Access to justice as a fundamental human right is protected under the Basic Law. Article 35 specifically provides Hong Kong residents, among other things, with the right to access the courts and to choose a lawyer for timely protection of their lawful rights and interests or for representation in the courts. Legal aid plays a critical role in enhancing access to justice and the Law Society has been keeping a close watch on the operation of the legal aid system.
The independence of the Legal Aid Authority has been debated before. It is the Law Society’s view that an independent Legal Aid Authority will ensure that those who require legal advice should be able to do so without undue pressure or influence from any source; this premise is fundamental to a fair and democratic society. We are disappointed that the Legal Aid Services Council has endorsed the recommendation that there is no immediate need to establish an independent Legal Aid Authority. The re-positioning of the Legal Aid Department back to the office of the Chief Executive or the Chief Secretary for Administration might help enhance the role of the Department, but it fails to address the institutionally flawed arrangement of retaining it within the Government structure.
In relation to legal aid services, the Law Society has been in regular discussions with the Legal Aid Department to convey practitioners’ concerns about existing practices. We consider that there is room for improvement in various areas, which include:
- the procedure for legal aid applications should be made more user-friendly
- the processing time for legal aid applications and payment of compensation / damages should be expedited
- the accessibility to legal aid information by ethnic minorities should be enhanced by putting in place better interpretation facilities
- the mechanism for assignment of legal aid cases to panel practitioners should be made more transparent and subject to regular review
- the process of approval of disbursements routinely incurred by the assigned solicitors should be streamlined through pre-approvals
- the applicant’s liability for expenses under s. 9 of the Legal Aid Ordinance should be reviewed and the criteria adopted in the referral for legal advice under the same section should be made more transparent
The Legal Aid Department is receptive to some of the views raised by the Law Society. It is, among other things, working on enhancing its website to facilitate public access to the checklists for legal aid applications. The Legal Aid Services Council has set up a Task Force on Dissemination of Legal Aid Information to enhance the Department’s operational transparency.
On the review of the criminal legal aid rates, the Law Society continues our lobby through deliberations with stakeholders in various platforms, one of which is the working group formed by the Home Affairs Bureau in March 2014. The lack of adequate criminal legal aid resources seriously limits defendants’ ability to defend themselves against a much more resourceful prosecution, creating an inequality of arms which in turn prejudices the basic rights of those facing criminal charges. Further, the disparity between criminal and civil legal aid rates deters both experienced practitioners and new blood to take up criminal legal aid work. With the dwindling of the pool of practitioners for criminal legal aid work, the interests of those in need of legal aid assistance in this area will be adversely affected.
Legal aid forms an integral part of the administration of justice. Further, a substantial portion of our members engage in legal aid work. I therefore see it to be the duty of the Law Society to ensure that we do everything within our remit to help enhance the legal aid system. The relevant Law Society committees regularly review the issues arising from legal aid practices and monitor the progress of the measures proposed by the Legal Aid Department to address those issues. If members encounter any difficulties in connection with legal aid that they wish to bring to our attention, you are most welcome to write to me at president@hklawsoc.org.hk.
