More legal aid needed for litigants
Updated: 2013-01-23 05:52
By Andrew Mak(HK Edition)
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No one would dispute that going to court can be a tortuous and expensive process. Few would doubt that going to court without a lawyer can be much worse. At the opening of the current legal year, the Bar Association and the Law Society vehemently condemned the lack of an adequate system of legal aid for litigants, and set off an alarm bell that Hong Kong's reputation as an international and regional dispute resolution center may be in jeopardy.
In the World Justice Report for 2012-2013, countries in Western Europe and North America were shown to outperform most other countries in all dimensions covering the rule of law. These countries are characterized by relatively low levels of corruption, open and accountable governments, and effective criminal justice systems. The greatest weakness in Western Europe and North America, including both the UK and the US, however, appears to accessibility of the civil justice system, especially for marginalized segments of the population. While protection of fundamental rights in this region is the highest in the world, police discrimination against foreigners and ethnic minorities is an issue of concern in most countries.
One must not forget that access to justice may properly refer to the ability of all citizens to seek and obtain effective remedies through accessible, affordable, impartial, efficient, effective, and culturally competent institutions of justice. Proper dispute resolution systems enable people to protect their rights against infringement including powerful state and other entities.
It is common knowledge that all around the world, people's ability to use legal channels to resolve disputes is often impeded by obstacles such as financial barriers, language problems, complexity of procedures, or simply lack of knowledge and exclusion. This problem is certainly not restricted to developing countries. In many developed nations, the formal civil justice systems, although independent and free of improper influence, remain largely inaccessible to disadvantaged groups.
For example, in the US, only a few low income people use the court system (including the small-claims courts), while many take no legal action to resolve their disputes. Among the low income litigants, 81 percent did not seek legal assistance because they felt they could not afford lawyer's fees, compared to 48 percent of high income litigants. It remains another question whether people who did not go to court to resolve their disputes would be more likely to take law into their own hands as a result.
Hong Kong has always enjoyed a renowned position. Cases of Hong Kong courts are repeatedly referred in courts elsewhere. Within the East Asia and Pacific region (which includes Australia, Singapore and Japan), according to the World Justice Report, Hong Kong ranks in the top 10 in four dimensions. The city also placed second in providing order and security and eighth for the effectiveness of its criminal justice system. Administrative agencies and courts are efficient and free of corruption (ranking ninth) although not free entirely of government interference.
On the other hand, Hong Kong is said to lag behind others in the region in guaranteeing fundamental rights and freedoms to its people (we rank 31st). This may surprise many. However, whilst the World Justice Report is certainly looking at the matter from an outsider's perspective, it is common ground that Hong Kong is one of most advanced territories in the region for dispute resolution. Its proximity to the Chinese mainland is of particular relevance.
Hong Kong should not lose its edge in this regard. In recent years, our institutions on arbitration and mediation are being built up and thriving. We should not lose out in the pursuit of justice for all when compared to others. More resources should be put on top for our sandwich class citizens. Legal aid service is an integral part of Hong Kong's legal system. Let this hold true.
The author is a HK barrister and chairman of the Hong Kong Bar's Special Committee on Planning and Policy.
(HK Edition 01/23/2013 page3)