The lack of an adequate number of prosecutors serving under the Department of Justice (DoJ) is one of the reasons cited for the delay in prosecutions in Hong Kong. Today the DoJ is also criticised for spending large sums of government money on hiring foreign lawyers, on a case-by-case basis, to undertake prosecutions in Hong Kong.

This practice, especially in politically sensitive cases, could be viewed as a method for maintaining neutrality and independence. However, it has already attracted criticism from the local Bar. This criticism has been limited to asking the DoJ why it has not approached local lawyers to undertake prosecutions before approaching foreign practitioners.

ken tsang
An overseas counsel was consulted in the case of Ken Tsang. Photo: Stand News.

In fact, approaching foreign practitioners to undertake prosecutions in Hong Kong is an issue deeper than that of local lawyers missing out on opportunity. It is the responsibility of the government to ensure that the DoJ is equipped and adequately resourced to attract the best talent in the profession to work for it. Delays in prosecution, resulting from the absence of adequate state funding, is one of the cancers that could, over time, destroy the reputation of the DoJ and eventually the common person’s trust in the criminal justice process.

donald tsang
The investigation of Donald Tsang took over three years. Photo: Stand News.

The justice process, particularly the day-to-day functioning of Hong Kong’s criminal justice institutions, have a direct influence upon people’s trust in their government. In most Asian countries, it is the defects within the justice process – exploited by the powerful elite including political parties that form governments to their undue benefit – which have resulted in people losing trust in their institutions.

court of final appeal
The new home of the Court of Final Appeal. Photo: Wikicommons.

For example, in Bangladesh, governments are infamous for “hiring and firing” prosecutors to suit political agendas. In India, vacancies at the prosecutor’s office can remain unfilled for years, contributing to an already clogged justice process that is ridiculed for decades-long delays in the completion of trials. Similar or worse conditions exist in the Philippines, Indonesia, Nepal, Sri Lanka, Thailand, Cambodia, and Pakistan.

In China, indeed, the Supreme People’s Procuratorate, an agency that exercises more power in its namesake justice process, is one of the pieces in the labyrinth of State run machinery that serves the people in power far more than the ordinary citizen. It is the State control of the Procuratorate that helps the government to maintain Chinese trials in its current state, a process akin to the Vyshinsky-era Soviet Union.

Supreme People's Procuratorate
Supreme People’s Procuratorate. Photo:

Prosecutors also play a vital role in formulating the prosecution policy in a jurisdiction. Prosecution policy is a vital ingredient in the social engineering role justice institutions play in any given jurisdiction. Hiring foreign lawyers to undertake prosecutions in vital cases can also degrade, if not destroy, the process of formulating and improving meaningful prosecution policies.

There is no second opinion that the linchpin that holds Hong Kong together in its current form and shape is the quality of the justice process the territory offers. It is the guarantee of justice and the rule of law that places Hong Kong and maintains it in the global centre stage as one of the unique jurisdictions in Asia. All of this could be lost, if Hong Kong’s justice institutions fail to meet people’s expectations. While it is the government’s responsibility to maintain and further improve Hong Kong’s justice institutions, the people of Hong Kong also have a responsibility to raise their voices, to ensure that their state institutions are well maintained to meet the needs of the public.

Bijo Francis is a lawyer from India. He is the Executive Director of the Asian Human Rights Commission, Laureate of the Right Livelihood Award, 2014, also known as ‘The Alternative Nobel Prize’. Bijo’s research interests include constitutional law, legal theory, human rights law & practice, and history. Before joining the organisation he was a partner at ABA Associates and has litigated for Fortune 500 companies like SBI, BPCL, TATA Motors, and IOC.