The Legal Aid Bureau has blamed the justice system’s failure to allow paralegals to represent clients in magistrate’s courts for worsening the backlog of cases in the country’s courts.
In its position paper presented to the Legal Affairs Committee of Parliament, the bureau wonders why paralegals in other State agencies are allowed to appear in court yet those from the bureau are not allowed to do so.
A paralegal loosely refers to those with a certificate or diploma in law, and in some cases, degree holders who are not admitted to the bar.
Legal Aid Bureau director Masauko Chamkakala confirmed in an interview making the presentation before the parliamentary committee at a meeting attended by the Malawi Institute of Legal Education, the Judiciary and the Malawi Law Society leadership.
He said allowing their legal aid assistants a right of representation in magistrate’s courts is in the best interest of justice.
Said Chamkakala: “It will not only ease pressure on our lawyers, but also enhance citizens’ access to justice.”
The Legal Af fairs Committee has since asked
the Malawi Institute of Legal Education and the Malawi Law Society to look at the proposal and provide a report within 30 days from last week.
The Legal Aid Bureau has 35 paralegals, known as Legal Aid assistants, who support 25 lawyers.
The 35 are not allowed to represent clients–a situation they describe as unfair, especially because the Malawi Police Service, office of the Director of Public Prosecution (DPP) and the Anti-Corruption Bureau (ACB) have paralegals with limited right of audience.
The Legal Aid Bureau argues that the Judiciary, too, has paralegals working as magistrates; hence, it is not justifiable to deny their legal assistants a right of audience when they possess almost the same and, in some cases, better qualifications than those in other State agencies who are allowed to appear before certain courts.
Reads part of the presentation: “Paralegals in the office of the DPP appear in all classes of magistrate’s courts to offer legal representation and the police have 419 prosecutors, who only attend police training, yet appear in all classes of magistrate’s courts to offer legal representation on behalf of the State.
“Furthermore, there are 135 lay magistrates presiding over both criminal and civil matters under the Judiciary.”
In contrast, the bureau argues, Legal Aid assistants are not allowed to undertake legal representation at all even in scenarios where the case is being prosecuted by a lay police prosecutor and being presided over by a lay magistrate.
“In practice, it means that the 25 Legal Aid advocates with the bureau will have to attend to prosecutions by 20 State advocates, 419 police prosecutors, and five prosecutors at ACB. At the moment, the Legal Aid advocates have to share amongst them 16 000 cases, both civil and criminal,” reads part of the presentation to Legal Affairs Committee.
But in a telephone interview yesterday, Malawi Institute of Legal Education director Bruno Kalemba
said the concern about Legal Aid assistants having no right of audience arises because of quality control measures based on the limited training they receive.
He said in the case of the Judiciary, decisions of magistrates are subjected to the High Court review and confirmation as a safeguard.
Said Kalemba: “Since paralegals are not lawyers, we need strong safeguards so that we do not give the public a raw deal. For legal practitioners, there are several safeguards. If one makes a mistake, they can be disbarred and this helps in terms of discipline.”
Asked why other paralegals are allowed to appear before court, Kalemba said paralegals from the police, office of the DPP and ACB work in an environment with built-in safeguards since they are working on behalf of the State.
But Chamkakala, in written response, said the most important safeguards are the presiding officers themselves who moderate proceedings.
He said: “All we are seeking is limited right of audience. The magistrate has the duty to ensure that all proceedings are done professionally. The so-called safeguard is only in limited cases, which can well be argued that if a Legal Aid assistant makes a mistake, we can cure it by appealing.”
The Legal Aid Bureau’s presentation speculates that the reason behind the resistance to have their paralegals represent clients in court is that this will ‘eat’ into the market for lawyers.
But the bureau argues that this is an unfounded fear because the paralegals have limited jurisdiction; hence, cannot compete with or replace lawyers.
Malawi has about 500 practising lawyers and due to poverty levels, not many citizens can afford a commercial lawyer for representation. The Legal Aid Bureau, therefore, provides free services to ensure poor citizens have access to justice.