Safeguarding the equality of legal aid
Legal aid is always a sensitive issue because it enables the ordinary citizen to challenge the rich and powerful, including the government, in court. It has not always gone smoothly. In 1992, the contract of the then director of legal aid, Patrick Moss, was not renewed. The reason was widely believed to be because he granted legal aid to Vietnamese boat people who were challenging the government on their right to remain in Hong Kong. This, among other matters, triggered a debate in the Legislative Council on the independence of the legal aid system.
In July 1997, when the government rushed through measures to bar mainland-born children of Hong Kong residents from the city, and to remove those who were already here, they were refused legal aid in their bid to apply to the courts for a review of the government's policy.
The Hong Kong Bar Association and many solicitors formed an emergency group to provide voluntary services. Legal aid was eventually granted.
In January 1999, the Court of Final Appeal ruled for the children. But after an interpretation of the Basic Law by the Standing Committee of the National People's Congress in June, effectively overturning the judgment, thousands of children who thereby lost their rights brought individual cases before the court. Again, their applications for legal aid were refused. Again, voluntary legal representation had to be found to fight, in the event successfully, the refusal of legal aid.
Although the government claims that the present statutory requirements are adequate to ensure that the director of legal aid is free from the pressure of internal government policy, and the appeals process is sufficient for rectifying errors, the reality is quite different.
The proposal to put the Legal Aid Department under the Home Affairs Bureau brings the power to grant, or refuse, legal aid to those challenging government policies even more directly under the influence of the very people who make the policies.
The present structure is not ideal. However, it is the most independent possible if legal aid remains within the remit of the government.
Even if the effect of the proposal is only a matter of degree, the degree, the direction in which it is moving, and the high-handed way in which the move is being handled are matters for concern.
The move is, in itself, inappropriate. The Department of Legal Aid's main responsibility consists of vetting applications on the basis of a means test and the legal issues involved, assigning lawyers to represent the successful applicants, monitoring their work and taking up simpler cases in house.
The department - with about 70 lawyers and 350 supporting staff - is a reverse image of the Department of Justice. Whereas the latter represents the government in civil litigation and prosecutes criminal offences, the former funds civil litigation - including those against the government - and the defence in criminal prosecutions. They should be equal and opposite.
It is absurd to put legal aid under the Home Affairs Bureau.
The spurious reason given by the government for this extraordinary transfer is that legal aid is a service to the community, and the Home Affairs Bureau is closest to the public. This contradicts the statement of the secretary for constitutional affairs, who said in the 1992 case: 'Although legal aid has often been regarded as a form of welfare service, it is first, and foremost, an integral part of the justice system.'
The proposal to 'transfer now, review later' is so illogical as to be disingenuous. The Hong Kong Bar Association has grave concerns, and so has the Human Rights Monitor. Their legitimate worries speak volumes on the safeguarding of a key component in the process of making inequality before the law a little more equal.
Margaret Ng Ngoi-yee is a legislator representing the legal profession
