The key to providing a level legal playing field

PUBLISHED : Monday, 27 December, 2010, 12:00am
UPDATED : Monday, 27 December, 2010, 12:00am

In his annual reception for new foreign and mainland investors in June, Chief Executive Donald Tsang Yam-kuen spoke of Hong Kong's 'pretty appealing advantages' for investors. The first of these that Tsang chose to highlight was 'the rule of law upheld by an independent judiciary'. Indeed, a healthy rule of law means a level playing field for all, whether it is between an individual and the state, or between two companies locked in a dispute. Hong Kong has deservedly developed a reputation for upholding the rule of law, which ensures that both individuals and companies are treated fairly. However, to keep the playing field level, laws must be constantly revised if not reformed. Members of the legal community who volunteer on bodies such as the Law Reform Commission or other committees in the Bar Association and the Law Society are therefore dedicating themselves to keeping the turf trim and free from potholes in order to ensure that our playing field remains in top condition for fair competition.

It is therefore disappointing to see that despite the chief executive's own acknowledgement of the importance of the rule of law, efforts to maintain or improve our legal landscape often go unheeded. Two months ago, during the awarding of scholarships to promising new barristers, the Chief Justice Geoffrey Ma Tao-li stressed the duty of lawyers to remain independent and to join various committees in order to contribute to the upholding of the rule of law. A total of 67 members of the community have served on the Law Reform Commission since its establishment in 1980, and over 450 people have served on one or more of the sub-committees. But of the 56 reports completed, only 27 have since been implemented in some form. This raises concerns that our laws are falling behind, and in some cases, failing to protect citizens. The Australian Law Reform Commission boasts of an implementation rate of over 85 per cent and, along with the British equivalent, has formal procedures for the government to give an account to the legislature on its progress in considering law reforms.

As the chief justice has stressed, it is important that the legal community, as well as the judiciary, is perceived as acting independently in the interests of the rule of law. But in recent years, lawyers and sometimes even judges, have had to speak out more in order to draw the media's attention to pressing legal issues which are not being addressed, thereby exposing them to accusations they are against the government. Failing to heed calls for reform not only renders our laws anachronistic, but also undermines the independence of the legal community.

Legal-sector lawmaker Margaret Ng Ngoi-yee has indicated she would raise the issue of considering similar laws for the Law Reform Commission in the administration of justice and legal services panel in the Legislative Council. By formalising the process and placing a duty upon the government to report to lawmakers on whether it has considered these reports, lawmakers can step into the role of lobbying for change, while lawyers and judges can remain as legal experts rather than activists.

This would be conducive to both the rule of law and the independence of the judiciary. If the chief executive can acknowledge these elements as combining to provide Hong Kong's most valuable asset, then he can also do more to reassure both local residents and foreign investors that Hong Kong is doing everything it can to ensure our laws are up to date, and our playing fields are level for all.