Recently I learnt that it is okay to criticise politicians, doctors, priests and even judges, but don’t dare touch the lawyers! To those who doubted the credibility of my claim that justice and lawyers’ fees are not affordable to many, rendering justice inaccessible, the "evidence" must surely have been provided by the hundreds in the public who took to the airwaves agreeing with my considered observation. Several media polls were held and each attracted over 96 per cent agreement with the statement. Many were empowered to tell their stories of injustice suffered in the legal system and the accompanying financial woes.
My reflection that our laws and justice system remain inaccessible, with a large degree of mistrust, cynicism and lack of confidence in the administration of justice, was unfortunately echoed and endorsed by these many citizens publicly and privately. Access to justice is not prioritised, justice is slow and unwieldy, with unnecessary adjournments, which increase costs, all of which cause frustration and alienation to those who seek redress.
There was an honest and sobering response to the issue by Gabriel Faria (Chamber of Commerce) and Reginald Amour (former president of LATT), who explained that many companies were moving toward alternative dispute resolution (ADR) as a response to high legal fees. This revealed that there is a concern even in the legal services "market".
I reiterate that the question of lawyer’s fees is but one small aspect of the much broader problem of inequities in our society, reflected in our legal system and a failure to prioritise rights, all of which concern me. In my feature address at the opening of the Law Term, I sought to raise awareness among the legal fraternity that we too, have a collective responsibility to confront these harms and that we could no longer afford to be passive participants in the justice system.
The inherent social (class) biases and economic disparities manifest at every stage of our justice system. The ‘who’s who’ and the ‘have plenty’s’ face a different justice system to the ‘have nots’ and the marginalised. Even with children who confront the law, it is rare indeed, perhaps unheard of, to identify a single rich child who has had to be placed in a juvenile ‘home’, although they too break the law, such as drug use. Many people cannot afford bail and are at the mercy of "professional balers." Legal aid is problematic. Thinkers like Renee Cummings have warned us of the social upheaval such disenfranchisement causes.
As my principal, PVC Brian Copeland says often: "We cannot keep burying our heads in the sand." Lawyers too must participate in the kind of deep social reflection and activism that is needed for genuine progress.
Access to Justice a Right
But back to fees—I believe that all citizens have a right to access the courts and obtain justice. The knee-jerk responses that people should be able to afford fees if they can afford "other things" really misses this point and depends on your perspective. If you consider that justice is a privilege and not a right, then certainly, we should be prepared to pay even the highest rate. However, if you believe that access to justice is a fundamental right, then something is certainly wrong in this Utopia. Similarly, if we value education as a right, then schools in rural areas must be equally served, or if we value health as a right and not a privilege, like the Scandinavians and Cubans, as opposed to the US, then all citizens will have equal and adequate health care. A Schedule of Fees does not entirely solve the problem, especially if, as was revealed, it is often breached and that schedule is self-regulated and set without apparent awareness of societal realities. Justice is not a luxury good. It is not to be measured by dollars and cents. The dignity of obtaining redress is the same whether for $100 or one million dollars, particularly for a poor, disenfranchised person.
Are there young lawyers who are overworked and under-paid? Of course. Are there lawyers who do pro-bono work? Of course, there are. It tends to be high-profile cases but is nevertheless valuable. What I have asked and continue to ask is that we do more.
Incidentally, the mandate of the Faculty of Law, UWI, unlike the law schools, is not practice, but intellectual grounding. Our students are not qualified to offer legal aid/services. Despite this, the Faculty of Law has indeed sought to contribute to this greater need to serve the public more directly. We initiated an innovative Human Rights Clinic, where we work pro bono, with NGOs and practitioners. It is ironic that those who complained about "evidence" would not have bothered to check this information. Moreover, a university, especially a world-ranked university like The UWI, is obliged to promote dialogue and debate, as Vice Chancellor Beckles emphasises.
Collective Responsibility to Spearhead Transformation
My deeper message continues to be the urging for the legal system and the legal fraternity to dig deeper to meet the challenges of emerging and enduring problems, as the public expects. This includes the need to continue the positive reforms in the Judiciary and more emphasis on radical reform to the magistracy. Certainly, transformation is a difficult exercise and sometimes we are tempted to kill the messenger. The social purpose and role of law, lawyering, judicial functions and lawyers, are intricately bound up with defining that road map for positive change, the much-touted social engineering to uplift our societies, and it must be harnessed.
We need to constantly remind ourselves of our true identity as upholders, shapers and shakers of the law, not merely advocates in the narrow sense. This requires an attitudinal shift toward a system that is genuinely caring and offering solutions that are relevant to peoples’ lives.
Judges, legislators, the police and lawyers must also have deep understandings of the nuances, conceptual groundings and realities of our society which must underpin the judicial system, whether these be diversity, inequalities in the justice system, citizen insecurity, disability and the like, despite the challenges of constant flux.
It was in this broad context of inequity, rights and collective social responsibility that I referenced the touchy issue of lawyers’ fees. Justice must reach and embrace those it seeks to serve. Lawyers’ fees are directly related to the quality of our justice system and how the citizenry can participate in it. I reiterate addressing the problem of the two sets of fees that still obtain in this country (instructing/advocate), despite fusing the profession, and the possibility of contingency fees, as practical solutions.
We should view lawyering, not from an individualistic perspective, but through its collective social lens. At its core, our judicial system must be a humanising and equalising force in society and we, as legal practitioners and judges, should be the architects of law and justice, conscious and committed to building the societies we want and deserve, not mere technicians, plying our trade with a dispassionate expertise and no thought for the bigger picture.
Throughout history legal reform has underpinned and often spearheaded every great social transformation. We were reminded by the Howard’s President Frederick in the Distinguished Jurist lecture, that in the US, it was lawyers with a passion for equality and justice who systematically and successfully brought legal challenges to the unjust, racist laws, resulting in legal reform, the Civil Rights Act.
Lawyers should be front and centre of the many troubling issues that we still need to confront, to propel change through legal challenges and advocacy. The week before, the Faculty of Law UWI presented a hearing on Remand Injustice to the Inter-American Commission on Human Rights. We highlighted a travesty that offends the basic norms of the justice system. Trinidad and Tobago has the second-highest remand population in the region, after Haiti, with many remandees incarcerated for over ten years, awaiting trial, still innocent in the eyes of the law. Some were proven innocent after these long years of remand. We identified also a startling pattern of inherent gender bias in the system whereby women remandees who were victims of domestic violence are charged for murder and languish in our jails.
This issue, caused by multi-sectoral failures, has been invisible in the public and the legal fraternity. Apart from the faculty, which began interrogating the problem four years ago, it was the Judiciary which took the first step—attempting to decrease the backlog and highlighting the possible unconstitutionality of this phenomenon.
Unsurprisingly, some lawyers would be defensive about fees given the perceived threat to 'bread and butter'. Yet many of those in the audience who actually heard my full address at the Cathedral commended it, orally and in writing. I, therefore, remain hopeful that my message will inspire reflection and change. Perhaps LATT could consider a study on the fee issue?
Prof Rose-Marie Belle Antoine is the Dean, Faculty of Law, University of the West-Indies, St Augustine.
