Constitutional reform pt. 6: ... ...I recommend therefore that the recommendations of the disbanded Legal Aid Commission be reviewed ...and used as a guide for the establishment of a Public Defender’s Office and Legal Aid Facility, funded from public and private sources ...to balance the power and resources that the attorney general, the director of public prosecutions and commissioner of police bring to the prosecution on behalf of the state ...and to give the indigent defendant and litigant a fair opportunity to defend her or his life, liberty and property

Constitutional reform pt. 6

By Alfred Sears

In a democratic society the right of every person to be secure in the protection of the law is a basic safeguard of the liberty interest of each person.  When the liberty interest of a person is threatened by a serious criminal charge, the extent to which the accused can have a fair hearing within a reasonable time, in the face of the enormous resources of the state at the disposal of the prosecution, is the test of a democratic society.

The procedural protection for accused persons under the constitution reflects the extent to which the constitution places the state under the rule of law in balancing the interest of the individual and society.

Article 20 of the constitution provides procedural justice, through the guarantees, for example, of the presumption of innocence, public trials, right to trial by jury, the right to counsel and the right to not incriminate oneself.  These rights, based on the principle of fundamental justice, are not exhaustive because the concept of natural justice, like the constitution, is an evolving concept.  This proposition was supported by Lord Diplock, writing for the Privy Council in the case Haw v. Public Prosecutor (1981) 3 All ER 14 at 21-22, who observed that: “Their lordships recognize, too, that what may properly be regarded by lawyers as rules of natural justice change with the times.  The procedure for the trial of criminal offenses in England at various periods between the abolition of the Court of Star Chamber and High Commission in the seventeenth century and the passing of the Criminal Evidence Act in 1898 involved practices, particularly in relation to the trial of felonies, that nowadays would unhesitatingly be regarded as flouting fundamental rules of natural justice.”

Similarly, in The Bahamas our concept of fairness must be informed by the evolving standard of decency and fundamental justice under international human rights law.  The procedural justice standard to secure the protection of the law for persons in The Bahamas is outlined in Article 20 of the constitution which provides:

1) If any person is charged with a criminal offense, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

2) Every person who is charged with a criminal offense:

a) shall be presumed to be innocent until he is proved or has pleaded guilty;

b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offense charged;

c) shall be given adequate facilities for the preparation of his defense;

d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice or by a legal representative at the public expense where so provided by or under a law in force in The Bahamas;

e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;

f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge; and

g) shall, when charged on information in the Supreme Court, have the right to trial by jury; and except with his own consent the trial shall not take place in his absence unless he so conducts himself in the court as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

3) When a person is tried for any criminal offense, the accused person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy of for the use of the accused person of any record of the proceedings made by or on behalf of the court.

4) No person shall be held to be guilty of a criminal offense on account of any act or omission that did not, at the time it took place, constitute such an offense, and no penalty shall be imposed for any criminal offense that is severer in degree or description than the maximum penalty that might have been imposed for that offense at the time when it was committed.

5) No person who shows that he has been tried by a competent court for a criminal offense and either convicted or acquitted shall again be tried for that offense or for any other criminal offense of which he could have been convicted at the trial for that offense, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

6) No person shall be tried for a criminal offense if he shows that he has been pardoned for that offense.

7) No person who is tried for a criminal offense shall be compelled to give evidence at the trial.

8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.

9) All proceedings instituted in any court for determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public…”

However, the effectiveness of these constitutional guarantees, such as the presumption of innocence, can be challenged when a person is charged with sensational charges or when the interests of powerful persons and countries are involved.  The issue of the secure protection of the law and state action was raised in the case of Samuel Knowles.  Knowles was the subject of extradition requests by the United States, after having been designated by the president of the United States as a drug “kingpin” under the Foreign Narcotics Kingpin Designation Act 1999.  Knowles applied for habeas corpus, based on subsection 7 (1) (c) of the Extradition Act (Ch. 96 of the 2000 Edition of the Statute Laws of The Bahamas).  The hearing was assigned to Justice Lyons who, at a case management meeting with both counsel present, fixed the matter to be heard on September 28, 2006.  On August 28, 2006 Knowles was extradited to the United States.  The Bahamian Court of Appeal, in Knowles v. The Government of the United States of America and another (2008) 5 BHS J No. 67, made the following, obiter dicta, observations: “We cannot leave this judgment without recording this court’s serious concern about the manner and timing of the order for the removal of the appellant from The Bahamas at a time when the executive well knew that Lyons J had fixed a date a little over a month away to hear the appellant’s application.  Further, the executive must be taken to know the law and to have understood that by then the statute conferred a right on both sides to appeal to this court from the grant or refusal of habeas corpus on the kingpin ground and that both sides would have had a further right to appeal to the Privy Council from this court’s decision.  In those circumstances, to have ordered the surrender of the appellant 10 days after the learned judge had fixed a date for hearing the application, is clearly an egregious breach of the statute and is without precedent in this country.”

 

Representation

Effective and equal access to justice is another issue, under Article 20 (2)(d) of the constitution, which needs examination.  This provision guarantees the right to legal representation for accused persons either at expense of the accused or at the public expense.  This provision was intended by the framers of our constitution to provide the secure protection of the law for both affluent and poor persons in The Bahamas.

For most people who appear before our courts in The Bahamas the right to counsel is merely a theoretical right, as most poor people cannot afford legal representation.  One consequence of our failure to provide a properly funded system of legal aid is that the justice or magistrate often has to intervene during the conduct of a trial to assist the unrepresented person with court procedure; thus, delaying the administration of justice and causing significant backlogs in the system.  Further, in criminal matters the registrar is forced to seek out attorneys from the private bar to accept Crown briefs, often at short notice; rather than dealing with the administration of the court and other judicial duties.

The Bahamas has no comprehensive national system of legal aid for indigent persons in both civil and criminal matters before our courts even though we boast one of the highest per capita incomes in this region.  Section 191 of the Criminal Procedure Code Act provides:

In any case in which it appears to the Supreme Court that an accused person committed for trial has no money wherewith to retain Counsel –

(a) if the accused is charged with an offense for which the punishment is death, the court shall assign counsel for the defense at public expense; and

(b) in any other case, the court, in its discretion, may assign a counsel for the defense at the public expense.

In practice, the registrar of the Supreme Court, operating with the limited resources allocated to the judiciary, tries to find lawyers willing to accept a Crown brief to

represent indigent persons primarily charged with murder.  Seldom would the more experienced lawyers from the criminal defense bar accept these Crown briefs; thus, mostly less seasoned criminal defense lawyers often handle such cases.

In other Caribbean countries, such as Jamaica, for example, the more seasoned lawyers, including Queen’s Counsels, from the criminal defense bar eagerly accept Crown briefs and legal aid cases as a part of their professional duty and for the professional challenge.  Because of the limited budget, the registrar cannot offer a Crown brief in most non-capital cases.  Therefore, many poor accused persons who face indictable charges in the Supreme Court are not provided with legal representation, at the public expense, as contemplated by Article 20(2)(d) of the constitution because The Bahamas has not made any legal provision for a public defense and legal aid system.

This state of affairs raises a serious constitutional concern whether unrepresented poor persons facing serious criminal charges receive the constitutional guarantee of due process and the secure protection of the law.

Discrimination against poor people in legal procedures was addressed by Justice Douglas, writing for the majority of the United States Supreme Court, in the case Griffin v. Illinois 351 U.S. 12 (1956): “Due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations.  In criminal trials, the state can no more discriminate on account of poverty than on account of religion, race, color... .  To deny adequate review to the poor means that many of them may lose their life, liberty and property because of unjust convictions which appellate courts could set aside.  There can be no equal justice where the kind of trial a man gets depends on the amount of money he has... ”.

Similarly, the United States Supreme Court in the case Douglas v. California 372 U.S. 353 (1963), per Justice Douglas rejected California’s requirement that an indigent defendant had to first show merit in order to qualify for legal aid.  Justice Douglas reasoned that: “The discrimination is not between possible good and obviously bad cases, but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but the poor man cannot.  There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.  The indigent where the record is unclear or errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

 

What to do

We must ask ourselves in The Bahamas whether, in the absence of a national system of legal aid, indigent defendants facing serious criminal charges must shift for themselves and engage in a meaningless ritual compared to more affluent defendants who can afford to retain effective legal representation.

I maintain that our collective failure to provide a properly funded system of legal aid for indigent defendants and poor persons in criminal and civil matters challenges the constitutional guarantee of procedural justice and fairness.

An effort was made to remedy this situation in 2004 when Prime Minister Perry Christie appointed the Legal Aid Commission, under the chairmanship of Bishop Dr. William Thompson, to enquire into the adequacy of the system of legal aid and advice in The Bahamas and to make proposals for the way forward to improve access to justice.  However, after the general elections of 2007, the government disbanded the commission.

I recommend therefore that the recommendations of the disbanded Legal Aid Commission be reviewed and used as a guide for the establishment of a Public Defender’s Office and Legal Aid Facility, funded from public and private sources, to balance the power and resources that the attorney general, the director of public prosecutions and commissioner of police bring to the prosecution on behalf of the state and to give the indigent defendant and litigant a fair opportunity to defend her or his life, liberty and property.

 

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Sep 27, 2012

thenassauguardian

The cost of justice in The Bahamas

The cost of justice
By ALISON LOWE
Tribune Staff Reporter
alowe@tribunemedia.net:



IN THE BAHAMAS most people have come to accept that getting a lawyer or being a lawyer involves a lot of money. The recent election court battle that saw a court for just under two weeks hear arguments by some of the country's top lawyers about which votes could be counted in the Elizabeth by-election was a relatively swift process - and yet it is now said that FNM candidate Dr Duane Sands, who was not the victor, is being asked to pay $150,000 in legal fees. This represents a mere quarter of the overall price tag for the services of the teams of lawyers who worked on the case.

Even for a successful professional, making such a payment is no mean feat. It is, however, the price he had to pay to obtain the services of a good lawyer, and having lost the case, the added expense of having to pay the legal fees of his opponent, the PLP's Ryan Pinder -- now the Elizabeth MP.

Access to justice and the "protection of the law" to which the Constitution entitles us has a price tag -- and a hefty one. It is because of this, and a lack of political will, that this "fundamental right" has remained consistently unavailable to many Bahamians, regardless of their social status.

Last Wednesday, Bahamian high society turned out in their hats, pearls and coat tails to hear Governor General Sir Arthur Foulkes describe in the Speech from the Throne the government's new legislative agenda -- the laws it intends to enact and the changes it plans to make.

The agenda was touted as one of "modernisation and reform" and indeed if it is accomplished, the Bahamas will be better off. However, to the disappointment -- although not great surprise -- of some, the promise made in the government's 2007 election manifesto, "A Matter of Trust", that a statutory legal aid programme would be implemented in The Bahamas, was not mentioned.

This did not come as that much of a surprise to this writer, as an e-mail exchange with Attorney General John Delaney had already confirmed that the government's position now is that the promise of legal aid in this FNM term is one that "the prevailing economic climate" means the government "cannot execute at this time."

"This position may be reviewed when revenue permits," said Mr Delaney.

However, I would argue that enhancing access to legal aid in The Bahamas should be a critical priority for the government and society.

A lack of access to legal advice and representation is a problem that confronts too many Bahamians today. It too often does not mean finding a way to pay the bill, like Dr Sands, it means they cannot protect their basic rights because they cannot hire a lawyer in the first place. People of all ages are being dispossessed of generational land, abused, robbed, and thrown away in prison because of their inability to afford good legal advice and representation.

And while there is no empirical evidence to directly support this deduction - in part because the Bahamas does little social research - it is my belief that anyone with commonsense can only conclude that these violations must feed into the cycle of crime and violence we see gripping The Bahamas today in a way that should cause us to open our eyes and do something about it.

The argument for legal aid is not a purely theoretical one. When a person is left hopeless, aggrieved and frustrated by their inability to get redress for a legitimate problem they face they are more likely to take matters into their own hands, or take out their frustrations on a weaker member of society, like their child. Meanwhile, a person who commits a violation and does not get his or her comeuppance is more likely to go on violating. Most Bahamians will have known someone in this predicament.

The cost of legal aid can be offset against the minimized costs of fighting the crimes that may result if people don't get it, or the unemployment benefit that someone will need if they are wrongfully convicted of a crime and lose their job, or the medical treatment they will need if they remain in an abusive situation. It will help promote peace and order, which is arguably cheaper than instability.

In The Bahamas today, the only time a person who needs the assistance of, but cannot afford a lawyer, is given one free - facilitated by the government - is when he or she is charged with a "capital" crime to be tried in the Supreme Court and is considered destitute. Facing the removal of their liberty for a significant period of time, they will be appointed a legal defender from a list of private lawyers known by a judge to be willing to take on cases "pro bono" that is without a fee.

However, they only get access to the lawyer after they have been arraigned. What about when they are being detained or questioned? This can be a harrowing and intimidating experience for any person and in many countries the idea that a person would go through this without a lawyer who knows their rights is totally contrary to fairness and justice. There continue to be allegations of individuals being beaten or otherwise harassed in police custody and one can fairly imagine that this may contribute to the possibility of false confessions. Just last week I was told of the case of a man who was picked up for questioning as a witness in connection with a crime and kept for two days without food or water at the Central Detective Unit. A good Samaritan attorney went to check on him and found him almost "delirious". He was eventually released onto the streets of Nassau, having been picked up in a Family Island and brought to New Providence with no money and no personal identification, and told he was "free" to go home. The - by all accounts - innocent man had been treated as if he were a known criminal, likely because he had no lawyer by his side when he was taken into police custody.

Free legal defense is certainly not available under the present system for people charged with non-capital crimes, which make up the majority of all crimes for which people are tried and which can also carry hefty jail terms.

Large numbers of such individuals come before Magistrates in the Bahamas on a daily basis and can be sent to prison without so much as a murmur in their own defence. It might comfort us to think that each of those individuals is a hardened criminal who deserves everything he or she gets - but what if they were falsely accused? In the wrong place at the wrong time? What if they were you, your brother, sister or child? Even if they committed the crime, are they not entitled to the services of an attorney who can ensure that they are not punished beyond what they are due? If they are a child, or an adult with the mind of a child, should we not seek to afford them the protection of someone who can look out for their interests, only assuring that they get their just deserts under the law - nothing more, nothing less.

The US State Department, in its annual human rights report, has commonly acknowledged that Bahamian legal observers and human rights activists believe that where defendants come before a judge to be tried without an attorney "this lack of representation risked hasty convictions on the basis of unchallenged evidence, particularly in the case of poor or illiterate defendants."

In this sense, a lack of legal aid contributes to the perennial problem of overcrowding at the prison and the demand for tax payer funds to support the existence of those incarcerated in two obvious ways: Firstly that those charged and awaiting trial on remand, if without legal counsel, are less likely to see their case "moved through the system" as swiftly as someone who can afford such representation, and thus may remain on remand for longer, and secondly, because those without legal representation are more likely to - as the State Department records - be swiftly convicted once they do come before the court, perhaps even for crimes they did not commit.

In 2008, when I spoke to then Minister of Legal Affairs and attorney by profession, Desmond Bannister, on the subject of the concerns raised by the US State Department on lack of access to legal aid in The Bahamas, he noted that "any practitioner in law" would have to agree.

Legal aid is not a revolutionary concept. In countries like the US and the UK, and even in many of our fellow Caribbean nations, legal defence is provided in a more expansive form under the auspices of the state. Public defenders are made available in the UK from the point of arrest and interview, to trial, in all criminal matters at all court levels. Civil legal advice is also available.

A glance at the website of the U.S. Legal Services Corporation, which describes itself as "America's Partner for Equal Justice" since its founding in 1974, provides an insight into the kind of critical assistance people can get through a government legal aid programme - assistance that relates to the most fundamental aspects of their existence.

"Legal Aid gets loans modification for couples facing foreclosure", "Back wages secured for workers in overtime case", "Legal Aid saves home for elderly victim of credit card fraud", "Veteran no longer homeless" are some of the headlines on articles highlighting the work of the LSC, which came about after the U.S. Congress determined that "there is a need to provide equal access in the system of justice in our nation for those who seek redress of grievances" and that this should be done through the provision of "high quality legal assistance to those who would be otherwise unable to afford legal counsel."

Today in the Bahamas we are faced with the troubling irony that despite having more than 1,000 persons called to the Bar - access to good legal representation for the majority of Bahamians is as rare as ever.

Both the present and the last government, those led by Hubert Ingraham and former prime minister Perry Christie, have overtly recognized the need for a legal aid programme in the Bahamas. Both included plans to set up such a programme in their election manifestos of 2002 and 2007.

After three years in office, Perry Christie appointed a Legal Aid Commission in 2005 to look into the adequacy of the legal aid that existed already in the Bahamas, what needs there might be, and to propose how a more expansive programme could be implemented.

The Commission, chaired by Rev. William Thompson, then President of the Bahamas Christian Council, which had attorneys Peter Maynard and Arthur Dion Hanna Jr, both long time proponents of legal aid, as members. Mr Maynard had operated one of the country's longest running monthly legal aid outreach programmes through his private practice, Maynard and Co., and had written extensively on the subject at the international level. Mr Hanna, is the Director of the Eugene Dupuch Law School's Legal Aid Clinic. Both worked diligently for some time toward producing a report on the matter.

After being appointed in 2005, the committee was given six months to complete the report.

In the same year, Ian Morrison, writing in a report compiled on behalf of the Inter American Development Bank on Legal Aid in the Bahamas, said that the outcome of the commission would be critical to any success in moving forward the provision of legal aid.

In his report, the Canadian attorney outlined the needs that exist for legal aid in The Bahamas throughout various areas.

Outlining criminal law needs in the Supreme Court, Mr Morrison noted that while defendants are given access to legal representation if they are put on trial in the Supreme Court and can't afford a lawyer, this system of representation still has "serious inadequacies." He notes: "At this point the accused has likely been in custody some time, has been interrogated and gone through a preliminary inquiry without access to an attorney." In the magistrates courts, he records his finding that no legal aid provision is available despite the fact that people accused in the magistrates court can "still face significant periods of imprisonment and the volumes of people getting tried in the magistrates court are much higher than in Supreme Court."

The attorney further documented the needs that exist for legal aid in other areas, including: family law (documenting that "the need is particularly acute for women leaving or trying to leave abusive relationships"); juvenile matters ("children and youth in conflict with the law are not automatically entitled to counsel. Some informants felt that legal aid in Juvenile Justice matters was an important unmet"); land/property issues (Morrison notes that land title is a "pressing problem" and people for whom generational land may be their "only significant possession" are being subject to "fraud on title or sharp practices to dispossess them or prevent them from receiving the real value of their land") and for prisoners (the US State Department regularly comments in its annual human rights report on the Bahamas that lack of access to legal counsel, which the Bahamian Prison Reform Commission estimated to affect at least 60 per cent of all inmates in 2003, contributes to "excessive pre-trial detention" as individuals do not have an advocate to push their case forward).

Mr Morrison also referred to how the archipelagic nature of The Bahamas meant that one of the "greatest challenges to legal aid services" in the Bahamas is geographical. "Many of the poorest people in the country live on the outer islands and have no effective access to any of the services available in New Providence," said Mr Morrison.

He finally states: "If the government of the Bahamas decides to establish a statutory legal aid programme, the scope and nature of that programme will determine to what extent existing needs will be met and where opportunities for supplementation will lie. If the work of the Legal Aid Commission does not lead to political action, then the need for an options for non-governmental services will be very different. Clearly, there is a huge amount of unmet need under the current system (or lack thereof), and this will not be addressed without substantial additional resources," he cautioned.

Five years on, we have seen neither the establishment of a statutory legal aid programme nor any attempt to put "substantial additional resources" into the non-governmental legal aid system.

Asked in 2008 where the government stood on legal aid and what its plans were with regards to implementing it, then minister of legal affairs Desmond Bannister told this newspaper the government "would not wish to pre-empt" the Legal Aid Commission's findings.

However, through recent interviews with the Commission's Chairman Rev. Thompson, Mr Hanna and Mr Maynard, The Tribune has discovered that it has been over three years since Rev. Thompson, called a meeting of the Commission. A draft report lays gathering dust somewhere in the attorney general's office, left unconcluded due to reported disagreements between the Commission's members over what its conclusions should be.

Both Mr Maynard and Mr Hanna, when contacted by The Tribune, expressed their view that the report was of great import and the need for legal aid remains great.

Each gave their own view of why the commission's work has thus far failed to come to fruition.

"I am so frustrated," Mr Hanna told The Tribune. "The whole thing - where we were and where we ended up is so strange. When we started out we were in real academic pursuit. We investigated all kinds of things. But somewhere along the line we changed course. I wasn't part of the changing course. I didn't make the noise I would usually make. We got diverted and I blame that on the Commission itself, not on the government," he said.

Mr Hanna cited disagreements between himself and Mr Maynard over what recommendations the final report should contain as the reason for the stalemate.

"Compiling the report took a toll on me," said the lawyer. "I don't intend to do anymore writing. I think it's unfair. I think they should get a ghostwriter to look at it and come to a consensus."

In the three years since the commission last meeting, Mr Maynard has remained busy at the local and international level pushing forward the pro-bono agenda. His firm, Maynard and Co, facilitates a legal aid clinic once every month where Bahamians with legal problems seek free advice.

He authored the International Bar Association's Pro-Bono Declaration which was accepted unanimously by the International Bar last year in Buenos Aires, Argentina. "It talks about pro-bono work and the necessity of it," explained Mr Maynard.

His "Pro-Bono Declaration" also speaks to the fact that even where a national bar association is active in ensuring its members provide some pro bono services to their communities, such activities "do not purport to replace the obligation by a government to support the human rights of its people by providing legal aid or counsel," Mr Maynard explained.

Mr Maynard, a former Bar Association President, added: "I'm not sure what's holding up the report. I've noticed some omissions in it and I'd like to see those things that are omitted in it, and I'm prepared to put them in if necessary. But I'm not the Chair, I'm just a member."

The Commission's chair, Reverend William Thompson, who is responsible for calling meetings of the Commission, somewhat surprisingly said he too was "disappointed" the commission did not conclude its work and was not quite sure why it did not. "We definitely do need a legal aid system," said Rev. Thompson. "That's why we went about our work with such tenacity."

As the government continues to wait on a report whose authors have not sat down together in three years, we are today no closer to ensuring that the average Bahamian with a salary of $200 a week has as much ability to see their rights protected as a top earning Bahamian, notwithstanding pronunciations of commitment to upholding this ideal by those with the power to do something about it.

Of course, Legal Aid is not the be all and end all of society's problems - people need legal help because things have already gone wrong - but it is an important human rights issue that affects so many Bahamians' quality of life directly, and can affect each of our lives indirectly when we live in a society that allows its weakest members to be violated and to go on violating without recourse because of their status in society. What is most ironic and sad that in many ways it is those who often most need legal advice have the least access to it.

There is, however, one bright light amongst the bureaucratic and political darkness on this issue: the Eugene Dupuch Legal Aid Clinic. Housed in a small office in Oakes Field, the Clinic is in fact primarily intended as an instrument of education -- the place where second year students taking their Bar course go to get hands on experience of being a lawyer. And it is, according to the students, an excellent but steep learning curve. As the only institution that has offered free legal advice and representation to indigent Bahamians on a consistent basis - doing so for the last ten years - its director, tutors, pupils and students have taken a hefty caseload and moral burden onto their shoulders over the years.

Each student regularly takes on up to 20 cases - on matters ranging most commonly from women and children's issues like divorce, child maintenance and abuse, to land matters, labour matters and criminal cases. These students have handled a wider variety of legal issues in their first few months at the clinic than many lawyers will see in a lifetime and it puts them at the top of the list when it comes to case load per student for all law schools in the Caribbean - where, for example, in Jamaica and Barbados the legal aid clinics operate in a system where a government legal aid programme also exists. Under the guidance of committed tutors like attorneys Clive Guy and Elsworth Johnson, along with current acting director, former Justice Jeanne Thompson and director Dion Hanna (on sabbatical), the students work diligently to push these matters forward while simultaneously studying and working towards their final year exams.

Social services, the police, Members of Parliament, and even lawyers themselves who find their clients can't pay their fees, all send people to the Clinic for help.

Mr Johnson said: "You get women who've been battered, boys and girls who've been abused in our society, people who have land issues, registered conveyancing, generation property issues. You wouldn't have this whole issue where people are being dispossessed because you'd provide a way for them to get these properties (if there were more access to legal aid). But instead you have people being constantly dispossessed. And that's not even looking at the issues with the police or with personal injury matters."

Clive Guy talks about the "dilemma" he and the students feel when members of the public come in with serious matters, even when the Clinic is faced with funding shortfalls and has as much as it can handle on its hands.

He said: "There's a tremendous demand for legal aid. The problem we've been having at times is that our students have case loads of up to 20 to 25 cases. Now with all your other work and doing that, you can understand why that became quite a strain."

"But when someone comes in impoverished and they want help, really this is it when it comes to access to justice. This is not something that you do because it's a nice thing to do, you do it because it's essential. When you're talking about peace, order and good governance in society, having a legal structure where anyone regardless of your position in society, your ethnic background, can have free and just access to the court, legal aid becomes an essential pillar of that," said Mr Guy.

Because of a shortage of financial resources - the Clinic is funded by the law school - and given the huge demand for the service they provide, Mr Johnson estimates that as many as 80 per cent of the people who come into the clinic who do in fact appear to have cases have to be simply turned away. They may be put on a waiting list and contacted later in some cases, but they cannot be helped then.

Mr Johnson and Mr Guy have politely suggested that given the extent to which, not only is the clinic providing a valuable civic service, but to which even government agencies like Social Services and lawmakers such as parliamentarians themselves refer individuals to the clinic - aware of the assistance it can provide - it would only be fair for some additional resources to be channeled their way.

"The resources are very little but a lot is done from the clinic so it shows the potential if the clinic had (more money)," said Mr Guy.

Such funds could help pay the small, but in some cases insurmountable fees required by the Princess Margaret Hospital, for example, in cases where people have been injured on the job or in a car crash and are seeking compensation. The lawyer must review the medical records, but if the client can't afford to obtain them to start with, there's not much that can be done.

While the students work diligently for no financial reward, it is in some cases simple obstacles like finding money to pay the filing fee for a legal document in court which can stop a matter in its tracks. Meanwhile, based in Nassau the Clinic - although it does occasionally take up family island matters and takes its students to the islands to do clinics - is difficult for people in the out islands to access (its director, Dion Hanna Jr, is currently on Sabbatical writing an entire book focusing on the question of access to legal services for family islanders).

Some cases, which have a good chance of success, have to be turned away so that others that are considered an "emergency" can be dealt with immediately.

"The policy is that if a lady comes in and there's a serious matter where you've got to go get a protection order or a child issue that is urgent we have to respond to that," explained Mr Johnson.

Mr Johnson, a passionate advocate of legal aid who is in a better position than many to speak of the need for an expansion of legal aid in the Bahamas, says that the role of legal aid in a society boils down to "the rule of law or the rule of the jungle."

"If you want a 21st century administration of justice system legal aid has to play a critical role. These governments should be ashamed of themselves. I don't think they're really serious about the real issues that affect this country because if you come into legal aid you will see everything. Children that have been abused, men, women, people who have housing issues, people who just can't access the law. Almost everything is governed by the law. "

"Legal aid in our society is that valve that allows people to access the justice system so they have some degree of confidence in and they don't go and then take matters into their own hands. There is an urgent need for it," he said.

The challenge for students is not just to make sure they get good grades in an intellectually-demanding subject, it is to deal with the reality of funding limitations at the Clinic.

"We are limited in terms of our supplies - for example we only have two computers (for around 35 students who must spend considerable amounts of time typing up legal documents). We are limited in terms of space. We are here every day of the week, except Wednesday, when students go to court. We need material to work with. When the centre gets full we don't have enough interviewing rooms. If it's an ordinary day and persons must wait around, when it gets really full there are only about two rooms and persons are standing because there are no seats to sit down. The place is already small, then it becomes very cramped and very tight. For me that's the hardest part," said a second year student.

Law pupil Ambrosine Huyler, who came back to the Clinic after passing her law exams said her two-year experience there has "really opened (her) eyes to the need in our community for a national legal aid programme."

"Although the legal aid clinic has tried to assist as many persons as it can we just cannot assist everyone who walks through this door at this time because we don't have the funding to do it.

"Most of the people who come here are unemployed, referred to the clinic by the court, many of them have been women seeking divorces, so they don't have their husband to rely on. There are so many different types of matters and we just don't have the funding, so there's a waiting list and unless the case is one that is urgent sometimes you just can't take it on."

"A lot of times you have instances like that where your hands are tied. You want to help a client but we don't have the funding here. I feel a great weight because you would want to help everyone who works through the door," explained Ms Huyler.

The Eugene Dupuch Legal Aid Clinic wasn't always the only place people could go on a consistent basis to seek cheaper or free legal advice or representation. The Bahamas Bar itself, which governs the legal profession and to which all practising lawyers in the Bahamas are members, used to do more than it does today by most accounts. This is despite the fact that its ranks have swelled in the meantime - by over 300 more lawyers in the last three years to over 1,000.

In his IADB report, Ian Morrison notes in 2005 that the Bahamas Bar "made a commitment" to facilitating increased pro-bono activities by its lawyers, but the "overall commitment appears to be less than at some points."

Mr Morrison adds that while the Bar Association did operate a legal aid clinic in the past, which was faced with "heavy demand", the clinic is "no longer operating at much capacity."

All the more depressing is one of the reasons for this: Mr Morrison claims the Bar Association administrator at the time expressed their "reluctance to make referrals...because of complaints that lawyers to whom clients were referred charged fees or did not otherwise act in accordance with the pro bono understanding" - in other words, needy people were getting short changed.

"Although the BA does formally endorse and encourage pro-bono work by its members, this is not currently reflected in much organized pro bono," the Canadian lawyer said. He noted also the fact that many Bahamian lawyers, for several reasons, have tended to specialise in commercial law over other areas, which would put the burden of pro-bono for criminal work on a relatively small number of lawyers.

The Tribune was unable to reach current Bahamas Bar Association President Ruth Bowe Darville, who became President last year, for comment on where the BA stands on legal aid at present although anecdotal evidence suggests not much has changed since 2005.

If you ask Mr Hanna, he feels the fact that the Bar Association is not more active in encouraging and facilitating pro-bono work by its members is less to do with a lack of organization than a lack of character on behalf of some Bahamian lawyers.

"I don't think the legal profession has reached the stage of maturity where they are willing to sacrifice," said Mr Hanna.

Nonetheless, Mr Johnson sees it as important that lawyers should "give back" to the community that provides so much wealth and opportunity for many of them.

"You make your living from the community so you should give back. It doesn't take much. A lot of times people just want advice. Sometimes you just have to say I hear your concerns and your issues and you don't have a case," he said.

Mr Hanna goes a step further, proposing that if lawyers do not want to "give back" through the provision of services rendered, they should pay a fee to the Bar Association every year towards the cost of some other lawyer doing so. Such propositions were among those considered by the Legal Aid Commission of which he was a member.

One can understand the arguments of a politician against instituting a legal aid system in The Bahamas today. For one, it will be costly. The Bahamas is a developing country where many citizens experience situations that could ultimately put them in a position to need legal advice. Under a government funded system, people will have to be hired and paid to provide that advice to those many people. Meanwhile, we are already experiencing backlogs in our judicial system. If free legal advice and representation were available, more cases would go to court (because more people would gain access to the system) and cases in court might take longer to adjudicate, because a person who has a lawyer is less likely to be quickly dispatched to prison or to have their matter quickly ruled upon without all the relevant facts being raised and considered.

It is likely that with some of these factors in mind, the Government has said it doesn't have the money to institute a legal aid programme now. I would put the issue another way: With everything considered, can we afford not to do so? The basic rights of our people remain but words in a document that has little relevance to them if we do not provide mechanisms for their enforcement and those whose rights are trampled under foot can often become hopeless and helpless - which can be a dangerous thing.

If we cannot afford to implement an entirely new system, why not provide more funding for systems that are in place - like the Eugene Dupuch Legal Aid Clinic. Or push for the completion of the Legal Aid Commission's report so that preparation can be made to take progressive steps when "revenue permits"? At present this writer found that there is "nought but the sound of gentle silence", as former Justice Jeanne Thompson put it, to be heard with regard to any progress on the issue.

The onus of providing legal aid could be shared more fairly by the Eugene Dupuch Legal Aid Clinic, the Government and the Bahamas Bar Association if the members of the latter of these two institutions would step up to the plate on the issue. An excellent starting point for further progress would be the completion and consideration of the Legal Aid Commission's report.

April 19, 2010

tribune242

Bahamas Blog International