Role and function of the Legal Aid Commission

1.1 United Nations Principles and Guidelines for best practices in respect of legal aid and the UN Sustainable Development Goals 5 and 16

The United Nations Principles and Guidelines on Access to Justice in Criminal Justice Systems provide that legal aid is a foundational right for access to justice,1 and should be accessible at all stages of the criminal justice process2 and in all matters involving vulnerable groups such as women, children and rural people,3 and non-discriminatory;4 sustainable in that legal aid is funded by the state;5 affordable in that use is made of all resources by engaging in partnerships with law clinics, paralegals and NGOs;6 credible because legal aid providers have their independence guaranteed7 and are properly trained;8 and accountable in that complaints against legal aid providers are dealt with promptly.9 In addition public legal aware awareness should be conducted to make people aware of their rights. These criteria are also evident in Sustainable Development Goals 5 and 16. The Legal Aid Commission (the Commission) operates in line with the United Nations Principles and Guidelines and the strategic plan is consistent with them.

The principles in UN Principles and Guidelines can also be applied to civil and family cases and the current operations of the Commission and its strategic plan makes provision for these in accordance with best practices.

1.2 Constitutional recognition of Legal Aid Commission and Legal Aid Act, 1996

Although the Commission began from humble beginnings in Suva in July 1998, it has a proud history and was eventually recognized by the Constitution of the Republic of Fiji in 2013 which requires those who cannot afford legal services to be assisted under the Legal Aid scheme. 10

The role and function of the Commission are governed by the Legal Aid Act, 1996.

The Legal Aid Act11 gives the Commission very broad discretion regarding how it wishes to operate, for instance, it may employ both private lawyers and its own salaried lawyers.12 Likewise, it has broad discretion regarding how to decide who should receive legal aid and the terms and conditions that should apply to legal aid applicants.13

The Legal Aid Act establishes the constitution of the Commission which consists of the Solicitor-General who is Chair of the Board, the Chief Registrar, three senior legal practitioners of 10 years post-admission experience, and two persons who are not legal practitioners or public servants. 14

1 UN Principles and Guidelines Principle 1.

2 Principles 3 and 7.

3 Principles 10 and 11.

4 Principle 6.

5 Principle 2.

6 Principle 14.

7 Principle 12.

8 Principle 13.

9 Principle 13.

10 Constitution of the Republic of Fiji 2013 sections 13, 14, 15 and 118.

11 Legal Aid Act No. 10 of 1996.

12 Section 7(1), 11 and 12.

13 Sections 7(2) and (3), 8, 9 and 10.

14 Legal Aid Act No. 10 of 1996.

1.3 Legal Aid Policy Guidelines

The Legal Aid Policy Guidelines have been developed in terms of the Legal Aid Act15 and are very flexible in that legal aid may still be granted outside of their provisions. The Guidelines are aimed at ‘assisting as many impoverished persons as possible’ and apply to both citizens and foreign nationals. The Guidelines state that legal aid may be given in respect of criminal law, family law and limited categories of civil law - mainly for wills and estates.

The means test is set at a net annual income of FJD 15,000 (which is regularly reviewed by the Commission) and is flexible for juveniles, remand and convicted prisoners. A person’s assets will also be considered when determining eligibility.

Apart from the Guidelines, the Commission applies the principle that no person should ever be turned away or referred to another agency without being assisted.

1.4 Role of the Legal Aid Commission in the administration of justice

The Commission plays an essential role in the administration of justice as it underpins the rule of law by ensuring that accused persons and litigants receive a fair trial by providing ‘equality of arms’ for people who cannot afford legal services and marginalized people in Fiji. This is recognized by the Government of Fiji, which provides the Commission with a legal aid budget commensurate the growing demand for legal aid services and allows the Commission to independently control its budget.

1.5 Delivery of legal services by the Legal Aid Commission

The Commission delivers legal aid services primarily by using its in-house legal aid lawyers. Where however there is a conflict of interest the Commission uses brief-out private lawyers. As of 31 December 2017, the Commission had 16 operational branches and would expand this to 22 offices by the end of the financial period 2017/2018 or late 2018. The additional five (5) new offices are to be located in Seaqaqa, Kadavu, Rotuma, Keyasi and Vunidawa.

1.5.1 Legal Aid Applications Received

The Commission received a total of 16,733 applications in 2017 of which 10,576 were male and 6,157 applicants were female. The total number of 386 applicants did not meet the eligibility criteria, thus applications were rejected, of which five were family cases (four male and one female), two were criminal (two male and 0 female), and 379 civil (291 male and 88 female) who failed to meet the eligibility criteria.

A total of 1,417 files were briefed out to private lawyers in 2017.

The Commission received a total of 12,573 applications in 2016, of which 8,614 were male and 3,959 applicants were female. The total number of 247 applicants did not meet the eligibility criteria, thus applications were rejected, of which 13 were family cases (13 male and 0 female), 14 were criminal (12 male and 2 female), and 226 civil (177 male and 49 female) who failed to meet thermo 1 eligibility criteria.

A total of 937 files were briefed out to private lawyers in 2016.

15 Section 8(1).

Furthermore, from 1 January 2015 till 31 December 2015, the Commission received a total of 11,473 applications, of which 7,728 were males and 3,745 were females. A total number of 33 applications were rejected, of which 10 were family cases (seven male and three female), seven criminal (seven male and 0 female) and 16 civil (10 male and six female) who failed to meet the eligibility criteria.

1.5.2 Legal Advisory Services

The Commission provides free advisory services to all members of the public. There is no requirement for a person to meet the eligibility criteria for this service.

In 2017, the Commission provided a total of 22,401 advisory services, of which 8,091 were family, 3,563 were criminal, and 10,747 civil.

In 2016, the Commission provided a total of 16,667 advisory services, of which 6,454 were family, 2,649 criminal, and 7,564 civil.

1.5.3 First Hour Procedure

The First Hour Procedure that commenced on 1 November 2016 has been a successful one. The statistics show that the Commission attended to 1,640 suspects since 1 November 2016 till 31 December 2017, 1,440 were male adults, 167 were female adults, 29 male juveniles and four female juveniles.

1.5.4 Duty Solicitor Services

To ensure that members of the public are able to access legal services instantaneously in matters which are urgent and or to assist the Court, the Commission has implemented the Duty Solicitor Scheme which offers this instant service.

A person assisted under this scheme is offered legal representation as a “one-off” assistance and for any further representation, the person must formally apply.

Types of services available through the Duty Solicitor Scheme include bail applications, mitigations, urgent child recovery, stop departure orders, domestic violence restraining orders, etc.

In 2017, the Commission provided 2,421 duty solicitor services whilst in 2016, this figure was 2,315.

1.5.5 Legal aid awareness workshop

From 1 January to 31 December 2016, the Commission conducted 57 legal awareness sessions in parts of the country, and 220 awareness programs from 1 January to 31 December 2017.

1.5.6 Staffing

The Commission has total staffing establishment of 176 as at 2016/2017 Financial period, out of which 87 are Lawyers and 89 are the Corporate staff. The Commission’s new organization structure shows the total of 209 established positions for the current financial period. The current financial period is from 01 August 2017 to 31 July 2018. Commission is in process of recruiting the vacant positions during this financial period. All the vacant positions will be filled before the end of 31 July 2018.

1.6 Funding of the Legal Aid Commission

The Commission is funded by the Government of Fiji through an annual grant. In 2015, the Government provided FJD 4,400,000 and FJD 416,548 was met by the Trust Fund.

In 2016, the Government of Fiji changed the financial period for the financial year to be from 1 August to 31 July. For the period 1 January 2016 to 31 July 2016, the budget allocated for the Commission was FJD 2.9 million. The budget allocated for the Commission for the period 1 August 2016 to 31 July 2017 is FJD 5,022,140. This funding is equivalent to approximately FJD 6 per capita for Fiji’s 900,000 population and is probably one of the most generous in the developing world. The increased budget takes into account the need to meet the rising requests for legal aid across Fiji after the removal of the merits test in criminal and family matters, and the concomitant opening of new offices. In 2017/2018, financial period the commission received funding of 8.4 million from Government, which is around FJD 9.5 per capita.

1.7 Strategic intent of five-year plan

The purpose of the five-year strategic plan is to provide the Commission with a planning framework for the next five years so that it can more effectively fulfill its mandate of providing legal aid services to those who cannot afford legal services in Fiji.

The Legal Aid Commission’s Strategic Plan for 2018-2022 will inform the Legal Aid Commission’s Annual Business Plans, which will be in line with the Annual Corporate Plan of the Ministry of Justice. The planning process includes the needs of stakeholders in the administration of justice as well as detained and accused persons, victims of crimes, litigants and the people of Fiji, particularly women and children.

The strategic plan is in line with the Fiji Roadmap for Democracy and Sustainable Socio-economic Development 2010-2014 and the Fiji Government’s Women’s Plan of Action 2010-2019, and will be informed by the Commission Functional Review and will result in Annual Corporate Plans for the period 2018-2022.