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Following is a speech by the Secretary for Justice, Ms Elsie Leung, in the debate on the "Motion of Thanks" in the Legislative Council today (Wednesday):

In her speech on the Motion of Thanks, the Hon Margaret Ng touched upon a number of issues relating to the legal profession and the administration of justice. I would like to reply to some of her comments.

The legal profession

First, the legal profession. The Administration regrets the fact that many practitioners, like other members of the community, are suffering from the economic downturn. Those who, in the past, mainly provided conveyancing services are worst hit. This is inevitable when the volume of property transactions declines drastically. No system of mandatory scale fees could, or should, keep conveyancing fees at an artificial level. As Ms Ng said, 'the cost of services must be allowed to find its own level'.

The Administration supports the profession's efforts to build up a strong local legal profession with highly competitive skills and exposure. It has been taking the lead in removing restrictive practices and anti-competitive rules that have, in the past, been barriers to such a development. It supports the efforts of the President of the Law Society to encourage solicitors to diversify their practices and to specialise. It also welcomes the Bar Association's plans to remove criteria for the admission of barristers that are discriminatory and protectionist.

The Administration has, for many years, been promoting a more long term view of the legal profession - for example by initiating the debates on the admission of foreign lawyers, and on multi-disciplinary practices. There are now encouraging signs that the professional bodies accept the need to find ways of delivering legal services that are more cost-effective, competitive and convenient for consumers. I am sure that this can be done without sacrificing professional standards or independence. On many occasions I have discussed with and encouraged members of the profession to explore into the field of mediation and insolvency practice and made suggestions for the training and qualification of mediators. I shall continue efforts in the promotion of these areas of practice.

With regard to legal education and professional qualifications, the Administration supports the efforts of the Universities and the profession to introduce improvements in these areas. This support is conveyed through various channels, such as my membership of the Chief Executive's Advisory Committee on Legal Education, and my department's representation on working parties relating to professional education. We share a common goal of ensuring that our future lawyers will have the knowledge, skills, principles and vision to make Hong Kong the leading centre for legal services in this region.

The rule of law

Ms Ng also discussed the rule of law. She asserted that this Government has shown 'scant respect for the rule of law'. This assertion is totally unjustified and is rejected by the Administration. I am afraid that the examples of disrespect for the rule of law given by Ms Ng are misconceived.

Let us consider her so-called examples. First - and I quote - 'The ill-founded interference with the rules of procedure of this Council'. As members know, the Administration considers that some aspects of the rules of procedure do not comply with the Basic Law. This being so, the Administration informed this Council of its views in order that the Council could consider amending the rules. This was an attempt to ensure the observance of the rule of law, not 'interference' or disrespect for the rule of law.

The second so-called example given was the proposal to abolish the municipal councils. As members know, that proposal has been the subject of a public consultation exercise and the councils can only be abolished in accordance with properly enacted legislation. Everything is being done in accordance with the law and proper procedures. The Administration has not been, and will not be, disrespectful of the rule of law in this exercise.

The third so-called example given is the Government's refusal to disclose its shareholdings in listed companies following the intervention in August. As Ms Ng mentioned in her speech, officials have told this Council that the Government is not bound by the Securities (Disclosure of Interest) Ordinance. This reflects the legal advice given by my department. Ms Ng may disagree with that advice. But, by alleging that the government is disrespectful of the rule of law, Ms Ng equates the rule of law with the rule of her interpretation of the law. This is not fair.

The Administration has made it clear on innumerable occasions that it is committed to the rule of law. If it ever contravenes the rule of law, I hope that there will be an outcry. If the Administration ever acts unlawfully, I hope it will be hauled before the courts. However, by alleging disrespect for the rule of law when there is none, Ms Ng devalues the meaning of that concept. I am sure that this cannot be her intention.

Adaptation of laws

Another important subject mentioned by Ms Ng was the adaptation of section 66 of Cap.1. Regrettably, she misrepresented the effect of that adaptation. It did not, as she stated, make the 'State' not bound by Hong Kong laws. What it did was to adapt the principle that the 'Crown' is not bound by an Ordinance unless it contains an express provision, or a necessary implication, that it is bound. Much of the public concern over that adaptation has been caused by a misunderstanding of its nature and effect. I look to members of the legal profession to correct, and not contribute to, that misunderstanding.

The question whether the adaptation of section 66 was consistent with Article 22 of the Basic Law continues to be debated. The Administration has explained, and will continue to explain, why it considers that it is so consistent. Its basic position is that the principle in section 66 was not abolished by the Basic Law, but merely needed to be adapted. Recently, after several months of consideration, the Law Society announced that it agrees with the Administration's basic position.

In adapting the rest of the statute book, the Administration will build upon that position. The adaptation programme is not an exercise in law reform.

Before I move on to another topic, I would like to make it clear that I welcome a lively debate on the issues I have discussed. The rule of law and the adaptation of laws programme are matters of great importance to the community. I encourage anyone who is interested to participate in the debate. Although I have explained why I disagree with some of Ms Ng's comments, I would be the last one to discourage her from seeking to uphold the rule of law. I share her objectives, even though I may sometimes disagree with her comments.

The Solicitor General

Madam President, the Hon Emily Lau, the Hon Yeung Sum, and the Hon James To commented on the selection of the next Solicitor General.

Until the identity of the next Solicitor General is formally announced, I cannot comment on his or her qualities. However, I can assure members that the recruitment of the Solicitor General has been conducted in strict accordance with Civil Service criteria and procedures. The duties attaching to the post were set out in the advertisement inviting applications. This also explained that candidates should -

* be qualified either as barristers or solicitors in a recognised jurisdiction;

* possess considerable knowledge and experience of legal practice in Hong Kong at a senior level;

* possess an ability to produce constructive ideas for the development of legal policy;

* possess excellent qualities of judgement and leadership. Management experience will be a considerable advantage;

* have good communication and inter-personal skills

and that an ability to speak, read and write Chinese would be a clear asset.

These criteria were applied strictly by the Selection Board. The Board interviewed a total of ten candidates including both internal and external applicants. This was a departure from previous practice whereby only external candidates were interviewed and internal candidates were assessed according to their annual performance appraisals. The decision to interview all candidates was to provide an equal opportunity to all and to ensure uniformity of assessment. All candidates were invited to give their views on the role of the Solicitor General and how they perceived the future development of the office.

The Board was chaired by me with members drawn from the Civil Service Bureau and Department of Justice. The Chairman of the Public Service Commission took part as observer. The Board has put forward its report to the Civil Service Bureau. An announcement will be made following the completion of appointment procedures.

Regardless of who the successful candidate may be, there is no reason why a person's political views or status should be an obstacle to appointment as Solicitor General. I am surprised that objection to a candidate's political inclination should come from those Honourable Members who have always advocated freedom of conscience. Furthermore, I give my assurance that the person recommended for appointment by the Selection Board was not chosen because of the political position he or she has taken.

End/Wednesday, November 4, 1998

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