Is our legal aid system adequate?

Legal aid is afforded to Maltese citizens both in criminal and civil matters though this is far more restrictive in the latter. On March 9, 2000, the system of legal aid in criminal matters was totally revamped. Today, almost four years later, it is perhaps worth seeing if the system has improved or if it is time to reconsider how it can be revamped even further.

Some time ago, I asked the Justice Minister in Parliament to give me a breakdown of the costs incurred by the government in legal aid over the past few years. From the information given, it transpires that while under the old system the expenditure was about Lm43,000 annually, today it appears that, at face value, this has gone down to about Lm18,000. Therefore, yes, in economic terms it would appear that the state is saving about Lm25,000 a year.

In truth though, Lm25,000 would appear to be a mere pittance in comparison to the millions spent in the administration of justice. Thus, if the quality of the service being offered now has regressed then the savings would definitely not justify the reforms.

Under the previous system, an accused person would approach a lawyer of his choice. The defendant and his attorney would then inform the presiding magistrate that the accused is poor and the court would appoint the lawyer in question as his legal counsel. This approach was by far too liberal and in practice could give rise to abuse. However, instead of introducing amendments to improve the system, the then Minister of Justice decided to scrap it completely.

Today, the government nominates, from time to time, a number of lawyers to assist in criminal cases. At present, there are 13 who are appointed to assist before the Magistrates' Courts and three before the Criminal Court.

An accused person who has no means of his own is now precluded, a priori, from selecting a lawyer of his own choice. In criminal matters this could be both dangerous and anti-constitutional.

The remuneration given to advocates of legal aid is exceedingly low, a mere Lm500 a year, and this alone tends to discourage the services of top criminal lawyers. This is very prejudicial to defendants who happen to be on the lower financial bracket. Furthermore, and I say this without meaning any offence to the lawyers nominated, a good number on the list are civil law lawyers who do not normally practise in criminal law.

Taking all this into consideration, it would perhaps appear wise to reconsider the institute of legal aid in Malta. I think it would be well to revert to a system similar to the former one, albeit with greater controls regarding the tariffs and the people who are entitled to such a service.

A system of pro bono could be introduced in exceptional circumstances before the Criminal Court. In fact, a sort of roster in this regard should be introduced. This should include all practising lawyers in the criminal cases.

Much can be said too about legal aid in civil cases. Here, the problems do not emanate from the remuneration paid to lawyers since more often than not they are paid according to court tariffs. What needs to be reconsidered are the benchmarks imposed on those who could seek legal aid. As the situation stands today, few are entitled to this service. This is wrong.

Clearly, it is time for the Justice Minister, who is introducing, in a bulldozing manner, as many reforms as one can possibly imagine, to start tackling the issue of legal aid.

Dr Herrera is the Labour Party's spokesman on financial services.