2. SWOT Analysis of accessibility, credibility, affordability, sustainability and accountability of legal aid in Fiji

2.1 Accessibility

2.1.1 Strengths

With its existing offices and increased Government funding, the Commission has been able to meet the growing demand for legal aid services in other areas of law and to provide greater access to justice by establishing additional offices where needed.

2.1.2 Weaknesses

Infrastructure and other challenges make it difficult to provide legal aid services, including public legal awareness, in the remote areas. Another challenge is obtaining and providing ‘first hour contact’ with arrested and detained persons.

2.1.3 Opportunities

The Commission should work in partnership with other stakeholders to provide and expand access to justice, including provision for ‘first hour contact’ with arrested and detained persons.

2.1.4 Threats

Demand for legal aid services may overwhelm the institutional and technical capacity and resources of the Commission to provide the necessary services, which may be aggravated if other relevant stakeholders do not play their role in providing access to justice.

2.2 Credibility

2.2.1 Strengths

Staff are appointed and promoted on merit. The Commission is recognized by the Constitution and operates independently.

2.2.2 Weaknesses

Occasionally people perceive the Commission as not independent of the Government. There is no data available on public perceptions of the Commission. As the merits test has been abolished in family and criminal matters but not civil, some clients insist on the Commission representing them in unmeritorious cases and complain about legal aid lawyers when the decision is not in their favor.

2.2.3 Opportunities

Stakeholders and public perception needs to change on legal aid lawyers being referred to as “Government lawyers” as the Commission is independent and must not be seen as part of Government. The Commission should undertake a survey of public perceptions and undertake a strategy to improve those perceptions through public legal awareness programmes and hosting a national legal aid conference.

2.2.4 Threats

If the perception that legal aid lawyers are ‘Government lawyers’, then the Commission will continue to be perceived as not independent of Government.

2.3 Affordability

2.3.1 Strengths

The Commission does not duplicate the work of other service providers and has a strong in-house capability in all relevant areas of practice. New offices are established on the basis of need not wants. Non-Government Board members are not paid salaries, but rather sitting allowances. Measures are in place to control costs effectively and ensure funds allocated by Government are spent in accordance with the approved budget. Brief-out lawyers are paid reasonable rates determined by the Commission.

2.3.2 Weaknesses

The lack of a pro bono culture results in extra costs in the provision of legal aid services through its brief out scheme. Legal aid clients in civil cases who are awarded costs are not required to cede such costs to the Commission. The Commission does not levy a percentage for collection costs when damages are awarded to legal aid clients. The current IT infrastructure, case management and administrative systems are not cost effective, too slow and need to be updated. Lack of library resources inhibits the research capacity of legal aid lawyers and administrative staff.

2.3.3 Opportunities

Legal practitioners should be required to assist the Legal Aid Commission by accepting brief-out cases and undertaking pro bono work referred by the Commission. The Legal Practitioners Unit should be able to refuse to issue an annual practicing certificate for those lawyers who have not produced a certificate from the Commission stating that they have complied with the above requirements provided the Legal Practitioners Act is amended to include compulsory pro-bono work by a legal practitioner. The Independent Legal Services Commission (ILSC) should consider imposing a sanction that requires a practitioner to undertake a certain number of cases pro bono for the Legal Aid Commission in cases where such practitioner has been found guilty of misconduct by the ILSC. In accordance with best practice, awards of costs in favor of successful legal aid clients in civil matters should be ceded to the Commission, and the Commission should be able to recover a commission on damages awarded to civil legal aid clients. An updated IT system and Library should be established for the Commission.

2.3.4 Threats

Government may reduce funding if it has to introduce budget cuts and this may reduce the ability of the Commission to carry out its obligations under the Constitution. Legal practitioners may not be required to undertake a certain amount of work for the Commission annually or a pro bono requirement may not be introduced which may undermine the ability of the Commission to meet the rising demand for legal aid services. Clients may make false statements about their means and lawyers may take on too many cases without merit.

2.4 Sustainability

2.4.1 Strengths

The Government adequately funds the Commission in terms of its Constitutional obligations. The Commission may draw on the Legal Aid Trust Fund for any extra funding needed. In addition, development partners such as UNDP and the EU are providing support to the Commission.

2.4.2 Weaknesses

The Government grant is paid quarterly and if it is not paid on time the Commission may run out of funds and the Legal Aid Trust Fund has to be used for bridging finance. The Commission has not yet explored the potential support it may receive from other development partners.

2.4.3 Opportunities

Additional development partners may be prepared to supplement Government funding for some of the Commission’s activities. The Commission should enter into formal agreements with other stakeholders.

2.4.4 Threats

There may not be enough suitably qualified staff attracted to legal aid work and committed to providing access to justice. The current heavy workload of legal aid staff may cause them to reduce their productivity and may eventually lead to them resigning from the Commission. If staff members are not adequately remunerated they may leave the Commission.

2.5 Accountability

2.5.1 Strengths

Staff are constantly reminded of the Commission’s policies regarding the use of resources and can be disciplined for breaches thereof. Ministry of Economy internal auditors conduct quarterly checks to ensure that finances and resources are used properly and external auditors have been appointed to carry out independent audits. The Commission is accountable to the Ministry of Economy on the use of Government Grant funds allocated every year. Legal aid lawyers are accountable to both the Commission and the disciplinary rules of the legal profession. Officers in charge of managing offices outside Suva are accountable to Head Office. Brief-out cases are verified by Commission staff before payments are made. Complaints against staff are referred to the Board or Chair of the Board. The

Board or Management of the Commission may visit and conduct audits unannounced at legal aid offices. An external independent auditor audits the Commission’s Legal Aid Trust Account. The Auditor General has the right to inspect and audit all Legal Aid case files to ensure that there is compliance with financial regulations.

2.5.2 Weaknesses

The annual reports which have not been published due to backlog and understaffing in previous years are being worked on. The Finance Manual has been approved in principle however yet to be endorsed by the Board as some further changes are being made. Provisions of the manual have been approved for implementation and for daily use. The Finance Unit is understaffed because there are only five members of staff in the Unit at Head Office. The Human Resources Policy and Procedures Manual has also been approved in principle however yet to be endorsed by the Board as further changes are being to its content. Provisions of the manual, however, have been approved for implementation. The Administration Unit is also understaffed with only four staff in this Unit.

2.5.3 Opportunities

The Finance and Human Resources Manuals should be updated and approved by the Board, and regular staff training development programmes should be conducted. Annual reports should be widely published so that the public and media are aware of the Commission’s activities. A national staff forum should be held to encourage feedback from staff and to give them awards for good works. The Commission should take the initiative to promote the establishment of a Justice Stakeholders’ Forum where all the stakeholders in the administration of criminal justice such as the police, prosecutors, judicial officers, prison officials and the Commission meet to discuss matters of mutual interest to promote access to justice.

2.5.4 Threats

Some staff members may fail to observe the checks and balances regarding accountability in the Commission if there are staff shortages in the Finance and Administration Units. If the Finance and Human Resources Manuals are not endorsed by the Board and staff are not provided with induction and regular training programmes it will undermine accountability by staff members. Delays in dealing with complaints and disciplinary matters by the Board or Senior Management may lead to a reduction in accountability.

3. Vision

To provide access to justice through professional, efficient and quality legal aid services.

4. Mission

To provide greater access to justice through quality legal aid services:

4.1 To those who are unable to afford such assistance, including women, children and those with special needs.

4.2 By raising awareness on legal rights and the Constitutional right of access to legal aid services.

4.3 By creating a work environment whereby the Legal Aid Commission becomes an employer of choice and provides professional, efficient and quality services.

4.4 By making representations to Government on legal aid matters.

4.5 By ensuring that the Legal Aid Commission operates in accordance with best international practice.

5. Values

The Legal Aid Commission is committed to:

5.1 Client focus and quality service delivery

5.2 Good governance and professionalism

5.3 Staff development

5.4 Effective finance and resources management

6. Strategies

6.1 Client focus and service delivery

6.1.1 Goals and objectives

Making legal aid accessible, credible, affordable, sustainable and accountable for clients with the following goals and objectives by:

6.1.1.1 Ensuring that the Legal Aid Commission provides an effective, professional and responsive service to legal aid clients, including ‘first hour contact’ for arrested and detained persons.

6.1.1.2 Creating an efficient management system so that legal aid cases and their administration may be effectively managed.

6.1.1.3 Ensuring that legal aid staff deal with client’s cases as timeously as possible.

6.1.1.4 Installing a toll-free helpline that is accessible to the public.

6.1.1.5 Amending the Policy Guidelines to take into account civil cases and new areas of the law.

6.1.1.6 Establishing sufficient legal aid offices and outreach programmes.

6.1.1.7 Ensuring that the public perceive the Commission as Independent, professional, efficient and providing quality legal aid services.

6.1.1.8 Making the Legal Aid Commission accountable and transparent to the public by publishing an annual report.

6.1.1.9 Working in partnership with other stakeholders.

6.1.10 Strengthening the brief-out system by introducing an ethical rule compelling legal practitioners to accept brief-outs from the Commission and to engage in pro bono work for the Commission.

6.1.2 Key activities

6.1.2.1 A ‘first hour contact’ system is established for arrested and detained persons in accordance with best international practice with a pilot programme in place by the end of 2016.

6.1.2.2 An efficient case management system is identified and installed to enable quick access to client’s files by the end of 2018.

6.1.2.3 Adequate and competent staff are recruited to meet the increasing demand and to ensure timely delivery of legal aid services - ongoing.

6.1.2.4 An appropriate legal aid advisory/helpline programme is identified and operational by the mid-2018.

6.1.2.5 Staff are trained to deliver legal aid in all relevant areas of legal practice - ongoing.

6.1.2.6 The Policy Guidelines are amended regularly to meet the changing demands of society and clients – ongoing.

6.1.2.7 One new office and outreach programmes operational in Seaqaqa by the end of July 2018, and four offices and outreach programmes operational in Kadavu and Rotuma and Keyasi and Vunidawa by the end of 2018 or early 2019.

6.1.2.8 An Access to Justice Assessment is conducted which includes public perceptions and those of other stakeholders regarding legal aid by the end of 2018.

6.1.2.9 Annual reports and pamphlets are published widely so that the public and stakeholders are aware of the independence of the Commission and its activities and services – ongoing.

6.1.2.10 Agreements are entered into with stakeholders and annual legal aid stakeholder meetings are held, with the first meeting emphasizing the importance and independence of the Commission – ongoing.

6.1.2.11 By the end of 2019, the Commission approaches the Legal Practitioners Unit or relevant law makers to introduce a provision that strengthens the brief-out system by establishing a condition that legal practitioners will not have their practice certificates renewed unless they prove that they have accepted a certain number of brief-outs from the Commission and to engage in a certain amount of pro bono work for the Commission and validated by the Commission.

6.1.3 Measure of achievement

The achievement of the goal and objective of a client focus and qualify service delivery approach will be measured by a range of indicators including quality of case management system, availability of free legal assistance for impoverished and vulnerable groups, satisfaction of callers to the toll-free legal aid helpline and number of people indicating increased understanding and awareness of their rights as a result of awareness outreach programmes.

6.2

6.2.1

Good governance and professionalism

Goals and objectives

The Legal Aid Commission shall practice good governance and professionalism in the conduct of its duties in a transparent manner by:

6.2.1.1 Ensuring that all members of staff are accountable for their actions.

6.2.1.2 Reviewing the Code of Conduct in the Human Resources Manual to ensure ethical practice by all staff members.

6.2.1.3 Ensuring that improved internal auditing and monitoring systems are in line with best international practice.

6.2.1.4 Ensuring that a proper Succession Plan is in place to replace staff members who leave the Commission.

6.2.1.5 Reviewing the Legal Aid Policy Guidelines in line with the 2016-2020 Strategic Plan and Functional Review and submitting them to the Board.

6.2.1.6 Reviewing the Legal Aid Policy Guidelines in accordance with best practice to allow awards of costs in favor of successful legal aid clients in civil matters to be ceded to the Commission, and to enable the Commission to recover a certain percentage commission on the damages awarded to civil legal aid clients.

6.2.1.7 Reinstating the merits test to be applied on a case-by-case basis.

6.2.1.8 Compiling a comprehensive Legal Aid Guide that includes all the relevant legal aid documents such as the Legal Aid Act, the Policy Guidelines, Standard Operating Procedures, Code of Conduct, Briefing-out procedures etc.

6.2.1.9 Ensuring that the Commission operates in line with international best practice and can interact reciprocally with foreign legal aid agencies.

6.2.1.10 Holding an annual Legal Aid Conference to provide legal practitioners with continuing legal education points.

6.2.1.11 Working in partnership with development partners to obtain support for access to justice.

6.2.1.12 Promoting the establishment of a Justice Sector Stakeholders’ Forum where all the stakeholders in the administration of criminal justice such as the police, prosecutors, judicial officers, prison officials and the Commission meet to discuss matters of mutual interest to promote access to justice.

6.2.2 Key activities

6.2.2.1 The Board approves the revised Draft Finance and Human Resources Policy and Procedures Manual which provides guidance for accountability of staff regarding their professional responsibilities by the end of 2018.

6.2.2.2 The reviewed Code of Conduct is included in the Draft Human Resources Manual sent to the Board for approval and publicized by the end of 2018.

6.2.2.3 Internal auditing and monitoring systems for the Commission in line with best international practice are identified and installed by the end of June 2018.

6.2.2.4 The Succession Plan in the Draft Human Resources Manual is reviewed and is approved by the Board by the end of 2019.

6.2.2.5 The Legal Aid Policy Guidelines amended in line with the 2018-2022 Strategic Plan and Functional Review are submitted to the Board for approval by the end of 2018.

6.2.2.6 The Legal Aid Policy Guidelines are amended in accordance with best practice to allow awards of costs in favor of successful legal aid clients in civil matters to be ceded to the Commission, and enable the Commission to recover a certain percentage commission on the damages awarded to civil legal aid clients, by the end of 2020.

6.2.2.7 Requesting the Board to consider reinstating the merits test on a case-by-case basis for appeal matters in the Court of Appeal and Supreme Court by the end of 2019.

6.2.2.8 A comprehensive Legal Aid Guide is compiled by the end of 2018.

6.2.2.9 The Commission begins to engage in study visits and hosts an International Legal Aid Conference for the South Pacific by the end of 2018.

6.2.2.10 Partnerships are entered into with development partners to support and promote access to justice - ongoing.

6.2.2.11 The Commission or another stakeholder convenes a Justice Stakeholders’ Forum, where all stakeholders in the administration of criminal justice, such as the police, prosecutors, judicial officers, prison officials and the Commission, meet to discuss matters of mutual interest to promote access to justice, by mid-2018.

6.2.3 Measure of achievement

The measure of achievement for good governance and professionalism will be by an independent assessment to determine the total number and what percentage of the administrative structures, procedures and governance are in line with best international practice to be conducted at the commencement, mid-term and end of the strategic planning period.

6.3 Staff development

6.3.1

Goals and objectives

The Legal Aid Commission shall develop its staff in an environment that makes the Commission an employer of choice by:

6.3.1.1 Increasing human resources and professional development in new areas of law, including encouraging further studies, capacity building and overseas training.

6.3.1.2 Securing a sufficient budget to ensure that the high demand for legal services can be met without subjecting the staff to undue workloads.

6.3.1.3 Ensuring that the vacant staff positions are filled to meet the increasing demand for legal aid services.

6.3.1.4 Commissioning an independent survey and analysis for consideration by the Board to ensure that staff receive competitive salaries.

6.3.1.5 Including in the Human Resources Manual a system whereby the Board can create career paths for promotion purposes without advertising externally.

6.3.1.6 Ensuring that staff have been trained to present public legal awareness workshops effectively.

6.3.2 Key activities

6.3.2.1 Both support and professional staff are given continued training and encouraged to further their studies, and some are sent for overseas training and study visits - ongoing.

6.3.2.2 A sufficient budget is secured to ensure that the high demand for legal services can be met without subjecting the staff to undue workloads – ongoing.

6.3.2.3 Vacant staff positions are filled to meet the increasing demand for legal aid services - ongoing.

6.3.2.4 By June 2018, an independent survey and analysis of comparative salaries is commissioned and presented the Board for consideration to ensure that staff receive competitive salaries.

6.3.2.5 By the end of 2018, the Draft Human Resources Manual is amended and submitted to introduce a system whereby the Board can create career paths for promotion purposes without advertising externally.

6.3.2.6 Staff are trained in how to conduct public legal awareness effectively - ongoing.

6.3.3 Measure of achievement

The measure of achievement for staff development will be by conducting independent surveys on the skills and knowledge of staff, surveys of staff members, evaluations by staff of training and development programmes, and determining the percentage of staff who regard the Commission as an employer of choice.

6.4 Effective financial and resource management

6.4.1

Goals and objectives

The Legal Aid Commission is committed to ensuring that it introduces a financial control system that it is in accordance with best international practice by:

6.4.1.1 Ensuring that an effective financial management system is in place.

6.4.1.2 Ensuring that the Board of the Commission approves the amended Draft Finance Manual.

6.4.1.3 Building a strong and up-to-date reporting, monitoring, evaluation and control system in financial and resource management system.

6.4.1.4 Establishing a well-resourced library that is available online and in hard copy which caters for the needs of all staff.

6.4.1.5 Constructing or purchasing a building in Suva so that the Commission can offset current rental costs and generate income by letting some of its office space out.

6.4.2 Key activities

6.4.2.1 An effective financial management system is identified and operational by the end of 2018.

6.4.2.2 An independent accounting firm is employed to verify that the Commission’s financial management system is in line with best international practice by the end of 2018.

6.4.2.3 The amended Draft Finance Manual is approved by the Board of the Legal Aid Commission by end of 2018.

6.4.2.4 A strong and up to date reporting, monitoring, evaluation and control system in financial and resource management system is identified and operational by the end of 2018.

6.4.2.5 A library that is available online and in hard copy which caters for the needs of all staff is established by the end of 2018.

6.4.2.6 By 2020, a building is constructed or purchased by the Commission in Suva to offset current rental costs and generate income by letting some of its office space out.

6.4.3 Measure of achievement

The measure of achievement of effective financial and resource management will be the percentage of compliance annually with the financial regulations as audited by the Auditor General and Ministry of Finance for Government grant funds and the external auditor of the Legal Aid Trust Fund.