The Altered Role of Legal Aid Commission in Fiji:

Links:

1. https://issuu.com/joeliuluinayau/docs/lac_strategic_plan./s/25652085

2. https://www.fijitimes.com.fj/a-g-101-practitioners-with-no-work/

3. https://www.laws.gov.fj/Acts/DisplayAct/846#

4. http://www.paclii.org/cgi-bin/disp.pl/fj/legis/num_act/laa1998144/laa1998144.html?stem=0&synonyms=0&query=legal%20aid%20act%201996

Introduction:

To begin with, Legal Aid Commission was established in Suva in July 1998. The major reason for the establishment of this organisation requires only those individuals who cannot afford legal services to be assisted under the Legal Aid Scheme. According to Joeli Uluinayau, the Fiji Legal Aid Commission's strategic plan for 2018 - 2022 has set its means test at an annual income of $15,000 per annum[1]. Upon that, a person's assets were also considered when determining eligibility. As of now, in the year 2024 under section 7 of the Legal Aid Act 1996 have no such sum mentioned for the clarification of eligibilities. Moving on, section 8 (a) (b) of the Legal Aid Act 1996 states the guidelines shall be determined by the commission upon determining the legibility such as (a) the person's assets and income, (b) the assets of the person which are in cash or readily convertible into cash and so on. The act itself states the word 'Shall' which means that it is mandatory and not discretionary. Therefore, the guidelines should be strictly followed which the organisation has breached or failed to do. As the organisation has failed to follow the act and has provided legal service to all the individuals it has raised the following major issues as well.

1. Firstly, the Legal Aid Commission not following the Legal Aid Act 1996 itself has caused all the private firms to suffer loss in their business by not having enough clients as all the clients regardless of their income go to the Legal Aid Commission in which they provide services.

2. Secondly, it has drastically affected the young lawyers who are unemployed. These young lawyers are unemployed due to the Legal Aid Commission as it affects the private firm's businesses hugely which minimizes the job opportunities at private firms. According to our former Attorney General and Minister for Economy Aiyaz Sayed-Khaiyum, he had stated that there are 101 practitioners unemployed in the year 2021[2]. Till date, there must be more practitioners who may be unemployed as every year 150 lawyers graduate in Fiji.

3. Finally, how a body can have a conflict unit within the same organisation. For example, the Legal Aid Commission having its conflict unit may have access to the opponent counsel's client's information as it's within the same body and has the same director. Conflict of interest should not be entertained which the LAC is currently doing.

Argument:

In Fiji the Legal Aid Commission has an essential mandate in providing legal assistance to those who can't afford/seek private law firms. However, the current actions of the Legal Aid Commission have breached the guidelines that are set in the Legal Aid Act 1996; which significantly challenges both the legal professions and the justice system in Fiji. In order to address these current issues, the Legal Aid Commission should return to strict adherence to the Legal Aid Act 1996, while determining the eligibility criteria for the services provided by the Legal Aid Commission. This is important as it will keep the legal system fair and to protect everyone's rights. Hence the issues together with the solutions to overcome those issues are as follows:

Firstly, Strict Adherence to Eligibility Criteria; the Legal Aid Act 1996 in sections 7 to 13 clearly mandates the eligibility guidelines for legal aid services based on the means test which considers both the assets and income. This is a mandatory rule as the law uses the word 'shall' in the act. The strategic plan of an annual income threshold of $15,000 and any deviation from this threshold without a legal basis compromises the system's integrity. In extending its services beyond those who genuinely meet the eligibility criteria, the Legal Aid Commission has diluted the mandatory purposes of the commission.

In order to overcome the first issue, the Legal Aid Commissionshould strictly adhere to sections 7 to 13 specified in the Legal Aid Act 1996. This will guarantee that resources are allocated to those who truly require legal assistance, upholding the original purpose of the Legal Aid Commission and preventing the misuse of public funds.

Secondly, Protecting Private Legal Practice, the Legal Aid Commission's practice of providing legal aid services to individuals regardless of their financial status has negatively affected private law firms. These firms are crucial to a thriving legal system. When a government-funded organisation takes away its clients, their survival is at risk. This reduces the variety and availability of legal services in Fiji, potentially leading to poorer quality services and less legal innovation.

The second issue can be solved, by restricting Legal Aid Commission services to those who qualify under strict eligibility criteria, private firms can serve clients who can pay for legal services. This will ensure a fair distribution of legal work between public and private organizations. This balance is important for a strong legal profession in Fiji.

Thirdly, Supporting Employment for Young Lawyers, the total amount of law graduates in Fiji, combined with the decreased number of clients for private law firms, has resulted in high unemployment among young lawyers. When the Legal Aid Commission provides excessive legal aid regardless of their eligibility act, it unintentionally creates this issue by taking clients away from private law firms, where young lawyers are often employed.

In order to solve the third issue, the Legal Aid Commission should focus on providing legal services to those who qualify financially, which enables private law firms to prosper and generate more job opportunities for young lawyers. Furthermore, the government should explore offering incentives to private firms to hire young lawyers, which mitigates the unemployment problem of young/new lawyers.

Finally, Addressing the Conflict of Interest within the Legal Aid Commission, having a conflict unit within the same organization that handles both sides of legal disputes are concerning. It raises questions of confidentiality, fairness, and the overall integrity of the legal process. There is a greater risk of sensitive information that will be misused when both sides of a dispute are managed under the same roof or within the same organisation.

To solve the final issue, the conflict unit should be structurally independent from the Legal Aid Commission, perhaps by being outsourced to a separate organization for example having a private law firm as a conflict unit. This would help prevent conflicts of interest and maintain public confidence in the legal aid system.

Questions:

1. Should the Legal Aid Commission in Fiji strictly adhere to the eligibility criteria set out in the Legal Aid Act 1996 or it should have some flexibility to adjust the criteria? Why or why not?

2. If the Legal Aid Commission in Fiji continues to provide services to individuals regardless of their financial status, what are the potential long-term effects on the legal system?

3. Should the government implement specific policies or incentives to encourage private law firms to hire young lawyers, or is this primarily the responsibility of the private sector?

4. Should the Legal Aid Commission's conflict units operate independently, or can they be effectively managed within the same organization? Justify your answer.