ROLE Essay Competition
In a society plagued by prejudice, how do we ensure that human rights are protected? Chief Justice Ma noted, in 2015, that the starting point to this is an acceptance that everyone is equal before the law.
Equality before the law, by definition, means that no person, group of persons or organisation can claim to be above the law nor to enjoy any preferential treatment by the courts. This essay will inquire how Article 25 of the Basic Law – “All Hong Kong residents shall be equal before the law.” – safeguards the rights of Hong Kong citizens and delivers justice through two approaches.
The first method is by eradicating discrimination on any grounds. In the case Equal Opportunities Commission v. Director of Education, the Commission challenged that school allocation based on the Government’s Secondary School Places Allocation System depended partly on gender. The Court reached the conclusion that the System amounted to unlawful discrimination, seeing that the scaling and banding mechanisms treated boys and girls separately. The gender quota in co-educational schools was taken into account as well. Here, Article 25 ensured that both genders had equal access to education, and that neither sex was disadvantaged.
Article 25 of the Basic Law also deems sexual orientation discrimination unconstitutional. In the case Secretary for Justice v. Yau Yuk Lung, the respondents were charged with having committed buggery with each other in a private car parked beside a public road. Despite this, the Court ruled for the defendants. It suggested that since only homosexuals, but not heterosexuals, were subject to the statutory offence, Article 25 was violated as differential treatments were aroused on the ground of sexual orientation. Therefore, the dignities and rights of the defendants were protected by Article 25 since it prevented discriminatory treatment from being induced, sustaining gay rights in Hong Kong.
Of course, the impact of Article 25 is comprehensive – apart from impeding discrimination on the grounds of gender and sexual orientation, it is also inclusive to an extensive range of social groups, such as ethnic minorities, the disabled and indigenous people.
Aside from abolishing discrimination, Article 25 also delivers justice by ensuring that even the most powerful are subject to the law. In 2014, Hong Kong’s former Chief Secretary for Administration Rafael Hui was charged with misconduct in public office and bribery – before he assumed office, HK$8.5 million were secretively made into his bank account from property tycoon Thomas Kwok to secure his favourable disposition. Moreover, in 2017, Donald Tsang, the former Chief Executive, was found guilty on one charge of misconduct in public office after failing to disclose his plans to rent a luxury penthouse in Shenzhen.
In both cases, the defendants were key leaders of the government – they were influential and wealthy. Yet, before the law, they were treated no differently from the meek and humble. Both court cases show how the Judiciary is completely independent of the government – no one, not even the Chief Executive, can perform an illegal act unless he can justify it, thus reinforcing the idea of “equality before the law”. If Article 25 ceases to exist, the powerful will be able to exercise and abuse their power arbitrarily.
However, Article 25 is not without a flaw in practice. Litigation costs are often exorbitant, meaning only the rich can afford the best legal services. Despite provisions of legal aid, such as the Duty Lawyer Scheme, they are often inadequate. According to a report by major law firm DLA Piper, the average defendant had just 15 minutes with their duty lawyer before the start of a court hearing. Moreover, of the 1064 legal aid applications submitted for judicial review proceedings in 2017, just 29 were approved by the Legal Aid Department. To many grassroots, not only is the legal process complicated and time-consuming, but they also fail to receive sufficient legal support. Therefore, only a handful of cases involving discrimination have made it to the courts over the years. Can equality be fully justified in a system where the rich enjoy better legal representation than the poor?
Having said that, this argument is still insufficient to undermine the importance of Article 25. Imagine a society where men commit rape without worries, where employment depends on one’s colour, where the authoritative overrides the law. Without this article, our society will plunge into discord and tumult. Article 25 is the cornerstone of Hong Kong’s rule of law, the basis of human rights provision and the key to a congenial society where social justice is timely delivered.
Lady Justice wears a blindfold. No matter who you are, what you do, where you come from, before the law, you and I are treated impartially.