Comments

Cambodia

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper gives a good introduction for those who do not know too much about Cambodia’s legal system. It sets out very clear objectives relating to the rule of law, with the main theme on access to justice.

There is also a commendable summary tracing the history of the country, its developments throughout the years, all the efforts made in striving to achieve a better system, and finally explaining the present position on the law and legal system.

There is a clear description of the legal aid scheme, with an analysis of its features. The analysis is not in-depth, but demonstrates a good understanding of the problems and challenges ahead.

The proposed changes and constitutional amendments are clear but may need further elaboration to relate them to the main theme. A very good effort.

Mr CHAN Chak-Ming

High standard and efficient presentation on an interesting topic. Well-delivered. A good introduction to those not familiar with Cambodia legal system.

Hong Kong SAR

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The objective is well chosen: an examination and review of 3 topics: legal awareness, adjudication system and legal aid. These topics are related, with one leading to the other, all contributing to the rule of law and access to justice. One would expect an interesting, interlinked build-up discussion. However, the Paper is unfortunately often unclear, deficient, and superficial.

The history of the development of the legal system is unclear and scattered. There is not enough discussion or emphasis on Hong Kong practising the common law system since 1842 which has continued after 1997 and the common law’s goal to uphold the rule of law. Yet there are strange references to the Chinese legal system which has never been and is not practised in Hong Kong under the one country two systems policy. If there are any real concerns that this might happen, the reasons should be explained; otherwise this is totally unnecessary, irrelevant to or even misleading in the present discussion.

The discussion on legal awareness has several significant omissions and inaccuracies. The language of the law had only been English for more than 100 years for a population which is 95% Chinese speaking. This was changed: Chinese has become an official language since 1970s; bilingual laws have been introduced since 1985 and the bilingual court system has been actually implemented since early 1990s. These changes (which are not discussed in the Paper) have helped raise legal awareness which is conducive to access to justice. The discussion has also omitted the efforts of the Education Department, government bodies and various NGOs to introduce legal education in the schools and to interested groups.

While there is a brief summary of the many changes to the adjudication system during recent years to improve access to justice in compliance with international standards, one sees little discussion on the strengths and weaknesses of the common law system, especially the over emphasis on procedural fairness which had led to the civil justice reform.

There is a comprehensive summary of the legal aid system. But there is not sufficient discussion on the Legal Aid’s supplementary scheme or the Judiciary’s scheme to help litigants in person, both of which attempt to alleviate the difficulties facing the middle class people. Nor is there sufficient discussion on the Criminal and Law Enforcement Injuries Compensation Scheme for crime victims.

Generally, the Paper is somewhat disappointing since the stated objective should offer good grounds to develop a very good discussion paper, but it has strayed and got lost on the way.

Mr CHAN Chak-Ming

Clearly set out the basic framework of access to justice in Hong Kong. Paper could have looked at the uniqueness of “One Country, Two Systems” more namely Hong Kong being the only common law jurisdiction within China, embraces bilingualism (both Chinese and English are official languages) and how does this affect access to justice with a majority of Chinese speaking population.

Indonesia

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper sets out the objective of examining and analyzing the two marine legal institutions in Indonesia, and their interrelation with one another: Panglima Laot and the National Fisheries Court. This is a difficult target to meet because of the historical, religious, traditional and cultural background of Panglima Laot and the rather gradual development of the Fisheries Court as a response to meet present day needs.

To some extent, the Paper has succeeded in achieving this target by giving an interesting summary of both institutions, how they began, how they work in practice, their advantages and disadvantages and how the two influence, interact and interrelate with each other. However, the last point has not been adequately made out.

There is an attempt to analyze the reasons for the differences in the results provided by the two institutions, which is quite commendable. But the analysis does not go deep enough.

An effort is made to relate the working of these two institutions to the concept of access to justice which is the main theme of this Conference, but this is not sufficiently clear from the Paper.

There are some interesting suggestions to improve the two institutions and make them work hand in hand together, although, given the social conditions, they are rather vague and may need elaboration.

Mr CHAN Chak-Ming

A very interesting topic of “Fisheries Court” in a populated country with diverse culture. Eye-opener for those not familiar with the situation in Indonesia.

Macau SAR

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper sets out the objective of comparing the respective systems of legal aid and services in Macau, Hong Kong and Mainland China. The stated goal is to “learn” from the other systems and improve its own, which is very noble.

It manages to give a clear description of the 3 systems, noting the differences, advantages and disadvantages of each. It gives a summary of the laws and practices of the 3 systems. However, the description is superficial and deficient in some aspects, e.g. it should have given a fuller explanation of the judicial aid for civil servants in Macau and the rationale behind this policy, or the supplementary legal aid scheme in Hong Kong which is aimed at helping the sandwich class.

The analysis does not go far enough, e.g. one would like to see a fuller discussion of the rationale behind some of the policies and services provided and more on how the different systems work in practice.

The proposals for change are not sufficiently detailed, just suggesting the adoption of some of the laws and practices in the other 2 systems, without considering the different social and economic conditions of the 3 places and the suitability of adopting the same in Macau. A good effort though.

Mr CHAN Chak-Ming

A good comparative study of 3 different jurisdictions. Paper could have focussed on a particular area given constraint of words and time.

Mainland China

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

This is a good and well prepared paper, although the stated objective is, at first sight, somewhat vague and not easily understood by those not familiar with the Chinese system. It discusses price fraud and how this is dealt with by the administrative regulatory system and the civil courts. But after a closer study of the Paper, it has become clear that what is discussed is closely related to the pursuit of justice for the ordinary consumers by pointing out the systemic conflict between the 2 parallel authorities which needs to be resolved in order to attain the rule of law in terms of greater fairness.

The Paper provides a comprehensive description of what is meant by price fraud, how this is dealt with by the Administrative Regulators and in the civil courts respectively and how these two mechanisms can give different results. The description is quite properly supported by the relevant law and decided cases.

There is an attempt to analyze the two mechanisms and seeks to explain why the results are different, how this has confused the general public, and why this may affect public confidence in the system. The analysis however has not been able to tackle the real problems which go deeper than the mere difference between criminal and civil law; but may also stem from the cultural approach towards disputes resolution and the people’s trust in the administration and the courts.

The suggestions made are thus rather superficial and remain to be laid out in practice. The real problems may well require some basic structural changes to the system. The Paper brings out a social problem which relates to administrative law and access to justice to the courts. A very good attempt.

Mr CHAN Chak-Ming

A good choice of topic to relate price fraud and access to justice and also conflict between administrative law, civil law and criminal law on this area.

Malaysia

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper aims to discuss the interesting but difficult situation where there is a dual system of laws in a multi-racial, multi-religious and multi-cultural nation: Shariah laws and national laws. To some extent, it has succeeded in achieving this objective.

It gives a clear and succinct summary of how the Shariah laws and traditions have been applied in the Shariah courts and how the national laws have been applied in the ordinary courts, noting some overlapping areas, some of the conflicts arising from different decisions and how, over the years, the Federal Constitution has tried to resolve the differences, by e.g. giving powers to the states to set up legislatures which confer powers to make Islamic laws. The use of decided cases to illustrate the points made reflects the efforts made in research.

The suggestion is that the Shariah laws and common law can run concurrently and harmoniously. It offers reasons for its propositions. It also makes proposals, such as introducing more constitutional changes, developing a more civil inclusive society, having better legal education, and a balance between rights and duties, although some of the proposals may seem somewhat ambitious.

A very good paper giving a clear picture, with some insights of the situation, proper use of research materials and a good analysis.

Mr CHAN Chak-Ming

Intriguing topic on conflict within a multi-racial/religious dual legal system. Impressive presentation with good use of examples.

Mrs Perenami MOMODU

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Mongolia

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper seeks to discuss the constitutional developments of the country in the past century (since 1914). It analyses the progress made throughout the years, pointing out the shortcomings and the areas for further improvements.

It starts with the situation in 1924 and moves onward to 1992 and notes the guarantee on fundamental values, the rule of law and human rights. It gives a clear description of the constitutional changes in 1992 and the important amendments in 2000 and 2019, including the need for and nature of the amendments, the factors which are relevant to the changes and the effects on the country’s social and economic conditions. It shows a good understanding of what the problems are.

There is however not sufficient discussion on the relationship between the constitutional changes and access to justice, especially how they can or should promote the development of an independent judiciary.

A very good and diligent attempt with limited sources of materials.

Mr CHAN Chak-Ming

Good description of Constitutional history of Mongolia. Suggest to focus more on the amendments to the Constitution and impact on the rule of law and access to justice.

Singapore

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The objective is clearly stated and the two topics discussed relate to the rule of law/access to justice. However, these topics are quite wide in scope and are not directly linked: the first deals mainly with the legal aid position for the socio economic class while the second with the adequacy and implementation of the law in protecting the racial and religious groups. The Paper is quite ambitious which has resulted in a lack of in-depth analysis in some of the matters discussed.

But generally, the Paper has succeeded in giving a clear and succinct picture of the key features of the two topics, with reference to the relevant law and authorities demonstrating good research skills. The discussion is capable of raising the interest of the reader but there are some matters which can be further explored.

Generally, the analysis is also good, the criticisms and suggestions are sound, but the Paper can explain more on some of the assertions made: e.g. the government’s reasons for its reluctance in funding the defendants in criminal cases, the pros and cons and implications of setting up a Public Defenders Office; the distinction between racial and religious groups and their needs and problems.

Overall, quite a good Paper.

Mr CHAN Chak-Ming

Ambitious topic on legal aid system and minority rights in Singapore. Possibly too big a topic in a relatively short paper but great effort.

Mrs Perenami Momodu

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South Korea

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper discusses the problems involved in consensual arbitration and the possible ways of improving the situation by means of a Blockchain platform for the purpose of facilitating access to justice.

There are various reasons which give rise to the lack of wider use of arbitration as an alternative dispute resolution option. However, the Paper does not seize the opportunity to explore deeper into these reasons and to find out more solutions. Instead, it focuses mainly on the difficulty in having arbitration clauses or agreement. To this extent, the scope of the discussion seems to be somewhat narrow in scope.

The proposal by setting up a Blockchain platform (BIA) is brilliant and innovative. The Paper even suggests various forms of arbitration clauses and forms, applying new technology. That is quite a good attempt, giving support to what it is talking about.

The weakness in the proposal lies in the failure to consider adequately the position on the ground facing Small Medium Enterprises and to a much wider extent, ordinary consumers and overlooks the huge difference in bargaining power between the parties to the relevant contract.

Overall, a good attempt with a clever idea.

Mr CHAN Chak-Ming

Good topic to suggest using blockchain etc high-tech means to solve problems. Good presentation and recommendations.

Thailand

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The objective is clearly stated as: to illustrate the shortcomings of the law for undocumented migrant workers and to propose a future legal framework to encourage stronger protection for these people. The Paper has successfully achieved this objective by giving a full description of the practices, conditions and relevant law (or the lack of it) regarding these workers.

The Paper relates the discussion to the rule of law and access to justice by making reference to some of the fundamental rights to which workers are entitled, citing provisions in the international covenants and labour conventions, contrasting the domestic laws which have been made to protect workers. This demonstrates a sound understanding and awareness of workers’ rights. The discussion is quite impressive.

The major deficiency is the failure to draw the vital distinction between workers who have lawfully entered the country and have permission to work and those who have illegally entered with little identification documentation and simply started to work illegally. The implications on the nation’s resources and the concerns for national security for extending protection to this second type of workers may be quite burdensome, financially and politically.

The answer offered is that once inside the country, these illegal workers are also entitled to protection and what is more, Thailand is a country which welcomes foreign talents and workers. There is of course some validity in the argument. Whatever the merits of such approach, this affects the practicality of the suggestions and recommendations made. This seems to be a policy decision for the administration. However, all these are good materials which are not but could have been further explored in the Paper.

A very good discussion.

Mr CHAN Chak-Ming

Excellent topic about access to justice by illegal workers in Thailand. Good presentation with well-researched paper.

Vietnam

Comments by the Adjudicating Panel

The Honourable Mr Justice Patrick CHAN Siu-oi, GBM

The Paper seeks to discuss the past, present and future developments in Vietnam of the concept of civil society in the sense of having an inclusive society, with a view to improving access to justice.

In defining the concept of civil society in terms of human rights and freedoms, with reference to international covenants and domestic laws, the discussion shows a sound understanding of the topic.

It gives a good description of the laws, practices and the present situation, setting out the limited role which can be played by NGOs and the restrictions imposed by the government, comparing some of the conditions and domestic laws with provisions in the international covenants.

There is a good summary of the constitutional changes throughout the years. The progress has been gradual and the Paper acknowledges that the situation is lagging behind and requires improvement.

It candidly discusses the problems facing the government, the NGOs and the people but gives credit to the government for its efforts to improve the situation, referring to the amendments to Constitution from 1946 to 2013.

Its suggestions are constructive and show a positive outlook for the future.  A very well considered piece of work.

Mr CHAN Chak-Ming

Brave topic to touch on sensitive issues of becoming inclusive society. Good attempt to tackle a difficult topic.