aid system. It would enable individuals to select lawyers who best meet their needs regarding expertise, availability, and personal rapport, fostering a more client-centred approach to legal aid provision.
Moreover, involving private practitioners in delivering legal aid for civil and family law cases could help alleviate some of the strain on the Legal Aid Commission’s resources. By leveraging the expertise and capacity of lawyers in private practice, the Commission could expand its reach and improve access to legal assistance for individuals who may not qualify for free legal aid under the current system.
This approach could also promote innovation and efficiency within the legal aid system by tapping into the diverse skill sets and resources available in the private sector. Private practitioners may bring fresh perspectives, specialised knowledge, and alternative approaches to legal aid provision, leading to more effective and responsive services for clients.
Overall, subcontracting free legal aid for civil and family law cases to lawyers in private practice offers a promising alternative to the current model. It has the potential to enhance access to justice, promote competition and innovation, and support the sustainability of small legal practices.
Conclusion
Ensuring access to justice goes beyond simply offering free legal assistance. A comprehensive approach is needed to reevaluate the provision of legal aid in Fiji. As the earlier examples demonstrate, justice delayed is justice denied.
Likewise, when free legal aid distorts the justice process, it fails to deliver true justice. Free Legal Aid and Access to Justice.
- The views expressed in this article are not necessarily shared by this newspaper.
