THE Legal Department's advice to the Government to pay compensation to Vietnamese injured in a tear-gas attack on the Whitehead detention centre last year out of court and without admitting liability is pragmatic and expedient. The advice, revealed by this newspaper yesterday, has the merit of saving large sums of taxpayers money on Legal Aid and court proceedings. It allows the Government to continue to target for forced repatriation people who would otherwise expect to be able to prolong their stay in Hong Kong on the pretext of having to testify in court. And, while it would seem to set the moral precedent that boat people injured in a Government action should be compensated, it does not set a precedent in any legal sense.
The Government can claim that it has accepted the findings of the inquiry into the April 7, 1994, raid and that compensation payments follow from that. It has not accepted liability for injuries in other operations. So long as that rather dubious claim is not challenged in court, the Government can act more or less as it wants in future camp operations.
It would be unwise for correctional services officers or the police to assume they have carte blanche to assault inmates. Settlement out of court would no longer be an option if they did. But if a legal precedent had been set, it would not be long before boat people started courting minor injuries in order to get compensation and to stay in Hong Kong while the case was brought. The history of camp operations shows there have been instances of thuggery on both sides.
Neither the Vietnamese nor their jailers should be encouraged to commit violence.
However, pragmatism is not principle. Legislators on the legal services and security panels have rightly convened a joint inquiry into the handling of legal aid applications and the deportation of applicants. This is a murky area both legally and morally, and key questions remain unanswered. Why were there such delays in handling applications? Should boat people have been deported before their applications were processed? Why was it that the first award of legal aid was announced on the day the South China Morning Post revealed the delays and deportations? The inquiry should not be afraid to examine whether Government pressure was applied to the Legal Aid Department. The independence of legal aid decisions goes to the heart of the rule of law. If the Government can dictate who gets legal aid and when, then only the rich and powerful can take it to court. The law is theoretically applied equally with no regard to race, colour or creed. Vietnamese boat people must not be an exception.