In re­cent days our le­gal sys­tem and mem­bers of the ju­di­cia­ry has come un­der in­tense scruti­ny due large­ly to com­ments and dis­cus­sions with­in the pub­lic do­main.

This new found scruti­ny stems di­rect­ly from the high pro­filed Pre­ven­ta­tive De­ten­tion Or­ders is­sued against sev­er­al per­sons. The doors of our High Court, Court of Ap­peal and now Privy Coun­cil has been knocked on, some doors be­ing used more fre­quent­ly than oth­ers. These Pre­ven­ta­tive De­ten­tion Or­ders, the per­sons they were is­sued against and the on­go­ing Court bat­tles has now opened the fo­rum for var­i­ous de­bates with­in our coun­try.

One con­sid­er­a­tion should be the costs of such le­gal rep­re­sen­ta­tion on both sides. What is clear, is that, oth­er per­sons who are be­ing held un­der sim­i­lar or­ders may not nec­es­sar­i­ly have the same ac­cess to the jus­tice sys­tem as oth­ers clear­ly do. This isn’t due to any par­tic­u­lar con­nec­tion or favouritism, but on the ba­sis that some par­ties have more fi­nan­cial ca­pa­bil­i­ties than oth­ers.

Ac­cess to jus­tice can be un­bal­anced due to the avail­abil­i­ty of dis­pos­able in­come. A per­son of bet­ter fi­nan­cial means may well be able to af­ford more ex­pe­ri­enced at­tor­neys at law, be able to se­cure sec­ond or even third le­gal opin­ions, re­tain high pro­filed ex­perts and cause a mul­ti­tude of ap­pli­ca­tions to be filed in Court to fur­ther their case. Where­as, a per­son of less­er means would not be able to af­ford the same ap­proach and may well feel bur­dened by the pres­sures of a le­gal mat­ter and ei­ther set­tle out of Court or lose.

In many in­stances we re­ly heav­i­ly on the ex­is­tence of the Le­gal Aid and Ad­vi­so­ry Au­thor­i­ty to jus­ti­fy the avail­abil­i­ty of free le­gal ad­vice or ac­cess to at­tor­neys at law.

While the au­thor­i­ty goes a long way in as­sist­ing per­sons who would not have oth­er­wise been able to ap­proach the Courts or de­fend them­selves, the au­thor­i­ty still falls short.

I ap­pre­ci­ate that some per­sons are al­so of the mis­con­cep­tion that at­tor­neys at law ap­point­ed by the au­thor­i­ty is not as ex­pe­ri­enced of knowl­edge as oth­ers, that can­not be fur­ther from the truth. There are many ex­pe­ri­enced and ex­cel­lent at­tor­neys at law who are reg­is­tered with the Au­thor­i­ty and of­fer their ser­vices in an at­tempt to as­sist those who can­not af­ford pri­vate fees.

Sad­ly, the Au­thor­i­ty can fall short. The Au­thor­i­ty is gov­erned pur­suant to the Le­gal Aid and Ad­vice Act. A per­son who is seek­ing the as­sis­tance of le­gal aid, must be grant­ed a cer­tifi­cate. This cer­tifi­cate re­quires some in­ves­ti­ga­tion as the act di­rects that on­ly per­sons with­in a cer­tain in­come brack­et may qual­i­fy.

Sec­tion 23 (ii) of the act stip­u­lates that an ap­pli­cant can­not have a dis­pos­able in­come that ex­ceeds $36,000 a year. Of course, there are cer­tain is­sues which are tak­en in­to con­sid­er­a­tion such as the pay­ment of rent and var­i­ous de­duc­tions, but, $36,000 a year en­vi­sions a month­ly dis­pos­able in­come of $3,000.

In car­ry­ing out the in­ves­ti­ga­tion, con­sid­er­a­tion is al­so giv­en to­wards as­sets owned by the ap­pli­cant and the val­ue of the said as­sets.

Giv­en this, it would not be sur­pris­ing to re­alise that many per­sons who can­not af­ford le­gal fees, would still be un­able to qual­i­fy for le­gal aid.

In con­sid­er­ing le­gal fees, at­tor­neys at law do have an hourly band fee to con­sid­er, imag­ine that the most ju­nior at­tor­neys can bill from $650 to $800 per hour, now con­sid­er some­one whose dis­pos­able in­come per month is $3,000 and they hav­ing to man­age the cost of those fees. It is sim­ply not prac­ti­cal.

While I be­lieve that, there is need to amend the Act to in­crease the dis­pos­able in­come in such a man­ner as to al­low bet­ter ac­cess to le­gal aid, I al­so be­lieve that our in­ves­ti­ga­tion process should not be a one-time in­ves­ti­ga­tion, but, an on­go­ing in­ves­ti­ga­tion. In times gone by, I have seen per­sons be grant­ed a le­gal aid cer­tifi­cate whose dis­pos­able in­come far ex­ceed­ed the re­quire­ment of the Act, and, on the flip side per­sons be de­nied de­spite their gen­uine need for as­sis­tance.

I have per­son­al­ly dealt with mat­ters where le­gal aid was grant­ed to per­sons, who took no in­ter­est in their le­gal mat­ters, had to be con­stant­ly re­mind­ed of their on­go­ing mat­ter and the need for their pres­ence.

In one in­stance, le­gal aid was grant­ed to a per­son who had dif­fi­cul­ties giv­ing in­struc­tions for the fil­ing of their case as they were spend­ing more time trav­el­ling out of Trinidad, than, be­ing present in Trinidad.

I am cer­tain that ex­tent of over­seas trav­el would ex­ceed the re­quired dis­pos­able in­come. It is not that in­ves­ti­ga­tions were not be­ing car­ried out; it is a mat­ter of how dis­hon­est some ap­pli­cants can be.

In which case, I be­lieve that le­gal aid should have an on­go­ing re­view and should at­tor­neys re­port that the re­cip­i­ent of le­gal aid does not ap­pear to be in gen­uine need, cer­tifi­cate should be re­voked and a di­rec­tion giv­en for a full re­fund of ser­vices pro­vid­ed.

The un­for­tu­nate truth is that ac­cess to jus­tice comes at a cost. The cost en­sures that some per­sons ac­cess to jus­tice is swifter and far reach­ing com­pared to oth­ers.

We have seen sev­er­al per­sons chal­lenge their Pre­ven­ta­tive De­ten­tion Or­ders with some el­e­ment of suc­cess, now con­sid­er how many more per­sons are be­ing held un­der sim­i­lar or­ders and sim­ply do not have the same ac­cess to jus­tice due to their in­abil­i­ty to re­tain a le­gal team to car­ry them through a long, cost­ly bat­tle.

Pavi­t­ra Ramharack is Head of Cham­bers at Pavi­t­ra Ramharack At­tor­neys at Law and can be reached at ramharack_pavi­t­ra@out­look.com.