Poor let down by lack of access to legal services

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.