Legal system ‘still requires improvement’
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.
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.