Legal experts have warned that a blanket ban by the government on an elderly citizen from applying for legal aid over the next three years could be unlawful and unconstitutional.
Kwok Cheuk-kin, 78, was informed of the decision Tuesday by the Legal Aid Department (LAD). The LAD said Kwok had made 21 legal aid applications over the last three years, 11 of which were rejected. Of the 11 rejected cases, six were again rejected or withdrawn upon appeal.
Under Regulation 11 of the Legal Aid Regulations, the director of legal aid may put a blanket ban – for a maximum of three years – on anyone who has been rejected on four or more occasions and is regarded as abusing the legal aid system.
But legal experts say the decision may be unconstitutional. Article 35 of the Basic law gives Hong Kong residents the rights to access the courts and bring legal proceedings against the acts of the government.
Lawyer Michael Vidler told HKFP that the “draconian provision” the LAD relies on should be balanced against Kwok’s constitutional right of access to the courts, given that he is a man without means.
“It should also be noted that over the last three years he has won at least one judicial review, been granted leave by the court in two others and has a pending appeal before the Court of Final Appeal where leave has been granted,” Vidler said.
“It could therefore possibly be argued that the imposition of a ban, especially a ban for the maximum period permitted by statute, is unreasonable and challengeable.”
Legal scholar Eric Cheung Tat-ming of the University of Hong Kong said on a Commercial Radio programme Friday that the decision appeared to infringe upon Kwok’s constitutional rights.
He said the ban would mean that the LAD would reject any application by Kwok even if he had justifiable grounds for a case, while accepting another person’s request over the same case. “That would be discriminatory,” he said.
“The ban targets not a case but an individual. I think it is very problematic and highly likely illegal.”
Cheung also said that Regulation 11 of the Legal Aid Regulations – a secondary legislation – may be outside the scope of power granted by the Legal Aid Ordinance.
Section 28 of the Legal Aid Ordinance enables the Chief Executive in Council to make regulations in order to better carry out the ordinance. It gives a list of permissible actions, but Cheung said none of them explicitly allow for a blanket ban to be imposed on an individual.
“The question is whether the Legal Aid Ordinance is intended for the Chief Executive in Council to set up rules that target individuals,” Cheung said. “I think it is debatable and [the ban] is likely beyond the scope of power provided for by the ordinance.”
Kwok indicated an intention to appeal the decision. Cheung said the LAD decision is not final and there is a chance the legal aid director may change its mind.
“But if it doesn’t, the next step will be file an appeal to a master [judicial officer]. At this stage, there is no need for a lawyer and virtually no cost is involved,” Cheung said.
“But if this also fails, Kwok will need to file a judicial review against the legality of the LAD decision,” he continued. “Then there will be an issue over whether he can apply for legal aid to challenge the decision of the Legal Aid Department.”
The LAD told HKFP that it had issued 28 orders under Regulation 11 last year.
Despite the ban, Kwok told HKFP earlier that he would continue with his judicial activism.
“I will keep seeking justice for others,” the 78-year-old said. “I do what I think is right. Even if the government succeeds in silencing me, there will be another Kwok Cheuk-kin.”
Kwok earned the nickname of “king of judicial review” for his judicial activism, but critics have argued that Kwok abused the judicial review system and wasted public money.