Marc Sant, Head advocate for Legal Aid and CEO of Legal Aid Malta Agency
Legal Aid Malta Agency provides legal assistance to persons otherwise not able to afford legal representation and access to the legal system. In fact, legal aid is central in providing access to justice by ensuring the right to legal counsel, the right to a fair trial and hence ensuring equality before the law.
The Agency continuously strives to further upgrade the service provided to clients and has worked on strengthening its internal processes while concurrently trying to be more easily accessible and efficient to persons requiring its services.
The budget allocated to the Agency in 2019 is that of €450,000 – a significant increase from the €100,000 allocated to it in 2016. The increase in this allocation reflects an increased commitment towards a better delivery of service to our clients together with an increase in the number of legal aid lawyers and a beefed up staff complement at the agency.
Here it is fitting to highlight that from the 13 legal aid lawyers (nine men and four women) in March 2017 and four in Gozo, by November 2018 these had increased to 22 legal aid lawyers (12 men and 10 women) in Malta and five in Gozo.
This increase translates into greater availability of lawyers to the agency’s clients and lawyers having more time to provide a better service to our clients.
Recently, the provision of legal aid has also been extended to persons held for interrogation and/or persons under arrest. A first in Malta’s legal history. Now, persons called by the police for interrogation or held under arrest have the right to be assisted by a legal aid lawyer. The person has the right to ask the interrogating or arresting officer to be assisted by a legal aid lawyer at this crucial stage.
Recent improvements to the legal aid system in the Maltese islands include the setting up of a disciplinary board headed by a retired magistrate, which investigates any claims made by clients of the agency against legal aid lawyers or legal procurators. This board supplements the existing legal provisions in Maltese law.
Another first is the establishment and the issuing of Standard Operating Procedures for legal aid lawyers and legal procurators. These detail what is expected of legal aid lawyers and legal procurators, give guidance when certain issues might arise and establish a reporting procedure whereby lawyers must regularly update the agency on their caseload and the status of these cases. Training has also been made mandatory for legal aid lawyers.
A number of proposals intended to further improve the system are presently being studied and discussed internally. At the appropriate time all relevant stakeholders will be consulted on them.
A forum where these ideas will be discussed is expected to be held during the first quarter of the upcoming year.
Janice Chetcuti, lawyer and PN local councillor in Marsaxlokk
The importance of legal aid has been widely recognised in developed countries since it has been identified as a successful tool to diminish the socio-economic disparities within their respective societies. Legal aid is a good instrument for any state to ensure there is the existence of an effective right to access justice and the observance of the right to a fair hearing.
In Malta, the number of lawyers rendering the legal aid service is too small and it has to cover for the whole of Malta and Gozo. These are all included within the rotating system catering for both the civil and the criminal cases. Therefore, one would be assigned the first advocate available on the rota system.
This process may create a bit of a mishap since the nature of the case does not in any way influence the choice of the lawyer assigned. Specialisation, thus, is lost and many would agree that this might be an injustice in itself for the client.
Various issues regarding legal aid in Malta require to be addressed. ‘The Holistic Reform of the Justice System Commission’ was appointed and headed by Giovanni Bonello. The reform was to review various legal aspects within the whole Maltese justice system, and legal aid was one of them. Important amendments were also suggested in regards to these specific rotas. There would be two of such: one catering for criminal cases and the other for civil, administrative and cross-border cases.
The ECHR, so as to act as the expected champion for human rights, also allocates legal aid services to applicants who require it. This is possible through grants within a scheme of vouchers, which would later be redeemable at the client’s lawyer of choice (and not through rotas). This procedure is granted for the simple act of good practice.
It’s of no use having the convention and the ECHR acting as a watch dog over member states of the European Union, to see that there are no violations of human rights, if the relative separate domestic judicial systems are not adhering to the rules themselves.
Unfortunately, to date, the ECHR never defined what exact behaviour and instances could point out to what could be defined as “ineffective” or “inadequate” legal aid representation and therefore there is much room for interpretation. Appertaining case law shows that many violations were flatly found in such areas through widely manifested errors by the legal aid lawyers.
All countries including Malta, must do their utmost in ascertaining that there are no stumbling blocks when it comes for an individual to avail oneself of the legal aid service and therefore assure equality of arms to all as is requested and practised in the European Court of Human Rights.
Marcus Lauri, PRO of the Democratic Party
The legal aid service exists to satisfy a person’s right to be defended in court by a lawyer. However, questions often arise as to the adequacy of this service. At the heart of the matter is whether the lawyers who provide the legal aid service are as experienced, dedicated and/or thorough as the private or State lawyers of the opposing party.
While the funds allocated to the legal aid agency have been increased dramatically over thelast couple of years, surely with the express intention of improving the service, unchanged structural qualities in the system persist in providing more of the same.
The agency, by design, tends to attract a high proportion of new graduates who, promising and enthusiastic as they may be, are all often too inexperienced in getting the desired results for their clients in comparison to a private lawyer selected by the opposing party or a public prosecutor.
Furthermore, lawyers in private practice most invariably work for private firms which have a reputation to further and are understandably strongly motivated to do so. One advantage that private firms have over the legal aid service is the access to more valuable and motivated resources, especially the opinions of other lawyers within the same firm to help to ensure a more meticulous legal strategy for the firm’s client.
Remuneration is another factor. Private practice yields higher pay. And while the number of lawyers involved in litigation is on the decrease, mainly due to the nature of the job being so demanding and stressful, and pound for pound, promises significantly lower remuneration when compared to most other types of legal work (such as those tied to banking, commerce and corporate domains for example), private practice remains much more attractive to litigators than working for legal aid. This in turn designs a natural process of selection, whereby the more ambitious lawyers strive hard to work in private practice.
The Democratic Party believes that while there is good faith by all stakeholders in the provision of legal aid, the system itself can all too often provide an inferior service than that of its counterparts, putting any client at a disadvantage.
In order for such deficiencies to be addressed, the PD is in favour of the legal aid system being overhauled in terms of the pool of potential lawyers who may provide such aid. Legal aid clients should have unrestricted freedom of choice when selecting a lawyer to defend them.
In simple terms, persons who would be eligible for legal aid may select a lawyer from private practice, his or her fees paid for by the State. The outsourcing of legal aid will invariably increase the costs of the agency, however, concomitantly, administration costs are poised to decrease. The legal aid office itself will probably also shrink in size, contributing to further cost-saving.
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This is a Times of Malta print opinion piece