Free Legal Aid, Access to Justice
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 valueadded 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.
Mr Nakarawa holds a Doctor of Philosophy in Law from the University of Waikato in New Zealand. He was a law assistant professor at the Fiji National University and previously served as the Assistant Commissioner of Corrections from 1998 to 2001.
This is Part 2 of 2 of his article. The first part was published last weekend.