HKBA's note on operation of Legal Aid Srv. Council for LegCo Panel on Administration of Justice

 

Hong Kong Bar Association's Note on Operation of the
Legal Aid Services Council

for LegCo Panel on Administration of Justice and Legal Services Meeting
on 31st March 2003



The Rule of Law not only needs to be upheld, but must be seen to be upheld.

It is not good enough for the Administration to keep repeating
in the media that the SAR Government would "implement the Basic Law
and to uphold the principle of One Country, Two Systems" and to protect
the Rule of Law. Rue of Law is a fragile thing and has to be seen to be
upheld by the Administration by the general public.

Providing an accessible, transparent, committed, effective,
fair and just Legal Aid service is a cornerstone of upholding the Rule
of Law in Hong Kong.

The Bar considers that the requests made by the LASC as
stated in its letter dated 9th April 2002 to the Administration are all
very humble and modest. They included:

(1) Powers to enter contracts

(2) Composition of Council and Quorum

(3) Networking with Other Institutions

(4) Powers to appoint its own staff



The above suggested changes are only consistent with a credible independent
body which is charged with overseeing the provisions of legal aid services
in a 'world class' City like Hong Kong.



Powers to enter contracts

The fact that the Council still have to enter contracts
in the name of the Government does not, in the Bar's view, sits in well
with the image of an independent supervisory body. It will not be consistent
with the Government's claim that it wishes to uphold the Rule of Law and
to implement the principle of One Country, two systems.



Composition of Council and Quorum



For the more efficient use of the Council member's time, a reasonable
quorum for the Council's meeting as currently suggested by the Council
in its letter to the Panel dated 14th November 2002 is in the Bar's view
not unreasonable. In order to allow the Council to operate in a more efficient
manner, we would support the proposal of the Council to amend the quorum
requirement from 6 members plus the Chairman to 5 members plus the Chairman:
see p.3 par 2 of letter of LASC to Panel dated 14.11.2002.



Networking with other institutions

The Bar thinks that the Administration should have more
faith in the ability and integrity of the Members of the Legal Aid Service
Council appointed by them. The Bar has complete confidence in the Council
that they would not be doing anything to compromise the independence of
the LASC. We are of the view that the joining of an international body
on legal aid for the purpose of 'exchanging information, research or enhancing
good practices, etc.' as currently proposed by the Council will only enhance
the efficiency and cross- fertilization of views amongst such institutions.
We cannot see the basis of the Administration's objection to this and
how the networking with other institutions 'may run the risk of compromising
(the LASC's) independent status.



Power to appoint own staff

This in the view of the Bar is a very modest move towards
a more independent body. This is only consistent with the trend in other
common law jurisdictions where more and more of such bodies which has
independent power to enter into 'private contracts', including employment
contracts. To continue the present arrangement of using civil servants
after the Council has been set up more than 7 years ago does not in our
view enhance the image of the Council as a supposedly independent body.
The Bar takes the view that these changes need not have to wait for the
'concrete plan' from the Council to change its existing arrangement for
staffing its secretariat with civil servants before the Administration
can think of more 'specific statutory provision': see letter from Government
Secretariat to LASC dated 5.2.2002

Direction, Strategy and Action Plan Paper dated 14th March 2003

The Bar notes the contents of this very useful Paper which
provides a summary of the LASC's direction, strategy and action.



The Bar echoes with the views stated by the LASC in that Paper. In particular,
we take note of the points made under para 7 of the Paper. It appears
to the Bar that the lack of progress over the years to make the LASC as
an independent Legal Aid Authority is purely due to a lack of political
will on the part of the SAR Government.



The Bar would urge the Administration to re-visit this matter again so
that this cornerstone of our Rule of Law, i.e the provision of first class
legal aid service in the only City in China would not be compromised due
to the lack of a truly independent, whether in substance or by general
public perception, Legal Aid advisory and supervisory body.



Lastly, the Bar says that the Administration needs to put their money
where their mouth is and to take concrete and urgent steps to move forward
to make the Legal Aid Service Council a truly independent and credible
body.

Dated this the 31st day of March 2003.

Hong Kong Bar Association