Le­gal sys­tem ‘still re­quires im­prove­ment’

China Daily (Hong Kong) - - 20TH ANNIVERSARY OF HKSAR -

de­bat­ing hall or a class­room. I t ’s o n l y w h e n t h e p u b l i c au­thor­ity has acted un­law­fully or gone out­side its law­ful pow­ers or abuses its pow­ers given by a statute that a court can in­ter­vene,” he re­it­er­ated.

He said JRs in the city wasted court re­sources.

Law pro­fes­sor Song Sio­chong agrees. “Over­all, Hong Kong pro­vides the eas­i­est ac­cess of JR among com­mon law ju­ris­dic­tions,” Song said, cit­ing pre­vi­ous stud­ies on the is­sue.

Song ar­gues that the worstcase sce­nario is when there is no mech­a­nism in place to stop such abuses.

He be­lieved that the cur­rent sit­u­a­tion had to some de­gree made the gov­ern­ment hes­i­tate when han­dling thorny is­sues.

Lawrence Ma Yan-kwok, a bar­ris­ter and chair­man of the China-Aus­tralia Le­gal Ex­change Foun­da­tion, is also con­cerned.

He be­lieves Hong Kong’s ju­di­ciary should set up ad­di­tional bod­ies to ad­dress the mat­ter.

Firstly, the city’s Le­gal Aid Depart­ment should form an in­de­pen­dent panel of judges to as­sess the grant­ing of le­gal aid, Ma pro­posed. He cited the city’s Le­gal Aid Or­di­nance, where cur­rently ap­pli­ca­tions for aid are re­viewed by a group of bar­ris­ters and so­lic­i­tors who could be­come the ap­pli­cant’s lawyer in the same case. This ob­vi­ously could lead to con­flicts of in­ter­ests, he noted.

By re­form­ing the sys­tem, the depart­ment could ob­tain neu­tral and au­thor­i­ta­tive deci- sions, Ma ar­gued. But such changes re­quire an amend­ment to the Le­gal Aid Or­di­nance.

Ma also urged the Hong Kong ju­di­ciary to learn from its coun­ter­parts in Aus­tralia. There, they pri­or­i­tize ur­gent cases af­fect­ing the pub­lic in­ter­est — in­clud­ing JR cases.

He be­lieved such changes would help pre­vent JRs from be­ing used to serve po­lit­i­cal in­ter­ests.

Stronger law en­force­ment

Mean­while, le­gal ex­perts are also wor­ried about the way the po­lice force is now treated in Hong Kong. Song said the force had lost the “strict­ness of law en­force­ment” and had in­stead be­come a “team of ser­vices”.

This dilemma was ev­i­dent dur­ing protests dur­ing the il­le­gal 79-day “Oc­cupy Cen­tral” move­ment in 2014, he noted. Rad­i­cal protesters were seen as­sault­ing front-line po­lice of­fi­cers — of­ten without a strong re­sponse from the of­fi­cers.

“Nor­mal po­lice tac­tics are to dis­perse an (il­le­gal) as­sem­bly in other de­vel­oped coun­tries, in­clud­ing with the use of tear gas and high pres­sure guns. But in Hong Kong th­ese are of­ten seen as un­ac­cept­able po­lice vi­o­lence,” Song noted. Po­lice of­fi­cers use very re­strained tac­tics when deal­ing with protesters, he ex­plained.

Song also con­demned some op­po­si­tion ac­tivists for crit­i­ciz­ing the po­lice for not re­spect­ing in­ter­na­tional stan­dards.

“Hong Kong’s stan­dards are ac­tu­ally much higher than the in­ter­na­tional ones,” Song said. He hoped po­lice would en­force laws strictly to up­hold the rule of law.

Ar­ti­cle 23

The ab­sence of a na­tional se­cu­rity law on Hong Kong’s statute books has also gen­er­ated con­sid­er­able con­tro­versy.

Ac­cord­ing to Ar­ti­cle 23 of the Ba­sic Law, Hong Kong has a con­sti­tu­tional re­spon­si­bil­ity to en­act laws to pro­hibit any act of trea­son, se­ces­sion, sedi­tion or sub­ver­sion against the Cen­tral Peo­ple’s Gov­ern­ment and to stop na­tional se­cu­rity threats aris­ing from for­eign forces.

Ho w e v e r, a f t e r a f a i l e d at­tempt in 2003, the gov­ern­ment shelved the na­tional se­cu­rity leg­is­la­tion.

Chair­man of the Ba­sic Law In­sti­tute, Se­nior Coun­sel Alan Hoo Hong-ching, said re­cent calls for “Hong Kong in­de­pen­dence” had demon­strated the im­por­tance of such a law — par­tic­u­larly in an in­ter­na­tional city in China.

He said a na­tional se­cu­rity law was a “stan­dard set­ting” in most other coun­tries. “Hong Kong is a city of China, not of the uni­verse. It should not be an ex­cep­tion,” Hoo said.

The “one coun­try, two sys­tems” prin­ci­ple should not be an ex­cuse for not hav­ing a na­tional se­cu­rity law, Hoo ar­gued.

He also cited the ex­am­ple of Canada. “Que­bec uses a civil law sys­tem, which is to­tally dif­fer­ent from the com­mon law sys­tem used else­where in the coun­try. How­ever, they use a uni­fied na­tional se­cu­rity law,” Hoo added.

Zou Pingxue, di­rec­tor of Shen­zhen Univer­sity’s Cen­ter for the Ba­sic Law of Hong Kong and Ma­cao, said he ap­pre­ci­ated that some peo­ple had con­cerns about leg­is­lat­ing such a law. There­fore, he ad­vised the gov­ern­ment to di­vide it into a few sub-laws. It could then com­plete leg­is­la­tion “in batches”, with phase one, two, three, etc, ex­plained Zou.

He hoped a shift from “whole­sal­ing to retailing” the leg­is­la­tion would help the process of pass­ing it go more smoothly.


Peo­ple walk in front of the Court of Fi­nal Ap­peal in Cen­tral, which is the for­mer Leg­isla­tive Coun­cil build­ing.

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