Delivery of justice denied
The rule of law is an umbrella philosophy grounded in legality. It ensures the restriction of the arbitrary exercise of power by holding the law accountable to well-defined and established laws, such as lawfulness, fairness and the delivery of justice.
It means that every person is subject to the law, including the legislatures. It is an ever-evolving philosophy; its boundaries extending to meet changing eras so long as the fundamental principles are not eroded or infringed. In other words, if any facet is abandoned, corrupted or neglected, then the delivery of justice fails. It is a holistic concept
In this country, the Bermuda Constitution Order 1968 is the main — but not only — guardian of the delivery of justice. The delivery of justice is manifested in various ways. This commentary focuses on the delivery of justice through the legal aid system in Bermuda under the Legal Aid Act 1980 and how it fits in with the higher law parent, the Constitution.
The Legal Aid Act 1980 governs, inter alia, the grant of legal aid to qualified applicants and the administration of the legal aid scheme. Generally speaking and in lay terms, legal aid was a manifestation of a person’s right under the Constitution to have a fair trial by being represented by an attorney of their choice paid for by the Government.
This was not a “free for all” scheme; rather, there were certain qualifications that had to be satisfied. However, those qualifying under the Legal Aid Act had their attorneys’ fees paid by the Government. This was the case in both qualifying civil and criminal cases.
The records will show that in the immediate past years, some 80 per cent of criminal litigants and a substantial percentage of civil litigants looked to and was assisted by the legal aid scheme. It is a legitimate expectation of both litigant and attorney that a litigant’s right to a fair trial under the Constitution and the attorney’s right — indeed, their duty — to represent the litigant is constitutionally protected.
Therefore, this right cannot be restricted or removed by a simple amendment to the Legal Aid Act — as the amendment of section 12 of that Act purports to achieve. Sadly, in 2018, the Legal Act 1980 was amended to deny litigants their attorney of choice, save in three exceptional circumstances — and to force litigants to accept in-house attorneys unknown to them.
It cannot be denied that the operation of the legal aid scheme, like many other government schemes, is an expensive undertaking for the Government. Nevertheless, under the rule of law, it is the responsibility and duty of government to continue to manage and efficiently administer its constitutionally mandated responsibilities, rather than abandoning them and crying that it is too expensive. The section 12 amendment is a callous, unlawful way to avoid financing a constitutional right.
In Bermuda, it cannot be denied that there is stark distinction between black lawyers and white lawyers in terms of the legal work available to them. This distinction is also somewhat true between the junior lawyers — those under ten years’ call — and the others.
Legal aid work provides a living for many of the mentioned minorities. If legal aid — pre-section 12 amendment — is discontinued, how will these minorities survive? Is it not the Government’s duty to find ways to protect and support a defence bar, and young lawyers generally, in the interest of assisting in the good and sound administration of justice?
A reasonable alternative may be to lower the legal aid rate, rather than deny litigants the right to their attorney of choice, thereby putting lawyers who rely on this business at a real risk of going out of business.
Another practical concern is how the legal aid office will manage the caseload if all legal aid work is represented by in-house counsel. Above all, this kind of far-reaching amendment and apparent restructuring of the legal aid office ought to have gone out to the bar for public consultation, and ultimately grounded in appropriate legislation.
Some lawyers are feeling their way through the dark, while others are coming out on top. This is a breeding ground for corruption.
The rumour is that the Government, through the Attorney-General’s Chambers, is planning to set up a United States-style public defenders office. This can be done only through appropriate legislation and will be rigorously challenged. At present, the legal aid office is operating unlawfully and arbitrarily, and is failing in its duty to deliver justice.
The section 12 amendment is unlawful on its face. It is being arbitrarily administered on a friends-and-family basis. The administration of the legal aid system is being corrupted and neglected. It is very sad and extremely worrying for lawyers and the public at large that the Government has abandoned the administration of justice in many of its facets, including the delivery of justice.
• Archibald Warner is a former Supreme Court assistant justice and senior magistrate. He is now in private practice as a consultant attorney with Resolution Chambers
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