Justice White Paper 2

Instead of quoting or paraphrasing an argument from the recently published White Paper on the justice system, there is no justice to an argument unless the whole text is reproduced. Please do not consider this as plagiarism, but what follows on the legal aid system is taken verbatim:

Legal aid - a revision

"In recent years, it has been repeatedly felt that the Legal Aid system required a revision. The problems in this sector are varied in nature. First and foremost, there is no legal and administrative mechanism that guarantees continuity. Secondly, there is no real assessment of the work performed. Thirdly, appointed lawyers, on their part, complain that they are not adequately remunerated, even if they are also on the curators' list.

"The fourth problem lies with the criteria used to establish who qualifies for legal aid. The criterion currently adopted is the income of the person requesting legal aid, but the Advocate for Legal Aid considers that there are cases which deserve attention even though they do not qualify on strictly and simply financial criteria.

"Fortunately, a majority of lawyers feel in conscience that they should not charge any fee to clients, who in their opinion do not have the financial means to pay. However one cannot set up a system on the premise that a lot of work is performed free of charge. Firstly, it is not always the norm for people in financial difficulties to call on lawyers who are ready to offer their services free of charge. Secondly, when the State exploits this voluntary and gratuitous work, it would be acting unfairly towards those performing it."

Who of the readers can, or should in all conscience, challenge the truth of such a statement? But readers are invited to remember the statement that now legal aid is granted to people on the lower incomes and there are deserving cases which should be granted legal aid, even though not strictly whithin that income bracket. The other important statement is that it is not right for the State to exploit voluntary and gratuitous work.

Who on earth, so that we go global, can complain?

What is not stated here is that there are many lawyers who would willingly defend their poor clients free of charge in civil matters, but cannot even imagine doing that for the simple reason that the Government is exacting enormously high registry fees. The Registrar may have the same conscience as the lawyer, compassionate, caring, and considerate. He has only one option - to charge the high registry fees to start the case.

The solutions

"The following proposals are aimed at creating some order in this sector by amending the law accordingly:

"b) Apart from the usual rota of Advocates for Legal Aid, a list should be created whereby each and every lawyer who attends court sittings would assume, on a roster basis, suits which are highlighted for this purpose by the Advocate for Legal Aid in the civil and constitutional field and also, in exceptional cases, in the criminal law field, and this will be part of a lawyer's duty arising from the mere fact that he belongs to the profession (munus publicum). This service would be given free of charge, pro bono. In this manner, a person who would not be in a position to pay and who would be involved in a case that deserves to be taken over by an expert in the field would be assigned to a lawyer who would not be on the list."

(Paragraph (a) has been left out as it is of an administrative nature.)

In very simple terms this means that once a lawyer gets his warrant, and works in the law courts, not being a consultant somewhere, he will be bound to work free of charge for a client assigned to him.

Somewhere I must have read in this White Paper that "when the State exploits this voluntary and gratuitous work, it would be acting unfairly towards those performing it." The main change is that the work will remain gratuitous but it will not be voluntary. It will be forced labour. It is no sin for the State to exploit forced and gratuitous labour, and it would not be acting in an unfair manner towards those performing it.

By the way I like the expression munus pubblicum. That means a public office. It goes back to Roman times, when the defence of client was considered a privilege and an honour, and so an honorarium was paid.

My solution would be different. I agree that there are lawyers who are competent, conscientious, and feel that part of their work is voluntary social work. But you cannot force them to go also out of pocket to finance a case because registry fees have to be invariably paid. The stark fact is that there is practically no access to a court, or even to defend a case, for John Citizen with limited resources, even if justice so demands. Do you know that it is cheaper to take a case to the highest court recognised by the laws of Malta, than to start the case before the First Hall on the same issue? The European Court of Human Rights does not charge registry fees.

Otherwise, high principles crash hard to the ground in a contradictory manner.