【Article】Poor being let down by lack of access to court services

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.

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Dysfunctional politics

South China Morning Post | 2011-02-17 
EDT13| EDT| Voices:Hong Kong| By Dennis Kwok 

One clear sign of change that emerged from last year’s constitutional debate is the shift in the political fault line over functional constituencies. Even hardliners now concede that the current system of trade seats in the Legislative Council needs to change. They have moved from a position of denial to one of reluctant acceptance of reform.

It has taken us more than 20 years to arrive at this consensus. Unfortunately, unless these trade seats are ultimately abolished, this debate will continue to dominate our political discourse.

The conservatives say that functional constituencies serve as a counterweight against populism. All Western constitutions, they argue, have similar measures of protection. They often cite the US electoral college vote system as an example, pointing out that even the US president is not democratically elected by the people.

The electoral college vote system was designed by the founders of the United States as a way to preserve the union of what was then a fragile federation of states, by giving small rural states the same political weight as bigger states. More than 200 years later, the demographics have changed so much that small states now wield enormous and disproportionate influence over the political process, with each vote in a small state carrying on average three times more weight than a vote in other states. The US political system is in poor health because of the outdated and undemocratic features within its constitution.

Contrast this with the situation in Hong Kong, where some 200,000 citizens and corporate bodies elect half our legislators, and only 800 individuals and groups – members of the Election Committee – can vote in the chief executive election. With about 3 million voters electing the other half of the legislature – lawmakers in geographical districts – this means that, in our system, a vote in the trade seat elections carries 15 times more weight than one in the geographical polls. These figures reveal the extremity of the situation.

Checks and balances are necessary in any mature political system, but the question is, at what cost? Businesses today are often blamed for all forms of social ills when, in fact, more than 90 per cent of successful businesses are small and medium-sized enterprises that provide jobs, create prosperity and spur innovation for Hong Kong’s economy. However, the trade seats are controlled by conglomerate vested interests serving no one but those who elect them. They are seen as a symbol of privilege, and their existence ironically incites the kind of populism that their defenders most fear.

For example, the financial and banking industries employ more than 150,000 professionals in Hong Kong, yet only a handful of voters are allowed to elect the Legco representatives for these sectors. The inability to consider the wider public interests is political short-sightedness.

Furthermore, our system has in place sufficient safeguards against populism. Article 74 of the Basic Law restricts the ability of individual Legco members to introduce any bill that involves government expenditure and policy. Consent from the chief executive is required. This constitutional safeguard is reinforced by a strong middle class, a vibrant civil society, an independent judiciary and a free press. Also, our proportional representation electoral system ensures a political scene with many political parties, making coalition government a necessity for effective governance. These measures provide the necessary checks and balances. Why do we still need functional constituencies, a 19th century colonial relic, to serve such a function?

These are questions that defenders of functional constituencies are finding increasingly hard to answer. The social costs of such a system are too much to bear for Hong Kong: our political discourse becomes ineffective, and our differences over public affairs are often unnecessarily magnified, restricting our ability to find common ground.

Last year, Hong Kong failed to make any headway in efforts to abolish this outdated and undemocratic system. Yet we must not leave the question of functional constituencies to the next generation and allow this single issue to continue to plague and dominate our political discourse. The challenges ahead for Hong Kong are far too great and we must not allow this infighting to go on. Functional constituencies must be abolished to make way for a more open society in the 21st century.

Dennis Kwok is chairman of the Civic Party’s constitution and governance policy branch

Copyright (c) 2011. South China Morning Post Publishers Ltd. All rights reserved.

Lack of transparency politicises everything

South China Morning Post | 2008-06-19 
EDT15| EDT| By Dennis Kwok 

Recently, The Economist carried an article criticising Hong Kong as an international financial centre for our falling standards of corporate governance. The article focused on the resignation of David Webb from the board of the stock exchange, and how the government put its voting muscle behind its nominee, who has less experience in finance than other candidates.

Apparently, the government and the stock exchange are having quiet discussions about creating a new set of listing rules that would lower disclosure requirements. Whether standards of corporate governance have declined in Hong Kong is worth further debate, but this article highlights a deeper problem within our society. That the government frequently appoints its own people to the boards of public companies, advisory committees and other public bodies is a well-known fact of life in Hong Kong.

This mode of appointments has crept into every aspect of public life. Ironically, what you frequently hear from these pro-establishment figures is how we must not politicise everything. But, by practising their brand of non-politicisation, our society is becoming more politicised than ever. Appointments are based on political affiliation: loyalty is valued over expertise; political correctness over ability. Is pluralism dead?

The Professional Commons believes the success of the West Kowloon Cultural District project will hinge largely on the composition of its management authority. We must have suitably qualified experts, who are truly knowledgeable about arts and culture, sitting on the authority. Political considerations should not play a role.

The decision on appointments must be ultimately accountable to the people. In an international city, there is no reason why this cannot be. But, in the current climate, our recommendations will most likely fall on deaf ears.

The lack of transparency and accountability in the appointments system has generated deeply entrenched divisions within our society. Yet, if our government is at all serious about achieving its lofty goal of building a harmonious society, this can only be achieved through unity, not further division.

The controversial appointment of deputy ministers and political appointees highlights another example of this same problem. Throughout the entire process, the public has largely been kept in the dark. No one knows who made the actual decisions, let alone what criteria were used. Openness and accountability were completely non-existent in the process.

This further exasperated the public, which already felt that some of these appointees were taking a short cut and that their commitment to serving Hong Kong was in serious doubt. Everything about these appointments flew in the face of accountability and open government.

The administration’s primary aim in these appointments is to produce future political leaders. The chief executive should be careful what kind of leaders he is producing.

 

Dennis Kwok is a founding member of the Professional Commons

Copyright (c) 2008. South China Morning Post Publishers Ltd. All rights reserved.

A discriminating bill

Feburary 28, 2008

Dennis Kwok Published in the SCMP

We understand that, to be good parents, we must ourselves be examples for our next generation. As the philosopher Lao Tzu said: “Tolead people, walk beside them.” How does our government measure up to these cardinal rules of leadership? The recent debate over the Race Discrimination Bill proposed by the government provides a useful insight into this question.

The aim of the bill is to outlaw all forms of racial discrimination in our society. To advocate racial equality is a great sign of maturity for HongKong. It demonstrates moral responsibility on an issue that plagued most of the 20th century. By enacting this legislation, we would demonstrate to all that the Hong Kong people are citizens of the world,and we would have earned our rightful title as an international city.

Ethnic minorities, including Indians, Filipinos, Indonesians and Pakistanis, have contributed to the success of Hong Kong through generations of hard work, and are more-loyal citizens than many others could claim. Some of them are trilingual, with a thorough grasp of Chinese language and culture. They provide a vital economic link between Hong Kong and other Asian countries. Yet, for generations,they have felt marginalised and underappreciated for their work and contribution to society. With the enactment of the anti-discrimination legislation, they would at least have a legal guarantee for equal opportunities and know that their children would receive fair and equal treatment in our public schools and hospitals. But is that so?

The government has insisted that the bill must provide a broad range of exemptions, covering most of the administration’s activities and that ofother public authorities. Clause 3 of the bill states: “This Ordinance applies to an act done by or for the purposes of the Government that is of a kind similar to an act done by a private person.” This not only violates the legal standards set by the International Convention on the Elimination of Racial Discrimination, it effectively provides a licence for the government to engage in racially discriminatory practices in all governmental functions – such as the provision of education, health care and taxation. None of the legislation that prohibits discrimination on the basis of sex or disability provides for these exemptions for the government.

The bill also does not seek to outlaw the discrimination faced by new immigrants from the mainland. They often come to Hong Kong with nothing but the hope of making a new start and the will to work in the most humble jobs just to earn a better living. They have every right to be treated with equal respect. But the discrimination often faced by these new immigrants limits their employment opportunities and locks them in poverty without the means to escape. The tragedies we have seen in Tin Shui Wai are glaring examples of this social problem. The UN states that the objective of the International Convention on theElimination of Racial Discrimination includes the need to outlaw discrimination based on immigrant status.

Our government took the right step in introducing this bill, but why is it not willing to be bound by the same law as everyone else? If it is serious about leading the fight against racial discrimination, why does it insist on putting itself above the law and allow a legal loophole for institutional racism to thrive?

History teaches us that eliminating racial discrimination in any society requires much more than new laws; it takes years of civic education to reform people’s attitudes. With this double standard in place, how can we expect the government to take a leadership role in the education ofthe public?

Perhaps our bureaucrats fear the legal and practical implications of thebill. After all, pragmatism is the buzz word for Donald Tsang Yam kuen’s administration. But, when it comes to questions of moral values and the vision of a fair and just society, simply being pragmatic with a”get the job done” mindset is not enough. Our government must lead by example.

Let’s step back and ask why we want democracy

South China Morning Post | 2008-01-08 
EDT13| EDT| By Dennis Kwok 

 

Paul Johnson, George Washington’s biographer, wrote that the ability to always think in the long term was one of Washington’s greatest attributes. In Hong Kong, do our politicians have that kind of long-term vision for our city and our country?

 

Since the National People’s Congress Standing Committee announced its decision on the future development of Hong Kong’s constitutional reform, commentators, academics and politicians have unleashed a hail of analysis and re-analysis of democracy in Hong Kong and how and when to achieve it.

 

In the midst of these debates, marches and sit-ins, it is easy to overlook why we want democracy in the first place. It is all too easy to forget why we believe democracy would make for a better system of government in the long term.

 

I believe it is time to take one step back from the current debate and ask ourselves these basic questions.

 

Our aspiration for democracy stems from our core belief that a democratic system creates a level playing field which allows the true competition of ideas and public policies.

 

We believe that, if society allows competition to flourish in the political arena, it will force politicians and political parties to come up with better policies and better ideas to win the hearts of their constituents.

 

We believe that democracy produces better governance because it ensures competition, not complacency. Democracy forces our political leaders to keep pushing the frontier of change for a better society. Our politicians are currently obsessed about the details of our future constitutional framework and each camp is busy developing strategies.

 

While the details of the system are important, let us remember that a system can only be as good as the people it comprises, and the ideas and values they hold.

 

Should Hong Kong ever achieve a truly democratic system (the sooner the better), it would only improve the lives of our citizens and future generations if our politicians and political parties were able to deliver sound, sensible and well-researched policies for the public to choose.

 

In recent years, we have witnessed a healthy growth of public policy think-tanks, but how many political parties in Hong Kong are taking the issue of policy research seriously?

 

How many of our politicians are coming up with sound policy ideas to tackle the challenges we face?

 

When was the last time you heard a politician offer a workable solution on, for instance, how best to improve our education system, which ranks 63rd among 131 nations in terms of expenditure in the World Economic Forum’s 2007-2008 Global Competitive Report?

 

Or what about policies to deal with air pollution in Hong Kong? We know that Guangdong is already facing severe water shortages due to pollution and wastage. China Daily reported that by 2020, the shortfall will widen to about half of the province’s water demand if nothing is done.

 

Hong Kong depends heavily for its water from the same supplies in Guangdong.

 

In the long term, this problem could send Hong Kong back to the 1960s when people had to queue during shortages with water buckets.

 

Even if we achieve universal suffrage by 2020, how would our politicians tackle such long-term challenges?

 

It is time for the pan-democrats to remind themselves and the Hong Kong people that the reason we want democracy is because we believe it brings good governance; and that we must plant the seed of good governance today, and not wait until 2020.

 

This year, The Professional Commons will publish a series of policy research papers looking into these challenges. Universal suffrage is a means to an end. Let’s not lose sight of our long-term goal.

 

 

 

Dennis Kwok is a founding member of The Professional Commons

 

Copyright (c) 2008. South China Morning Post Publishers Ltd. All rights reserved. 

 

 

The perverse logic of functional seats

South China Morning Post | 2007-10-27 
EDT16| EDT| Observer| By Dennis Kwok

Two arguments are frequently cited in favour of Hong Kong keeping the functional constituencies in its legislature. The first is that they produce lawmakers with the experience and knowledge necessary to give opinions on legislative issues that fall within their areas of expertise. Second, that functional constituencies are a necessary safeguard against policies that might endanger the economy and our economic model.

Take, for example, the new construction projects promised by the chief executive in his recent policy address. One might think it would be very useful to have an engineer present in the legislature when such schemes are discussed. But we know the building sector includes a whole range of professions and businesses.

Taking that line of reasoning to its logical extreme, we should have elected representatives from the workers on the ground as well as engineers. In fact, everyone involved, from developers to ironworkers, should be entitled to elect their own representatives to contribute to the legislative process.

Given the range of issues that the Legislative Council has to consider and the many businesses and professionals’ interests involved, the number of functional seats could reach the hundreds, if not thousands. That is, if one were to ensure “balanced participation” – a notion frequently emphasised by our government. This, of course, would lead to an absurd situation.

The public policy group The Professional Commons believes that, if the real worry is the lack of expertise in debates, then professionals, scientists, unionists, economists, environmentalists and the like should be invited to speak in Legco. This would also ensure that the opinions given were less biased, because such experts do not have the next election to worry about.

Functional constituencies provide the necessary safeguard for our economic model, it has been argued. But precisely which economic model? Maybe it is the model where a handful of family companies continue to run and monopolise our domestic markets. Those in favour of retaining functional constituencies seem to fear that the rich and powerful might be too busy running their own businesses to lobby politicians to support their legislative agenda. Therefore, they must be able to elect their own representatives.

This, they argue, ensures “balanced participation” in public affairs. Meanwhile, the rest of the population – with all that free time – is expected to do the planning and campaigning to get their candidates elected. The ironworkers who were on strike this summer might disagree with this argument. So would a single mother in Tin Shui Wai with no childcare support, and the 70-year-old who must collect cardboard boxes to get by.

Functional constituencies were introduced by the British in the 19th century as a way to enfranchise the few elite in society. We have moved on since then. Our economic model, and Hong Kong society as a whole, has undergone fundamental changes. That includes our notions of equality and fairness.

Can functional constituencies, a dinosaur from the colonial era, keep up with the changes? Some believe they can, if we expand the electoral base by giving every citizen two votes. What they fail to mention is how we do this. Doctors, lawyers and accountants can easily be identified and given a vote. But what about housewives, retired people and non-professionals. How do we define which functional sector a person belongs to if he or she has to change jobs every few months, or has to do three different jobs to make ends meet?

The Professional Commons believes there is a better solution than trying to fit everyone into a functional constituency. That is, for professionals and business interests to relinquish their special privilege and play by the same rules as everyone else. It’s about time.

Dennis Kwok is a founding member of The Professional Commons

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