A government proposal to assign lawyers to legal aid applicants by default instead of allowing them to decide who represents them may violate the Basic Law and the Hong Kong Bill of Rights, which guarantee Hongkongers’ right to choose legal representation, the city’s Bar Association has said.
At present, the Department of Legal Aid assigns lawyers to legal aid applicants in criminal cases unless under “exceptional circumstances.” But under the planned changes aid recipients would no longer be able to choose their own lawyers, according to a consultation paper tabled at the legislature in October.
The government also proposes placing a cap on the number of judicial review cases lawyers can take annually. The change will dispel misconceptions that individuals are legally entitled to nominate their preferred lawyers under the legal aid scheme, the government paper said.
‘Discriminatory’
The proposal reverses the existing policy, in which aid applicants’ nominations for legal representation would be accepted unless there are compelling reasons for the Legal Aid Department not to.
The changes “may constitute a violation of Articles 10 and 11 of the Hong Kong Bill of Rights,” the city’s barristers association said in a position paper released on Tuesday. The articles guarantee that any person shall be entitled to fair and public hearings, and will have adequate time to communicate with a counsel of their own choosing.
Article 35 of the Basic Law also states that Hong Kong residents shall have the right to choose their lawyers to ensure their lawful rights and their representation in the courts are guaranteed.
“Nothing in Article 35 of the Basic Law limits the right to choose lawyers only to those who can afford to pay their lawyers,” the Bar Association paper read. “Indeed, it would be discriminatory to say that this right applies only to those with sufficient financial means to pay for their lawyers but not to indigent or persons of limited means.”
The association said that the practice of applicants choosing their own lawyers will bring continuity of representation, better legal assistance and lower costs. It also ensures the “equality of arms” principle in judicial review cases, the body said.
The group also said it “does not see any justification” for the proposed changes, adding that the government singled out statistics relating to judicial review cases in 2020 to suggest that many cases are overconcentrated among a small group of lawyers.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
The mechanism has been popular among pro-democracy figures and groups seeking to challenge the authorities.
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