r ole and funct I on of the l egal aI d c omm I ss I on

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 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 Legal Aid Commission and its Strategic Plan makes provision for these in accordance with best practices.

Constitutional recognition of Legal aid and Legal aid act, 1996

Although the Legal Aid 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 Legal Aid Commission (the Commission) is 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.

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 or earnings of FJD$15 000 (and may be increased to FJD$16 000) 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 or NGO without being assisted.

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.

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. The Commission has 16 offices operational (two opened 29 August 2016) and intends to expand this to 18 by the end of 2016, and to 20 by the end of 2017.

• Legal aid advisory cases

During 2015 the Commission gave advice in 16 813 cases, of which were 6 841 in family law, 3 198 in criminal cases and 7 164 civil law cases. During the period 1 January to 31 August 2016 the Commission gave advice in 10 990, of which 4 329 in family law, 1 766 in criminal and 4 895 civil law cases.

• Applications for legal aid

During 1 January – 31 December 2015 the Commission received a total of 12 301 applications (8 115 male, 4 185 female) for legal aid, of which only 30 did not meet the criteria for eligibility. Of the applications, 3 744 were family law cases (1 509 male and 2 235 female), of which 8 failed the means test; 7 041 criminal cases (5 812 male, 1 229 female and 211 juvenile), of which 8 failed the means test; and 1 516 civil cases (795 male and 721 female), of which 6 failed the means test and 5 were refused on merit.

During 1 January – 31 August 2015 the Commission received a total of 8 494 applications (5 382 male, 3 010 female and 102 juvenile) for legal aid, of which only 153 did not meet the criteria for eligibility. Of the applications, 2 473 were family law cases (932 male and 1 539 female and 2 juveniles), of which 6 failed the means test; 4 529 criminal cases (3 644 male, 785 female and 100 juvenile), of which 12 failed the means test; and 1 492 civil cases (806 male and 686 female), of which 19 failed the means test and 116 were refused on merit.

• Legal aid representation

During 1 January – 31 December 2015 the Commission represented 13 501 (8 829 males, 4 672 females) legal aid clients in court. Of these, 4 259 were in family law cases; 7 696 in criminal cases and in 1 546 civil cases. Of the total of 13 501 cases represented by the Commission and 1 232 were briefed out to private lawyers. On average the cost of brief out lawyers is almost four times that of the cost of Legal Aid Commission lawyers.16

During 1 January – 31 August 2016 the Commission represented 9 670 (6 261 males, 3 409 females) legal aid clients in court. Of these, 2 849 were in family law cases; 5 282 in criminal cases and in 1 539 civil cases. Of the total of 9 670 cases represented by the Commission and 641 were briefed out to private lawyers.

• New legal aid case files opened

During 1 January – 31 December 2015 the Commission opened 9 998 new legal aid case files (2 828 family law, 5 863 criminal and 1 307 civil) in the following offices: Suva 2 491; Nausori 880; Nadi 958; Lautoka 1 032; Ba 533; Rakiraki 251; Labasa 933; Sigatoka 383; Navua 287; Savusavu 317; Nasinu 1 385; Tavua 420 and Korovou 128.

During 1 January – 31 August 2015 the Commission opened 9 234 new legal aid case files (2 629 family law, 4 804 criminal and 1 801 civil) in the following offices: Suva 2 246; Nausori 766; Nadi 965; Lautoka 891; Ba 488; Rakiraki 471; Labasa 583; Sigatoka 295; Navua 504; Savusavu 225; Nasinu 1 426; Tavua 374 and Korovou 0.

• Legal awareness workshops

During 1 January – 31 December 2015 the Commission’s legal officers conducted 60 legal awareness sessions in different parts of the country. During 1 January – 31 August 2016 the Commission’s legal officers conducted 73 legal awareness sessions in different parts of the country.

• Staffing

The Commission has establishment for 160 positions, 82 Lawyers and 78 Corporate Staff. As at 31 August 2016 there are 125 staff (43 males and 82 females) and recruitments are being undertaken. (Refer Organisation Chart).

Funding of the Legal aid Commission

The Commission is funded by the Government of Fiji and any shortfall is met from the Legal Aid Trust Fund. 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 financial periods changed 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 million. This funding is equivalent of approximately FJD 6 per capita for Fiji’s 900 000 people 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 abolition of the merits test and the concomitant opening of new offices.

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 2016-2020 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 2016-2020.

s W ot a nalys I s of access I b I l I ty, cred I b I l I ty, affordab I l I ty, susta I nab I l I ty and accountab I l I ty of legal a I d I n fI j I

a ccess I b I l I ty

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.

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.

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.

Threats

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

Strengths

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

Weaknesses

Occasionally people perceive the Commission as not independent of government and will not competently conduct cases against the Government. There is no data available on public perceptions of the Commission. As the merits test has been abolished 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.

Opportunities

Court officials, judicial officers and other stakeholders should be made aware of the importance of not referring to legal aid lawyers as ‘government lawyers’. The merits test should be considered by the Legal Aid Board for reinstatement to be applied on a case-bycase basis. 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.

Threats

If court officials, judicial officers and other stakeholders continue to refer to legal aid lawyers as ‘government lawyers’ the Commission will continue to be perceived as not independent of government. The failure to reinstate the merits test will continue to waste the court’s time and the Commission’s resources on unmeritorious cases and adverse comments that the Commission’s lawyers are not competent.

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.

Weaknesses

The lack of a pro bono culture results in extra costs in the provision of legal aid services. 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.

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 Practice 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. 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.

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.

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.

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. No formal agreement exists between other stakeholders such as NGOs and universities that have the potential to support the work of the Commission.

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 such as NGOs and the universities.

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.

Strengths

Staff are constantly reminded of the Commission’s policies regarding the use of resources and can be disciplined for breaches thereof. Ministry of Finance internal auditors conduct quarterly checks to ensure that finances and resources are used properly. Senior management members are accountable to the Board and the Board is accountable to the Public Accounts Committee and the Minister of Justice. 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.

Weaknesses

No Annual Report was published for 2014 or 2015 so it is difficult for people to get information about the Commission’s work outside of the Commission itself. The Finance Manual has not yet been approved by the Board and has not yet been used for induction and training purposes. The Finance Department is understaffed because there are only four members of staff in the Department at Head Office which prevents such staff from effectively monitoring and auditing the operations of the Commission. The Human Resources Policy and Procedures Manual has also not been approved by the Board and the Administration Department is also understaffed which undermines the effectiveness of administration in the Commission. There is no 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.