|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Journal of South Pacific Law |
THE USP COMMUNITY LEGAL CENTRE: COMBINING LEGAL EDUCATION AND LEGALISERVICES IN A DEVELOPING ISLAND COUNTRY
EDWARD R. HILL∗
Since July, 2002, the University of the South Pacific Community Legal Centre has been advising and representing clients in the Port Vila community. Each aftn during semesterssters, the Legal Centre, which occupies a small premise in downtown Port Vila, accepts clients who receive advice and representation from final year LLB students under the supervision of a member of academic staff who has been admitted to practice in Vanuatu. The centre also has a full time coordinator who is responsible for the day to day administration of the Legal Centre.
The operati the Lehe Legal Centre serves a dual purpose; it services members of a community who have little access to legal advice or to the justice system and it provides an opportunity for students to professional legal skills ills and ethics at a high level in a real practice environment. ـ
The CThe Community Legal Centre is, in many ways, not dissimilar to legal centres operated elsewhere in Commonwealth and common law countries.& Studlearn and are assessed for academic credit while hile learning practical skills and performrforming legal services in the community. The Springvale Community Legal Centre in Melbourne and the UTS Community Law and Legal Centre in Sydney are examples of legal centres based on a similar model in Australia. Other ar leentrcentres ares are located in the UK, Canada, the United States and elsewhere. Some of centocs focus on s on legal information, some on the actual representation of clientsisput160; Some focus ocus on spen specific areas of the law and some operate in a more general legal context. & More recently, in the deve developng world, programs which combine education and the provision of legal information and, or services have emerged. An exais theet Law programogram in South Africa which, in the lase last 15 years, has expanded to a 16 universities.[1] hile SP Community Legal egal Centre is broadly similar to other centres, there are significnificant differences, in respect of the coty in which the Legal Centre operates, the constraints under which it operates and what it t it does. These make the USP nommuLety Legal Centre unique in the Pacific and perhaps in the world.
This paper provides an overview of thcumst that shaped the development of the USP Community Legal Centre. It examines the the presepresent features of the Centre and thlleng faces. Taking these into account, it examiexamines snes some directions that it may take in the future. As an over this paper canoot cover iner in detail every topic relating to the Centre or to the course, Law Clinic, which is integrally linked with tntre.; Some topics such as ethics, the role of custom, and assessment are touched upon upon but but could with stand greater scrutiny.
THE SOCIAL AND LEGAL CONTEXT OF THE CENTRE
In order to understand the challenges faced by the Community Legal Centre, it is important to know something of the unique social and legal context in which it operates.
Vanuatu country wiry with significant differences from a developed country where legal clinics associated with Law Schools are common.& There are approximately 200,000 people spread over an archipelago of some 83 inhabited isld islands. One third of the population is under the age of 15 years and the growth rate is 1.66%. Thic literacy rate of thos those over the age of 15 is approximately 53%. Education is a privilegoyenjoyed by those whose parents can find a sponsor or have the money to pay for it. are threecial languagnguagnguages, English, French and Bislama as well as more than 100 local languages. The economy is basedarily on small scale and subsistence agriculture. Vanuatu has no income td iand is anis an offshore financial centre. ThelatioPort Vila timated ated to be approximately 40,000 and is growing quickly due to b to both noth natural growth and the arrival of peopom otslands, many of w of whom reside in one of squatter settlements around the urban area.  [2]p> nmentices to thto the peop people are minimal compared to developed countries.
The legal system
There are three Supreme Court judges: two ni-Vanuatu and one who is a terointmponsored by the Uthe UK govK government. There are approximately 6 magistrates, most of whom do not have a formal legal education.
The private legal profession is small, largely conservative and has no statutory autonomy. There is no professional oode of practice in Vanuatu. Ls do not carry professionssional indemnity insurance. The admisof lawyers to prao pra is governed by the Law Council exercising its powers under the Legal Practitioners Act Capt Cap 119 and the Legal Practitioners (Qualifics) Regulations No 22 of 1996. Tuncil consists ofts of thof the Chief Justice, the Attorney General and a legal practitioner who is appointed by the Minister responsible for Justice. The Law Council has power to admit and supervise legal practitioners. [3] The Regulations of egal Pral Practitioners Act provide for the hearing of complaints about lawyers and their discipline by the Law Council. er, tsciplinaryinary rulesrules are convoluted, largely unworkable and there is no provision that the finding of such a committee be made public.[4] The plinary rules have note not been utilized in recent memory and no lawyer has been disciplined by the Council.[5]
Until recently, members of the legal profession have been alexclusively expatriates fros from Australia or New Zealand. Unte establishment of the the Law School at USP in 1996 the few indigenous ni-Vanuatu lawyers received their legal training in Papua New Guinea, New Zealand or Australia. Most of these lawhave empn employment withiwithin the Public Service. Increasingly Uw graduates,ates, most of whom have completed a post graduaofessional qualifying diploma in Fiji, are entering the legal profession, in both the pubicpubic and private sphere. The of thrativa legal work work work in the commercial and banking sector which originates from the offshore financial centre continues thandl the expatriate lawyers while most of the remaining work is handled by ni-Vanuatunuatu lawy lawyers.
The Constitution provides that French law which pre-existed independence, like UK law, still forms part of the law of the Republic except where it has been repealed or is incompatible with the independent status of Vanuatu.[6] HoweFrench laws are not reot relied upon in actual practice due, in part, to the fact that there are no fully admitted francophone lawyers or lawyers trained in civw in Vanuatu.
The judicial system in Vanuatu includncludes the Supreme Court and Magistrates Court. There is a Cof Appeal whic which sits twice a year. It comprises judges of both the Supreme Court and superior courts from other countrsup>[up> is also an Island Court aurt and a Land Tribunal. However, lawyers arrs are are not permitted to appear in either cand tore these functionction largely outside the scope of the legal profession.
&#
Legel Fed Legal Aid
The Public Solicitor of V of Vanuatu is a constitutional office holder whose mandate is to provide legal assistance to “needyle Section 5(2) of the Public Solicitor’#8217;s Ac;s Act provides that the term ‘needy person’ is to be ‘interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.’ This would comprise pro 95ly 95% of the population. et the office consists osts of two lawyers, two secretaries and an Australian Youth Ambassador. The backlog extends over 10 years. Priority is given to crimcnal clientsh means that many “ne20;needy” persons with family and civil cases are unable to obtain representation. Conflict ofrest nts tblic solicitlicitor from representing two needy peopleeople on d on different sides of the same dispute. &
Legal fees foal woal work vary considerably from practice to practice, often depending on whether the practicactice is ni Vanuatu or an ex-patriate.verage hourly rates range from 2,000 vt to more than 30,0000,000vt.[8] A private lawypically char charges 20,000 vatu per hour. There are no formal-legal egal personnel employed in the public or private sector although some legal advice ien by trade unions and the Labour Office.
The legallegal system is not accessible to a large majority of the population. The of commencing a civil ivil action in Magistrates Court is 8,000 vatu. Minimum wage is 16va00 peru per month. & A person emploull time fome for a month at minimum wage could afford 48 minutes of a lawyelawyer’s time. He or she would to wor an couple of weeks to be able to afford ford fees fees for filing a claim.
Apar>Apart from the judiciary in Port Vila, ths one Supreme Court judge and a magistrate who are located at Luganville, Vanuatu’s s7;s second city, located on the island of to Santo. Judges and magies occasionasionally glly go on circuit to three or four other centres on other islands. A laroportf thef the populpopulation simply lives beyond the reach of the formal legal system, being governed by traditional chiefly rity.[9]
GETTING THERE – THE EVOLUTION OF CLINICAL LEGAL EDUCATDUCATION AION AT USP
The University of the South Pacific is owned by and serves 12 countries in the South Pacific region. USP̵ain campus is in S in Suva, Fiji. However, there are extension education centres in all countries and satellite campuses in Samoa and Vanuatu. The S of Law isted at the the Emalus Campus in Port Vila, VanuaVanuatu.
e USP School of Law iLaw is relatively small with only a doembers of academic staff. This limit number of optiooptional courses which can be offe offered at any one time. Thee approxim 200 full till till time on campus law students in Port Vila although there are several hundred taking courses by distance educa >A major focus of the Law School in recent years is the teaching of LLB courscourses byes by internet and other modes of distance education. This is stand gle, given tven the vast area that the university covers and the increasingly available technology for the delivery of such courses. This focus however, doestaot take into account learning many types of legal skills, particularly those such as interviewing, negotiation, and legal problem solving in a real life context. Given the pties e Law School, the, there hare has been no specific resources allocated to the development of a Community Legal Centre.
There rs to been no mention of clinical legal education when planning for a law degree at USat USP begP began in 1994,[10] In 1995, a senior lecturer from Sheffield Hallam University in the UK, Richard Grimes arrived on the scene for a two year appointment as Director of the newly established Institute of Justice and Applied Legal Education (IJALS) which is part of USP and is located in Suva. Richard advocthat both theh the law degree and a subsequent professional qualifying course include significant components of skills, particularly those gained in a practice setting.[11] He spear-hean initiative tive to approve an optional undergraduate course in the LLB program known as Law Clinic.[12] The e wenough tugh the nece necy levels of university approval in order to be structured ired in a way which did not require a final exam. This course was inc in t97 USP calendar where it was described as a live live clienclient course. A new position known as Liw Clinic Supervisor weated and an appointment made. However, afrom the Law Cliw Clinic course and the Law Law Clinic Supervisor being appointed, it seveears before the course conformed to its initial dial descriescription and a community legal centre was created.
The Law Clinurse wrse was offered between 1997 and 2002, but in a placement model whereby students spent time in various private and public ffices in Port Vila.[13] This arrangement was due to the barriers which prch prevented the implementation of a live client practice setting. The maarrier was an inabilnability of any professional academic member of the USP Law School stafobtain admission into practpractice in Vanuatu. Although severmbers, all wall with overseas legal practice experience attempted on a number of occasions, and although the regulations of the Legal Practitioners Act provided for admission – either coonallunconditionally olly on a dn a discretionary basis - the Law Council did not see fit to admit any member of the USP staff. ـ Working through thih this process took years. Without a qual lawyer to s to supervise students, a live client communityl centre could not operate.[14]
In 2001, the Legal Practitioners Act wast was amended to provide for the registratf lawyers on staff within thin the USP Law School.[15] The amended Act provides that “academic lawyers” at the Law School of the University of the South Pacific may apply to the Law Council to be registered as legal practitioners.&#Admission to practice in a jurisdiction other than Vanuatu uatu qualifies a member of the USP staff to become an academic lawyer. Only persons attached to or employed by the Law School as a law lecturer or a tutor of the law program at the Law School are eligible to be registered and, once registered, cannot charge fees for any work done. The amendment provides further that any application for admission as an academic lawyer must be for purposes related to transferring practical legal skills to the students. [16] Five memberstaff applied fied for and were admitted as academic lawyers in June 2002.
Although the ment ment to the Legal Practitioners Act and the possibility for members of USP staff to be admitted created the possibility of e client clinic as it was originally intended, a number of practical challenges remained.&#ed. & One factor was the effectffect that the elapsed time had on momentum and priorities within the law school. Long term plave, for severseveral years,sed on distance education and access to laws through the inhe internet. S training was included byed by various lecturers withi contf other subjects. With a small law s oool ofol of onlf only 12 academic members, the ability to provide the human resources to e a legal centre presented nted a challenge.
In the alnt me couf course loads among the academic staff of USP, the Law Clinic course has a weight equal to any other course. Althoug Law c Snic Supervipervisor is officially given responity fe incorporation oion of legf legal skills into the LLB program, the position had been largely subsumed into an ordinary lecturer posi withonsibility for teor teachinaching other courses, some of which had no particular skills component.
After the amendment of the Legal Practitioners Act, and the application for admission by members of the law school academic staff, eventelera#160;; The Vanuatu Legal Strengthening Project, a three year project of the the AustrAustralianalian Agency for International Development (AUSAID) had, in early 2002, been underway in Vanuatu for over a year. This project involarious fous forms of assistance to the Public Prosecutor, the Public Solicitor and the Attorney General. After several meetingseen ween the Law Clinic Supor and representatives of this program, funding was arrangeranged for the rental of a small downtown premises for a legal centre.ټ From the AUSAID perspective, support for the Legal Cent Centre was seen as a way to assist with the strengthening of the Office of the Public Solicitor. AUinitially sought to have have the Legal Centre incorporated physically within the Public Solicitor’s Office. Fortunately, an educationational perspective, the limited space in the Public Solicitor’s Office prevented the Legal Centre from being initially located under the same roof as the Public Solicitor.
A fundamental priority for any live client program that involves law students is to expose students to practice standards of the highest level. Ts pararly so at USP wherewhere many newly qualified graduates will return to their country ntry and assume a position of immediate auty where an experienced mentor cannot be taken for granted. ose around them whem wiem will frequently assume that they know all there is to know about practice.[17] The Public itor, due to thto the huge demand, lack of resources, and ywithout any continuing prof professional development, did not represent standards which USP students would be encouraged to aspire to0;
From the perspecrspective of AUSAID, any educational benefit of the Legal Centre for students or its use as a vehicle for legal education generally was incidental. Additionally, AUSAID required that funding be based on assumptions that money be spent on something which would eventually be self sustaining. I seen as an adjunct to thto the Public Solicitor’s Office, located in another office simply because of the inability of the Public Solicitor to physically accommodate the legal centre unhe same roof. Y60; Yet, wt AUSAID money oney it was clear that funds would not be made available in the short term to set up a legal centre. AUSAID cleexpected that what when the Public Solicitor moved into new, larger premises (another part of the Legal Strengthening Project which had been in the works for some time) the Legal Centre would move in as well. [18]
Because the community legal centre did not fit within any dedicated allotment of resources (human or financial) from the Law School and all staff positions were fully committed to other roles, it was necessary look elsewhere for a coordinator of the centre. The Australian Youta Amborsador program was already providing a Youth Ambassador to the Law School to work with legal literacy initiatives, with mooting programs and with the Law Clinic students (in placement model). The Youth Ambassador in place in 2002 became the coordinator of the Legal Centre. This ion irentlrently fill filled by another Youth Ambassador, aerienced Australian lawyer.[19]
With premises, a coordinatornator, some funding for office equipment averalntly admitted acad academicdemic lawyers who were prepared to supervise students, the major building blocks of a legal centre were fi in p With supposupport frrt from AUSAID, the USP Law School made a commitment to run the Law Clinic Course in both academic semesters rather than in only one as had previously been the case. [20]
The legal centre was officially opened on 19 July, 2002 by the Attorney General of Vanuatu, Ham Bulu. The og was attended by they the Chief Justice, the Public Solicitor and his staff, several members of the local legal profession, the Australian High Commissioner, representatives from AUSAID and sand students from USP.
UP THE LEARNING CURVE
Without any practical experience in the Vanuatu legal system, a group of 15 students and 4 part time supervisors, including the original Law Clinic Supervisor began to accept clients from the day the Centre opened its doors. The centre̵ewly createreated database, filing system, forms and rudimentary precedents all began to be put into use.
As soon as it opeted, the Legal Centre welcomed anyone who happenewalk 160; Free legal egal literacy bacy brochures on display were available for the public. Students were perd to prov providel infion oummary mary basisbasis. Howeve ordeacce accept a pt a person as a client, they they were required to present a written rel from the Public Solicitor. a pedagogdcal pcal point oint of view this created a need to distinguish between legal advice and legal information. Students quickasped the eshe essential difference and handled visitors appropriately.
There are two reasons for the Legal Centre to accept only clients on referral from the Public Solicitor. The firsttes to the structtructf theacademic year which consists of two 15 week semesters. Because the LCeal Centre ntre ntre has been custom built around a one ser course at USP, the continuity of files between semesters ters and over the Christmas holiday was a concern. There was no guar thatcoul could provide anye any resources to maintain conduct of ongoing files when the Law Clinic course is not running.  is prionally irresponssponsible to take on cases and, after 15 weeks to give the files back back to clients to represent themselves, private lawyer or wait until the Legal Centre reopens in several weeks or months. Troble bees been solved byed by forming an association with the Public Solicitor of Vanuatu. The Publlicitor gladly refy refers cases to the USP Community Cent the understanding that, if necessary, clients cats can be n be referred back during times when the Centre is closed or if it becomespropriate for students to h to handle the matter. The second refor acceptingpting only clients on referral from the Public Solicitor is, as already stated, its need for strengthening and support.
However, there is also a drawback in accepting onlynts referred from the PubliPublic Solicitor. As an adjuncthe Public Soli Solicitors Office, the Legal Centre has a conflict of interest if it represents a client where the Public Solicitor represents the other party. The gement with the P Soli Soli therefore does noes nothinothing to alleviate the problem which exists in Vanuatu when one party is represented by the Public Solicind the other party, who is entitled to the same representatentation, is practically without any recourse.[21]
The time available during a semester, the academic background of the students, thctice background of the supe supervisors and the priorities of the Public Solicitor all affected the type and amount of work that the Legal Centre undertook. &#The Public Solicitor who who was under pressure from a number of fronts expressed a preference that the Legal Centre focus on civil and family cases. Narrowin scope of work donk done by the students at the centre in this way was entirely acceptable given the steep learning curve that not only the students but also the supervisors and coordinator woe engaged in.
Ping the sthe students
Although Civil Procedure is a course at USP, it is an elective and has not been offered since 2000. The Legal Centre handles cnly civil matters. This means students begin egin learning civil procedure at a very basic level at the same time that they are representing clients. In some therefore, the Line Linic e is a course in e in applied civil procedure. Makingaking a virtue cessicessity, this also becomes a justification for focusiny of the learning skills which focus on the early stages ofes of a civil case. These include intervi, let, letter writing, compg pleadings, drafting affidaffidavits and initiating proceedings. ther skills involve lega legal research into substantive arparticularly liability and damage issues, witness managemengement, quantifying damages and some negotiation. Issues relating toence roo proof also arise aise at an early stage and the clinical experience provides a basis for this. These areas provide a mfocus of the course.
At thise in its evts evolution, the Legal Centre does noes not regularly represent people in court0; Fn educational perspectivective advocacy in court is not necessary. As0; As indicated, a very rich learning environmeists in the stage between initial interview and the close of pleadings. &#From a om a competence pece perspective, it is easier a gob if learning is focused on one stage of proceediceedings, ngs, particularly when the time frame is 15 weeks. Exceptions .me aoplicaplications sons such as an ex parte application for a domestic violence protection order move from initial interview w a maof hours or days. These all withen the compecompetence of students ants and sevd several have enjoyed success in representing clients in respect of these orders. As more files mature and as the Centre becomes more experienced with other aspects of practice, further court applications can be anticipated.
xposiudentsdents to a to a law practice and expecting to lend at the same time time prme provide a professional service to the public through legal representation within 15 weeks makes it nece to &;front load”#8221; the; the course with instruction. Befor student begins work work with real clients or files, it is mandatory that the student attend and participate in 4 intensive training sessions. These proa basdc understanrstanding e work of a lawyer and prov provide some assurance that students will recognize the essentials of legal ethics and professional practefore start work.[22]The Law CliniClinic stuc students are divided into 5 “firms” of 3 students each. Each firm is assigned to be on duty at the Legal Centre one afternoon of the week. Supors auperviservise on a on a specific day. The only two peopleewhosporesponsibilities cut across all of the firms are the Law Clinic Supervisor who inate course and directs the Centre, and the Legal Cenl Centre Ctre Coordinator. From a client’s perspective there is a firm of 3 students who are available only on one day of the week. Clients see oembers of thaf that firm. ; Alt some rals rals and cond communications on behalf of clients pass from firm firm to firm during the week, essentially firms operate largely as discretities parafashionshion. Within firms, stu are enre enre encouracouraged to allocate work among themselves and to cooperate as a team. ifferent supervisors taks take slightly different approaches to the ways that they guide students as they proceed with the condu a file.
The Law Clinics (tss (that is all 5 firms) meets together once a weea week for a two hour on-campus session. & This session is flexible ible in its content and serves a number of purposes. Generally howeve is an oppn opportunity to experiences and learning. There is e need to use hype hypothetical examples to illusillustrate ethical issues, procedures or sntive issues. The work of the firms g eang each week week provides more than sufficient points for discussion. As the semester moveng, thg, these sessions revisit cases specific issues in cases for progress reports. Students omake presentatiotations as – outlining for the rest of the class various issues that they are dealing with.. Fck frher firmsfirms iscitiscited. Sts are keen to share the the experiences of s of their files and to learn of what other firms are doing. Guided e couoordi, thicussscussion often becomes a fruitfruitful pful problem solving session, integrates thes the work of the various firms and gives student an overall perspective on the work of the Centre. In mays, these sessioessioessions resemble some actual law partnerships where, at the end of the day partners and associates gather in a collegial atmosphere to discuss cases. In orderaximie experience,ence, it , it is best for the coordinator to resist the urge to control the exact content of each weekly session.
Assnt of students is based on a journal, participation at the weekly sessions, partiparticipatcipation at the Legal Centre, and the production of a legal literacy brochure (discussed below). Assnt is an issue which isch is especially challenging without any final exam and where each student learns from a different experiential base.
Adjusti Practicactice
orking relationship with thth the Public Solicitor has been cordial with few complications in the referral of clients. Clients eferr the Legal Ceal Centre on a daily basis – initianitially at a rate of 2 per day. Intake iusted for each firh firm frek to week in accordance with it’s capacity. Quality of is always stys stys stressed over quantity. Theer of potentialntlies m is more than the Legal Centre can dcan deal with. Desthe ssemestemester, onl, only a few files haen red bacthe Public Slic Solicitor at the end of semesters. Files are either closed or aror are able able to be maintained by staff and the cnatorng semester breakbreaks.s.
For supervisors perhaps more than students, it has taken some adjustment to “Pacific tim21;, entality that things will happen sometime but dont don̵’t need to be hurried. This mentality permeates the legal and judicial system. It takes more than expectepected for letters to be answered, phone calls to be returned and meetings to be arranged. Dealing with these exigenpies presents a learning challenge to students who have had to be encouraged not to simply “go with the flow” which could result in next to no progress on a file in a 15 week semester, but to move the file along and think of ways to deal with communication problems. In this way, the file management of the Legal Centre is at variance with its environment. Students resp wded well toll to the challenge to be pro-active in case management.
Many clients haveono postal address and no telephone. Most of the streets in Port Vila have no names. Some clienve in villages iges in remolands. They make a trip to Port Vila and then return or have a relative come to seek seek representation on their behalf.[sup> The difficulty in locating and communicating witg with clients is a challenge that most lawyers in more developed countries do not have to deal with. Af#8220ng touchtouch”#8221; with several clients early in the operation of the Legal Centre, some elaborate ways of maintaining contact with clients have been developed. Fortunately, many clienrn turn up each week to inquire about their files in any event.
Language presents a challenge to the effective operation of the Legal Centre.  lingua franca of Vanuatu is Bislama, a type of pidgin Engl English. Spoken quickly, it sounds to an English speaker like a comly foreign language. &160; The n lan uage among staffstaff and students at the Legal Centre is English. a minority of clients arenfluent in English. Only a my arity of studentudents (those from Vanuatu - mostly ni-Vanuatu and Solomon Islandsents)fluenBislama. Dealing with the language gap has been a challenge.  The studestudents whts who speak fluent Bislama are distributed among the firms so that each firm has at least one student who is fluent.[25] remaists andrvisdrvisoe able able able to spto speak some Bislama.[26]
The situation is different with written communications. Iniretaigreemand informatirmation are available in Englisnglish andh and Bislama. However, all other written communications are in Engl#160; This is necessary even in cases where the client, student advisor and the client spea speak Bislama as it is necessary for a susor to approve all correspondence. Corresponding in E in English is consistent with the practice of the Public Solicitor and seems to present relatively few problems to clients who are either able to read English or have someone who can translate it for t#160; In most cases wses where eritten advice is being given or instructions are being taken, written communications are backed up by oral confirmation in any event. The Legal Centre is unab o to offer services in French (apart from legal literacy brochures). On the other hand, no-onehhas had to be turned away because of this.
The “foreign” face of the LCentre has, for the most past part, not affected relationships with clients. Clients seem to be pleao b to be represented at all and nobody has resisted being interviewed or advised by a law student who is not from Vanuatu. How this is not universalersale case when it comes to parties opposed to the Centre’#8217;s clients. In one contested case ovne ownership of land, the popposed to the Legal Centre’s clients challenged the the Legal Centre’s legitimacy in being involved in the matter at al60; The opposing party wrote scathing attacks on the the legitimacy of foreign students and foreign supervisor to be involved in the dispute in any way. Repewritten and oral commucommunications focused on this issue. rtunately it did not apot appear to affect progress with the case. However, it is something that the Legal Centre can expect to encounter occasionalarticularly in relation to issues which relate in some way way to custom, as many land disputes do. Presy private ex-patrlawyelawyeuld encounter ther the same same phenomenon occasionally.
Ttroduced legal system in Vanuatu is not as universally appl applied or as taken for granted as is the case in developed countries.҈ Customary law retains ains a large role and, in some ways conflicts with the introduced legal system. This is despiteral Constitnstitutional provisions which, on their face create a contrary impression. Among them iscle 51 of thef the Contion provides:
Parliament may provide for the manner of the ascertainment of r of relevaelevant roles of custom, and may in particprovide for persons knowledgeable in custom to sit with theh the judges of the Supreme Court of the Court of Appeal and take part in its proceedings.
However, this does not happen in practice. The Constitution prooides ides for a National Council of Chiefs but this council is given only consultative duties and does not have any legal powers.[27] Howealthoheir rity is not not part of the legal system, tem, the dehe decisions of Chiefs carry considerable weight; sometimes more weight thcisions of the courts. People anerally slow to igto ignore the decision of a Chief.&#ef. work e Legal Cenl Centre rere repeatedly touches on the conflict between the introduced legal system (within which the students exclusively work) and customary ices uthority. This presents interespractpracticactical anal and ethical problems.
One prevailing custom in Vanuatu is that of bride price. When a woman isied in cust custom (which often occurs along with a legal marriage), tributes in the form of traditional goods and more recently in the form of cash are paid to the family of the bride. fs asauthority iity in conn connection with setting bride price and in dealing disputes relating to them. Where an agreement is made for the marriage of an, anement about bride price is made. Thee ride is nois not a pa a party to the agreement. She is the coration. #160; Fro perspective oflege legal profession, an agreement about brut bride price is not legally enforceable. However,ractice these oblo oblons aken seriously and, when a couple separates, the hthe husband or the husband’s family mily usually seeks a return of bride price0; Many such disputes find their way to the door of the Lege Legal Centre. It is difficulexplain to a to a claimant in such a dispute that although an obligation to return part or all of a bride price is widely recognized, the Legal Centre cannot rent hi60; Such a client is usually referred to thto the e “Chief” to deal with the problem.
Similarly, in theecontext of child custody disputes, custom is an important part factor. Custom within the counttenoften dictates that uponrriage break-up, a child will go with one or other of the parents. Ang clients cnts concerninerning custody involves assessing xtent to which this factor is important in assessing a chil child’s best interests or the extent to which it can be weighed in tition to a child’s b7;s best interests. Family legislati not helpfhelpful. Precedents at plentiful.&#ul. Notionst rigo a to a childchild feature also as justification in cases where a parent or a parent’s relatives abscond w chilanothland. Often Chiefs are the best resortesort in dealing with these types of dispudisputes.&tes.  >
Another practice tice demonstrates how custom and modern lifestyles can mix and result in unique legal problems. In customldren are sometimmetimes gio other members of a family who have no children or have nove no children of a particular sex. ne suse, a womanwoman de fade facto relationship gave her baby son to a niece. T60; The niece entereommonommon law relationship. Thded with theeRde fact facto husband taking the child to his island.&and. #160; The birth mothught thht the return of the child. The matter was finaortedby the Chiefs in s in combination with correspondence from from the legal centre on behalf of the mother.
Not uncommonlefs order a separated womanwoman to return to her husband, even in the face of abusive treatment. Thal Centre has been
inv iinv in such cases on behalf of the woman. In one case, the woman unhappily complied with with the Chief’s order with
the husand instructed the student advisors to stop working on her her case despite being advised that the Chief had no legal authority
to much an order. T60; There ethical dilemmilemma in this as long as the woman is advised of her legal rights. However, what
aboe case ofse of a man who is told that he has no legal rights to force his wife to return but that he might consider going to thefs,
knowing that this might result in an order that the woman return to an abusive relationationship? Does this entail an ethicsl issue
for a lawyer? /p>
Many times the only referral is the Chiefs. They anetwork largely invi invisible to the legal system. They have dped some disputispute resolution systems within Port Vila and traditionally have done so throughout the country.  efs cly maders whrs whrs which, on their face are unconstitutional. A exais an order rder bannibanning someone from Port Vila and org the person to return to his or her island. Sometimes, kidnapping arceforced travel avel are used to enforce these orders.other example is where a Ch a Chief orders a woman to return, against her will, to her husband. The ral of a dispute to thto thefs may be effective from trom the perspective of a client but at the same time raise ethical issues for a lawyer.
Ths a prevalence of deff defamation claims, often about bout accusations of witchcraft or adultery. Despiteck of author, cliofclioftenoach the Legal Centre with a fixed idea of what their case is worth in h in termsterms of c of compensation. Student adviare red ir diso disabuse the client of the fixed notion andn and explain risks and uncertainties. Assessineral damages in tuin tu isallenging proposition. There are no domestic reference sources and few local prec precedentedents. Gl damages in Magistraturtaturt which has a monetary limit of 1,000,000 vatu (approximaoximately A$15,000) is a particularly difficult task. Assessinages es as difficufficult as it would be if every case was was to be held before a jury which was invited to assess damages “age
Although most cases involve disputes of one sort or another, some some involinvolve only advice. In one case, a studevisor isor spent a significant amount of time during the semester attempting to definitively advise a client about the right to ried at sea in Vanuatu. Althougs case might be trie trivial in many people’s mi;s minds, it provided a rich learning experience for the student, not in terms of the ultimate answer (yes, it is legal to be buried at sea in Vanuatu) but in terms of working through the various government departments (Environment, Health, Fisheries), none of whom had a definitive answer.
Cot of courtcourt does does not necessarily have the same deterrence or consequences as it has in some more developed jurisdis.҈ Where, in Australia and other established countries, a finding of contempt fmpt for deor deliberately failing to abide by an injunction could be expected to have immediate and dramatic consequences, circumstances in Vanuatu are different. In Va, oneot auot automatiomatically assume that the threat of contempt is likely to have a deterrent effect or that the judicial sysill rvigorously in response to contempt. This affects the tactics of dispute mane managemeagement and client advice.
Legteracy initiinitiative
lthough at presentesent they are largely co-extensive, it is important to distinguish aw Clcourse from the Cthe Community Legal Centre. The course uses the LegntrCentre as a ve a vehicle for learning, but not entirely so. & The course has other aspe aspects, not directly associated with the Legal Centre. Each studenthe course is r is requto enin a legal literaiteracy initiative which involves writing and producing a brochure. 160; Each of thchures deal deals with one topic of broad relevance or interest in the community.. This obion operates in parn parallel with the other work that studare involved with although some of the topics of some brochbrochures coincide with cases which are being handled by their authors.҈ This component of the the course is given 25% of the overall assessed value.Give very low leve level of legal literacy and the limited access which ordinary people have to the justice system, the production of brochures serves a useful comm function. The demand for brochis gres great and is l is limited by resources. The topics of tochures ares are broader than the types of cases which the Legal Centre handles and include such topics as rights of prisoners, right to vote, freedom of religi well as topics which concern the types of cases which stud students handle such as custody rights, maintenance, how to make a claim in Magistrates Court etc. are presently over 40 bro0 brochures available to the public.[29]
The produ of brochbrochures requires students to identify a topic, devise a series of questions about the topic, identify an audience anduce text without legalese.  is something of a chal challenge for some students to s to resist the temptation to write in an essay format – some first drafts of brochures contain long descriptive sentence and even footnotes. Brochures are formatted and edited at USP and are produced using technology supplied by AUSAID as part of the Vanuatu Legal Strengthening project. Brochures are availablelable from the Legal Centre, from the Public Solicitors office and from various NGO’s in Port Vilabeyond. A recent initiatis bhan toen to place selected brochures in nakamals whls which are meeting places for conversation, and the consumption of kava, a mildly intoxicating drink widely consumed in the early evening by a large proportion of ni-Vanuatu, particularly men. Brochdisapfrom from the sehe selected nakamals as fast as they are placed there.
FUTURE DIRECT/bNS
The USP is on a solid footing after a year of operation. During the two semesthat that the Legal Centre hen dealing with these and
other issues, it has advised 163 clients and opened 89 files.
Feyers are skre skilled at negotiation and some fail to appreciate the benefits of settlement. Cuentle cases tses than aran are necessary go to trial in Vanuatu.[31] ـIn uture, it is hope hoped thad that more emphasis can be placed on the skills of negotiation. This isthing coat could usld usefully be commenced in a simulated setting. & Beyond negotiation, therethere is the possibility of alternative dispute resolution, culardiation. The civil procedure course at USP USP is cais called civil procedure and dispute resolution. When next taught, a segment could be devoted to activities at the Legal Centre. Law C stud due due to theo the conflict it would create cannot themselves as neutrals for the purpose of acting as a mediator. Thes of civil pvil proceduocedure in Vanuatu have recenten red with new rules.ules.  These new rulace consideraiderable emphasis on the referral of disputes from the courts to mediatio60;&#Unfortunately, thy, there iere is, at present a lack of people who can perform such services. egal e, or an a an associasociated centre could help fill this vacuum as part of training students.
As long as the Legal Ceal Centre retains a link wit Publlicitor and accepts only referrals from that offi office, tce, the Centre has a conflict in acting against any client represented by ublic Solicitor.   It ssiblt that in the futu future, when the Legal Centre is able to ensure that its doors are open all year and therefore does not require a “safety net” to accept referrals when the Centre closes, that it can be made a fully autonomous practice. In ast some cases, this wois would provide a way of providing representation to an opponent of a party who is represented by the Public Solicitor. This couldccomplished with without moving premises again due to the physical separation and lockable doors between the Public Solicitor’s Office and the Legal Centre.
At present, thel Cenperenperates in an admn administinistrative limbo. Is it not part of the c Soic Solicitor although it is affiliated with it. Is not takers from AUSAID SAID although it receives funding ding from it, and there is no direction from the USP hierarchy of authorit60;&#Considerable lati latitude has been given by the School of Law. The creation anon and operation of the USP Legal Centre has been an exercise in adapting to what is possible. It is notresult of top dowp down planning. s the LCentrso bound up d up with the Law Clinic course, the Law CLaw Cliniclinic Supervisor wears another hat as Director of the Centre. The la formnagemtructure hure hase has allowed for fast and flexible decisiecision making. However, as it matunes ake takes on more rolesore formal management structure is probably warranted.
It isible fble fore for the Legal Centre to act as more thvehicr the Law Clinic Course. During June 2003,2003, it , it accepted a student on placement from the Professional Diploma in Praccourse in Fiji duji during ring the month of June 2003. This is the montheen semessemesters at the Law School and therefore the acceptance of this student does not entail any capacity problems. nly d provide aide a high high quality practice experience he student but also provideovided the legal centre with practice capacity at a time when no student advisors were available. Thrm ofrgy s be avae availavailablilable in future years.
Much has written aten about South Pacific law and legal systems incl the role of custom. The work e Comyunity LegalLegal Centre provides a useful wful window into the world where law, custo lifestyles of ordinary peoy people in the Pacific intersect. Therefew sindowindows.. Few prilawyeve have the tihe time or interest to study files and legal problems other than as a wholly expedient way of solving a client’s legal proble60; Tntre fore provideovides a source of information which, when when expr expressed anonymously may be useful for academics and policy makers.
CONCLUSIONS
The majority of students are sponsored by various donor agencies or by their home government. The overwhelming majority of them will find a career practising law in some capacity. is avant factoractor in coin considering the value of a community legal centre at USP. This iecial givo given then the relative lack of experience the enous legal profession in the countries of the Sohe South Puth Pacific. Mraduates, sometimes withowithout any practical legal tng oressional qualificlificationations, return to positions of considerable responsibility such as Public Solicitor or Public Prosecutor iir home country.   The undedatandably often uten unable to cope with the demands of such a position and, assuming they retain the position, tend to provide poor mentoring for those who follow them into practice. The moactical training thag that can be acquired before entering practice, the less this will be a problem. This, when considered in nonjunction with the benefithe Public Solicitor and the public of Vanuatu which occursccurs in conjunction with the students’ learning supports a conclusiat the money injected into the Legal Centre by AUSAID reprerepresents an effective use of development funds, not just for Vanuatu but across the Pacific.
udent course evaluatiluation forms for the Law Clinic course are overwhelmingly positive. The c has been oversubscribscribed since the opening of the Legal Centre. It is doubtful that ehe C wtre will be understaby students due to lack of interest.  is hoped that superviservisors will retain tain the interest and commitment to continuvoluntheir time. The Legal Centre has nothtoughtought publ publicity nor does it solicit clients. There re than enough work work to do in accepting referrals of civil and family cases from the Public Solicitor. Despite this, the USmunityunity Legal Centre ising recognition within Vanuatu as a useful means of blendinending community service and legal education.
[*] Law Clinic Supervisor, USP Law School, Dir, USmunity Legal Centre. The authord like to thank hank his colleagues who have have volu volunteered time to supervise at the Legal Centre and the Government of Australia for its support.
up>[1] ‘L216;Launched in 1986, Street Law has spread throughout South Africa has grown into a prominent human rights and legal education programme for all South Africans, primarilyyouth. Designed to introducroduce the law and human rights to people of all levels of education, it provides a practical understanding of the law, the legal system and the constitution to all learners.’ www.csls.org.za/slintro.html (Accessed June 2004).[2] Despite widespread evidence and pracie findings by the Ombudsman of corruption, there has nevs never been a prosecution pursuant to an Ombudsman report.
[3] Section 5(1). [4] Most peot people would probably require a lawyer to assist them through the process. It might be difficult to find such a lawyer in a close knit private bar. Also, the cinvolved would ould increase the risks and reduce the overall efficacy of the process.
sup> A revieweview of the Legal Practitioners Act
[6] Art 95 (2) Constitution. [7] Papua New Guinea, Fiji, Australia and New Zealand. [8] ust Australian dollar is equal to approximately 70 vatu. [9] For a discussion of the fiction involved in characterizing Vanuatu as a country under the authority of a central government see William
L. Rodman, ‘The Law of the State and the State of the Law in Vanuatu’ in V.S. Lockwood et al (eds) Contemporary Pacific Societies: Studies in Development and Change (1993). [10] Guy Powles, ‘Developments in Legal Education and Training in a Diverse Pacific; Criteria for Admission to Practice’,
Paper presented for the PILOM Conference, Apia, October 1994. /11]
[12] Richard Grimes, ‘Culture, Custom and the Clinic’ Monash University Law Review (1998) Vol 24, No 1, 1998 p 38. This article, ive in its eits enthusiasm creates could easily create in a reader’s mind the impression that the course operated in a live client practice as early as 1996.
[13]Legacation Review Vol. 11 No. 2, p 253.
[14] Section 12 of the Legal egal Practitioners Act [Cap 119] provides for a potential fine of 40,000 vatu or imprisonment for up to 2 years for the offence of practising law without a license. It is a matter of speculation what the real reason for the delay in admission was.
[15] Lega>Legal Practitioners Amendment Act no 18 of 2001.
[16] There was no official policy discussion relating to this amendmnd no member of the USP Law School was aware of the bill unll until the day before it went to Parliament where it was passed without a significant amount of debate. Ostensibly the amendment eas seen as a way to allow lawyers at USP to fulfill a community need for legal services. real a may be sebe seen morn more as a way of preventing competition by a number of hicompelawyers with the the locallocal private practitioners.
[17] A recent Public Prosecutor in Vanuatu was appointed straight from law school without even any professional qualifying course. He was given responsibility for all criminal prosecutions in the country.
[18] The existing office of the Public Solicitor was located in a very cramped and uncomfortabfice in downtown Port Vila.  moved in June 20ne 200e 2003 to a large colonial house overlooking the harbour. The house has been completely renovated at AUSAID expense to provide suitable space to the Public Solicitor. &#
[19] Aup> An application for admission as an academic lawyer is pending for the Youth Ambassador who may, if admitted, assume some supervisioies in addition to coordinating the Centre.
[2up>[20] The Canada Fund, a small grant scheme for the Pacific administered by the Canadian High Commission in Canberra, also became a source of money for books, photocopier and the cost of translation of legal literacy brochures into French.
[22] The sessions are: introduction to the course, legal ethics and professional responsibility, introduction to the legal centre procedures, and interviewing skills.
[23]Lawyers’ Responsibility ccounity.
<25]
[26] Bislama is a language that is enough to English that with patience and care, it is possible for an English and Bislama sama speaker to communicate to some extent. This together with the faat that most Bislama speakers are fluent to some degree in English minimizes the challenge. [27] Chapterapter 5 of the Constitution, Articles 29 to 32.
[28] The UTS Community Law and Legal Rch Centre Referral Manual lists 325 different community and government agencies to which clch clients with specific problems can be referred.
[29]> There iere is a limit to the number of topics which are relevant to a broad number of people. The brochure component of the course may be replaced by another assessable activity for the foreseeable future.
/sup> As of J of June 27, 2003
[31] This statement is based upon conversations with members of the judiciary, and public and private lawyers in Port Vila.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/journals/JSPL/2004/9.html