South China Morning Post | 2012-10-09
A15| Insights| By Dennis Kwok
Poor being let down by lack of access to court services
【Dennis Kwok Says an independent legal aid authority is long overdue】
Justice cannot be upheld if citizens do not have access to it. That is why free and equal access to the courts has always been a key element of the rule of law. That is also why the Basic Law specifically guarantees Hong Kong residents the right to legal advice and access to courts.
Legal aid is a service that the modern state owes to its citizens who cannot afford private legal services. After all, the state is responsible for the administration of the legal system.
The current provision of legal aid services is administered, not by an independent legal aid authority, but by the Legal Aid Department under the Home Affairs Bureau.
Difficulties arise in situations of direct conflict of interests. Twenty years ago, the Legislative Council heard a debate over whether the decision not to renew the contract of the then director of legal aid was because he granted legal aid to the Vietnamese boatpeople challenging the government over their right to remain in Hong Kong. The problem is only exacerbated by the increase in the number of judicial reviews in recent years. Many of these cases are controversial and involve challenges to major government policies and decisions.
The conflict issue is not just a theoretical one either. Evidence shows that the Legal Aid Department has not fared well under the Home Affairs Bureau.
Whereas the Legal Aid Department and Department of Justice had comparable budgets of around HK$500-HK$600 million per year in the 20 years before 1997, the Legal Aid Department’s budget has been effectively static since, hovering around the HK$700-HK$800 million per year mark, while the Department of Justice’s has more than doubled, to over HK$1.3 billion per year.
Both the Law Society and the Bar Association report that the Legal Aid Department has become more bureaucratic and less “customer friendly” in recent years.
Clients complain that legal aid officials now seem more interested in administrative compliance than in the department’s mission of assisting those in need.
Combined with miserably low financial eligibility limits that have not even kept up with inflation, the decline in legal aid has resulted in the unacceptably high number of unrepresented litigants in local courts. Currently, more than a third of all civil cases have unrepresented litigants.
This has a negative impact on the proper administration of justice in Hong Kong, creating a huge burden on judicial resources.
When the Legal Aid Service Council was first established in 1996 to oversee the Legal Aid Department, it was seen as an interim measure. Experience shows that the council does not have enough resources and the necessary statutory power to act effectively.
It cannot manage the Legal Aid Department properly and adequately without any legally trained or independent research staff of its own. The Legal Aid Department is supposed to look to the council for policy leadership but that is, in reality, impossible when the Home Affairs Bureau is calling the shots.
With attitudes of complacency and inertia prevailing in the bureau and no one in the Legal Aid Department tasked to look into reform and improve services, it is hardly a surprise that the legal aid reforms so far have been piecemeal and ineffective.
During his election campaign, Leung Chun-ying reassured the Hong Kong people that he would do his best to promote and uphold the rule of law during his term.
Here is a golden opportunity for the administration to demonstrate the chief executive’s commitment: establish an independent legal aid authority in charge of both budget and policy – as advised by the Legal Aid Service Council in its 1998 report. We urgently need to provide greater and better access to legal services. There is a large unmet need for legal services in our community today.
Academic Dr E.J. Cohn said the law “is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the state to make its machinery work alike.” The rule of law calls for nothing less.