Free Legal Aid, Access to 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 1 of Part 2 of his article titled Free Legal Aid, Access to Justice.
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 marginalized people, who rely on free legal aid, it remains imperative to scrutinize 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:
■ 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.
■ Courts and legal institutions: Courts within the legal system interpret and apply laws to resolve disputes and administer justice.
■ 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.
■ 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.
■ 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.
■ 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 marginalized 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.
■ 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.
■ 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.
■ 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.
■ 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.
■ 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.
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