The Lilongwe Declaration on Accessing Legal Aid envisages a model where lawyers, who are often few and relatively expensive as service providers, are used as efficiently as possible. The Lilongwe model takes advantage of the fact that the category of cases, in which representation by a lawyer is necessary, is akin to the ‘tip’ of the iceberg of legal services. There are a number of other services, including alternative dispute resolution, advice and assistance, which can be provided by suitably trained non-lawyers, or paralegals, and which in many cases are for more effective than litigation in solving the problem. Adam Stapleton once developed the ‘legal aid triangle’ to illustrate the point. I believe diversifying legal aid in this manner is the only way to make it financially sustainable.
One of the main hurdles that has often been encountered, around the world, is the reluctance within the legal fraternity to abandon the monopoly that lawyers have on the provision of legal services. In many countries, this monopoly is entrenched in law, and the legal profession guards it jealously. In practice, of course, paralegals are seldom a serious threat to the business interests of lawyers. People who can afford to retain private counsel will always do so, regardless of how many paralegals there are. When faced with the risk of losing our liberty, none of us would spare any expense in putting up a defence. Paralegals will inevitably only serve those accused persons who otherwise would not get any service at all. Still, the mere thought of other actors entering the legal services market, albeit at the very bottom end, where few lawyers wish to go, has been enough to make bar associations resist attempts to diversify legal aid. Stapleton notes how ‘the legal establishment have viewed legal aid restrictively, as a service provided by a lawyer to someone who could not otherwise afford [that] service.’
This year, I had the opportunity to work a little bit in Asian countries with a socialist legal tradition, and one of the first things that struck me, when sitting in court, was how relatively diminished the role of the lawyer is in the criminal process. This is partly due to the inquisitorial principles upon which these systems are based, but there are also interesting historical and ideological factors.
Post revolutionary legal reform was radical, but the basic analysis was in large part logical; the legal system of the ancien régime was designed to maintain the status quo and to safeguard the interests of the ruling class. Lawyers, judges, prosecutors - the whole legal establishment was, again probably quite accurately, deemed to be part of that ruling class, and thus unfit to serve the new revolutionary state. Many lawyers emigrated, others were put through re-education and some were even killed. Another factor was the Marxist idea that, as a society progresses towards Communism, through Socialism, there would be less conflict. Crime and disputes, the very phenomena that the legal system is set up to handle, are, according to Marx, primarily an effect of class tensions in a society; tensions arising from poverty, inequality and the desire to acquire and protect private property. Thus, as the classes would wither away along the march towards Communism, so would the need for the legal system. In other words, if only sufficiently quick political progress could be made, all those lawyers would soon be superfluous anyway.
As we know, post revolutionary states eventually came to re-establish their legal systems, but it is interesting to note that for instance the Maoists in China were highly sceptical of any formal rules that might come to inhibit revolutionary transformation. They feared that laws could potentially constrain the social and economic development that they foresaw. For partly the same reasons, in the Lao People’s Democratic Republic, established in 1975, they waited until 1991 until they adopted a constitution for their new state.
With time such worries gave way to the inclination to use legal arrangements to consolidate power and the achievements of the revolutions. The law, the legal system, and the lawyers began to make a gradual comeback. This was speeded up when market oriented economic policies were adopted, and as new commercial actors demanded more certainty and clearer rules. This reform is still very much work in progress, with China and Vietnam having come quite a bit further than Laos.
And while lawyers in all three countries undoubtably have a more prominent role today than in the immediate aftermath of the revolutions, they do not have the formal monopoly on providing legal services in the way that we see in many other jurisdictions. The Criminal Procedure Law (CPL) in China, for instance, permits accused persons to entrust as defenders either lawyers, persons representing public organisations (often known as ‘mass organisations’), guardians, relatives or friends (CPL Art. 32). Non-lawyer defenders can be authorised by the People’s Court to ‘consult, make abstracts of or reproduce the indictments and technical appraisals of the case, and may meet and correspond with the suspect in custody…’ (CPL Art. 36). The procedural laws in Vietnam and Laos have similar provisions.
I am not suggesting that criminal procedures in these countries are exemplary - they are not - in fact there are very legitimate concerns around due process, which have been well documented by a number of writers, academics and activists for several decades. However, as China, Laos and Vietnam are all now in the process of either building up or reforming their legal aid systems, their criminal procedure and legal practice codes offer rather unique opportunities to set up structures through which different service providers can contribute. In short, the laws here seem to lend themselves well to the Lilongwe model. Nobody questions the importance of having highly qualified lawyers to represent persons who are accused of very serious offences, but given the relatively low crime rates in all these countries, such cases will remain just the very tip of the iceberg. For all the other cases, the last ten years of implementing the Lilongwe Declaration has proven that non-lawyers with targeted and highly practical training, can provide very effective legal aid services, at a cost that is affordable even to some of most financially constrained governments in the world.
Contributed by Marcus Baltzer