List of Tables
Chapter 4: Community–based Paralegals
4.5.1 Potential problems in utilising community-based paralegals
This section discusses the potential problems in utilising CBPs as listed in Table 4-1.
4.5.1.1 Second class justice
Walsh (2010:19) notes that practising lawyers and bar associations have often resisted proposals that justice institutions make use of paralegals to close the gaps in service delivery on the grounds that paralegals would either compete with lawyers or lower the standard of the services that qualified lawyers provide. Robb- Jackson (2012:12) explains that, the reason why paralegals are said to offer second-class justice is that they receive limited training and do not fully comprehend the law. The argument that paralegals condemn the poor to “second-class” legal services does not hold; according to Golub (2000:303), “the real choice is often not between second-class help by paralegals and first-class help by lawyers, but between paralegal assistance or no assistance at all. Even where lawyers are available, paralegals can sometimes be equally competent”.
Wojkowska (2006:14) notes, that “there are fears that acceptance of informal systems poses the risk of the institutionalisation of low quality justice for the poor”. Cappelletti (1992:35) argues that the adjudicators involved in alternative justice systems lack the guarantees of independence that are typical of professional judges, and hence they might be subject to more pressure and interference, especially when there is a marked socio-economic power difference between the parties. Cappelletti (1992:35) acknowledges that people will continue to search for alternative forms of justice if their needs are not met: “The search for alternatives, has represented a fundamental part of what I happened to call the ‘third wave’ in the access-to-justice movement”. The author cautions that alternative systems could end up providing ‘second-class justice’.
However, Cappelleti maintains that the access to justice movement has found that there are valid reasons for proceeding in this ‘third wave’ direction. There are situations in which, far from producing a second-class result, these alternative approaches produce results, which, even qualitatively, are better than ordinary adjudication.
4-116 4.5.1.2 Cheap alternatives to justice
According to Ptacek (2010:7-8), scepticism exists about whether offenders can truly be held accountable in informal restorative justice practices. The danger here is cheap justice, meaning that these processes could be too easy on offenders – or too easy to manipulate – and thus be both ineffective and unjust. Nancarrow (2003:16) argues that the “cheap justice problem refers to the tendency in restorative justice practice such as mediation to over-emphasise the value of an offender apology”. To Nancarrow (2003:16) this creates two kinds of cheap justice problems “(1) an overemphasis on offender rehabilitation at the expense of moral solidarity with the victim, and (2) a sincere apology or reconciliation may neglect the victim’s primary needs”.
4.5.1.3 Lack of guarantee of independence
As noted earlier, Cappelletti (1992:35) reasons that the problem with alternative justice systems is that those that are involved lack the guarantee of independence that is typical of professional judges; hence they might be subject to pressures and interference, especially when there are marked socio-economic power differences between the parties. However, CBPs do not charge fees and are not contracted to promote the interests of a particular client; they take a broader view of a case, consider both sides of a dispute and pursue a result that is generally free from bias and favour (The Community-based Paralegals: Practitioners Guide, 2010:13)
4.5.1.4 Lack of regulated quality control
Robb-Jackson (2012:12) points out that, paralegals are said to lack proper oversight because they are not governed by any regulations. Similarly Dugard and Drage (2013:33) explain that the overarching problem in the CBP sector is the unclear regulatory environment within which CAOs operate; however, this can also give them an advantage by allowing a large number of unique, locally specific and dynamic CAOs to emerge. The downside is that there is no comprehensive quality control and assurance, “meaning that communities are vulnerable to fly by night CAOs”. To address this problem, Robb-Jackson (2012:23) suggests that paralegal programmes be recognised and that they should collaborate with formal justice actors on an on-going basis. Dugard and Drage (2013:33) note that there are both supporters and opponents of formal regulation among CAOs and umbrella organisations such as the CCJD and CLRDC that support the work of paralegals. Opposition to regulation is based on the fear that it might lead to an over-restrictive definition of paralegal work. Some CAOs support recognition due to its funding implications. As noted in Chapter 1, NADCAO has provided leadership in lobbying for the inclusion of paralegals in the Legal
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Practice Bill (LPB). Since this was not successful, Dugard and Drage (2013:34) suggest that “another regulatory option would be to formally draw CBPs into LASA structures; this could enhance sustainability and professionalism within the CDP sector”.
4.5.1.5 Divert pressure to improve training of lawyers
Noone (1991:34) explains that an argument advanced against the use of paralegals is that it may divert pressure being applied to improve the training of lawyers. Lawyers should be trained to provide the positive aspects of legal service delivery attributed to paralegals. Noone (1991:34) maintains that if lawyers were trained “in communication skills and cultural, race, gender, and class issues, and provided services that are accessible to those that are geographically and culturally isolated”, paralegals’ services may not be needed.
However, the author recognises that this is not something that will happen overnight, arguing that, “until then paralegals can form an important role in making links between the individuals and the legal system” (p.
34). Simultaneously, Robb-Jackson (2013:23) points out that a potential risk of paralegal programmes “is that they may reduce the responsibility of the state to make formal justice processes more accessible”.
In contrast, Cappelletti (1992:35) states that, “presently it is common knowledge that the lawyer based approach presents serious shortcomings, the shortcoming to this approach is in fact that quite often the legal problems of the poor present special features of which a lawyer might have no experience at all”.
Cappelletti adds that not even a very rich country would be willing and able to establish a large organisation of lawyers paid from the public purse to meet the legal demands of the poor (p. 35). Maru (2006a: 13) notes that in “Sierra Leone’s dualist structure, lawyers are barred from practicing in customary courts, yet these are the institutions of most practical relevance to the majority of people; even if there were to be an abundance of lawyers, they would not be able to provide much-needed legal assistance”. According to Maru, it is for this reason that the CBP programme is able to deliver basic justice services at chiefdom level which a lawyer would not be able to do; this makes the programme more attractive through applying the rigour of legal practice to the wide range of justice problems that communities face. Kahn-Fogel (2012: 725) argues that
“increasing the number of lawyers would not, in and of itself”, ensure the availability of legal services to the average person. Franco, et al (2014:31) submit that, given the non-likelihood “that the number of public interest lawyers will increase substantially in the future, the need for paralegals to reach out to the poorest of the poor will continue”.
4-118 4.5.1.6 Unequal power relations
Wojkowska (2006:20) argues that the traditional justice system does not work in resolving disputes between parties with very different levels of power and authority. “Unequal power relations and susceptibility to elite capture may reinforce existing power hierarchies and social structures at the expense of disadvantaged groups” (Wojkowska, 2006:22). Stubbs (2010:92) notes that “critiques of restorative justice as a response to domestic violence observe that there are unequal power relationships between victims and perpetrators of domestic violence and that the offender has the capacity to exert power over a victim and the process itself.