It's time to end this injustice on legal aid

PUBLISHED : Thursday, 30 September, 2010, 12:00am
UPDATED : Thursday, 30 September, 2010, 12:00am

The rule of law and the sound reputation of our city's judiciary has been a key foundation for the success of the 'one country, two systems' concept and the development Hong Kong as an international financial centre. Businesses come to the city assured that disputes can be resolved fairly either in the courts or through a growing number of alternative dispute services such as arbitration or mediation. When the court performs its role as guardian of the Basic Law, individuals benefit from the protection of their rights and freedoms. Individuals and companies, whether from Hong Kong or elsewhere, have come to trust and rely on the courts to decide cases without fear or favour.

However, trust and public confidence can be extremely fragile, and a plethora of factors threaten public confidence in the independence of the judiciary. One of those is the question of access to justice. If a man's only experience of the judiciary is when he is either prosecuted by the government, or sued by a large corporation, while he himself is unable to find assistance from quality lawyers to defend him or initiate his own litigation because of a lack of funds, he will no longer believe the system fair or the judiciary independent. The judiciary, in his eyes, becomes a tool of the government or big business, which does not come to his aid.

Recognising the importance of access to justice, the judiciary has initiated civil justice reforms to put an end to procedural games in which the wealthier party draws out the litigation process in order to exhaust the funds of the financially weaker side. Both past and present chief justices have called for more pro bono services, and discussions are already under way within the legal community to set up a more structured system of free legal services. But reforms for the most important aspect of improving access to justice, in criminal and civil legal aid, must be initiated by the Home Affairs Bureau.

Today, the bureau must explain to lawmakers and the public why it has failed to implement any of the suggestions made by the Bar Association since calls for serious reform were made in 2003. The Bar has provided a number of detailed reports on the state of legal aid, including detailed analysis on why the proposal to increase the asset limit for ordinary legal aid from HK$175,800 to HK$260,000 and that for the supplementary legal aid scheme eligibility from HK$488,400 to HK$1.3 million, would still result in substantial injustice. For example, even under the new limits proposed, a 50-year-old man who has worked all his life could still be ineligible for any form of legal assistance because of the 'financial resources' he has accumulated over the years. Yet he would not be able to initiate litigation without risking all his savings, which he had reserved for retirement. In effect, this man has no choice but to let an injustice go unresolved. He has been denied access to justice. The Bar suggests raising the eligibility for ordinary legal aid to HK$350,000 and that for the supplementary legal aid scheme to HK$3 million, while also expanding its scope.

The administration recognises that since the supplementary legal aid scheme is a self-financing one, there is little compromise to its financial viability. All it takes is for the Home Affairs Bureau to spend a little less money on vanity projects such as the Asian Games, and inject more money into the scheme's funds. Given the scathing criticism of how the Home Affairs Bureau has handled this review, it is also time to renew discussions on a truly independent legal aid authority so that access-to-justice issues are given the priority they deserve.