Press Release

 

 

LC:CS' speech in motion debate on vote of no confidence in SJ

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The following is the speech by the Chief Secretary for Administration, Mrs Anson Chan, in the Legislative Council's motion debate on vote of no confidence in the Secretary for Justice today (Thursday):

Madame President,

I have listened very carefully to the views expressed this morning and this afternoon. It is clear to me that there are strongly held views about the issues that are under debate. Whilst I do not agree with all the views expressed, I also understand that these views have been expressed out of the deep concern for the rule of law. I hope to tackle this specific matter later on in my speech. But I have to say at the outset that the administration opposes this motion.

We do so not because we dispute Honourable Members' right to move and debate it. I believe that this is the meat and drink of a free society - but because we find it unfounded and, frankly, unfair to a dedicated and diligent public servant. Moreover, some Members have brought into question the SAR Government's commitment to the rule of law. I reject this charge outright.

Madame President, there are two main issues at the heart of this debate. The first is the Aw Sian case and the argument is to whether or not she should have been prosecuted in the Hong Kong Standard conspiracy trial.

The second revolves around the controversy which followed the Court of Final Appeal's ruling on January 29 on the right of abode case, and our approach to the CFA seeking clarification of certain parts of its ruling.

It is not for me to deal with these matters from a legal perspective. That have already been done by my colleagues, the Secretary for Justice and the Director of Public Prosecutions. I would only note that I would be the last to lightly brush aside the views of members of the legal profession on either issue. I believe that on important legal and constitutional issues honest differences of opinion and robust exchanges between our lawyers are entirely healthy and should continue to be encouraged.

The Aw Sian case is a good example of that. As I have made plain, I do not intend to add to the clear explanation given on this matter by the Secretary for Justice on this and several other occasions other than to emphasise that her decision rested on insufficient evidence. But I do remind Honourable Members of her response to the allegation that her decision confirms that people in high places have received special treatment, or that there is one law for the rich and one for the poor. The Secretary for Justice vigorously affirmed that nothing could be more abhorrent to her. And while decisions on prosecutions are a matter for the Secretary for Justice alone, those sentiments are shared equally by the Administration. We need to be ever mindful of the principle which guided the late Lord Denning , when he said: "Be you never so high, the law is above you."

In the final analysis the Secretary for Justice's decision came down to a matter of judgment. The fact that others might have come to a different conclusion is neither here nor there. Neither I nor anyone else should second guess her judgment. Article 63 of the Basic Law makes it clear that the Department of Justice decides on prosecution, free from interference. We must observe this article to the letter.

Madame President, let me now deal with the CFA issue. In the potentially politically - charged atmosphere which followed the CFA's ruling, the Secretary for Justice went to Beijing to reflect the views of Hong Kong people and the local legal profession, to explain the ruling and to seek a better understanding of the concerns of the Mainland authorities. Was this the wrong thing to do? Would it have been better to shout at each other from opposite sides of the boundary? Or worst still to precipitate a constitutional crisis? I think not.

Last Friday, the Secretary for Justice gave a full account to the House Committee of this Council of her recent trip to Beijing and of the application to the Court of Final Appeal. She explained how she had reflected Hong Kong's concerns and comments to Beijing; she explained that the application for a clarification was properly made. There is nothing sinister in giving advance notice to the Chief Justice of our probable and then firm intention to do so. The Chief Justice after all needed time to assemble his court, including a distinguished judge from Australia. The court has made it clear that it was acting within its inherent jurisdiction in issuing a clarification which did not depart from the original decision. The Secretary for Justice also made it absolutely clear that no political pressure whatsoever was applied to the court. The independence and impartiality of the court remain intact.

No one can seriously suggest that the eminent judges of our Court of Final Appeal would allow themselves to fall prey to political pressure from this Administration, or from anyone else for that matter. For myself, and I speak for the entire Administration, I have nothing but the deepest respect for the Court of Final Appeal. Indeed, shortly after the Court delivered its judgment on the right of abode issue, I made it clear in a public statement that we respected the Court's decision and would act accordingly.

Madame President, as these matters - in particular the constitutional aspect of the CFA judgement - have created such interest and concern both here, in the Mainland and internationally, I hope you will allow me a few moments to try and put this matter in its proper perspective.

It is but 20 short months since we became a Special Administrative Region of the People's Republic of China under the principle of One Country Two Systems that some people thought would simply not work, notwithstanding the very detailed signposts so carefully put in place firstly by the Joint Declaration and, then, the Basic Law. The Basic Law is, to all intents and purposes, our constitution. It is also, crucially, an instrument of the sovereign. It would be idle to pretend that the sovereign has no interest in its application.

I think we all agree that the Basic Law provides as firm a foundation as this community would wish to see our free and open society preserved and nourished. But it is not perfect. No constitution is. That is why there must be constitutional mechanisms to adjudicate where there is doubt or discrepancy or dispute. This fundamental point is further complicated when two such different socio-economic and legal systems exist within one country.

So it should come as no surprise that in these circumstances, sooner or later an issue such as the CFA ruling would trigger the need for debate, explanation and, dare I say it, perhaps even clarification. The different reactions to the CFA judgement, both locally and in the Mainland, and our seeking the necessary clarification, are examples of how we are feeling our way and finding our own solutions in a totally new order which involves sensitive political and constitutional interplay in this bold but novel concept of One Country Two Systems.

At the very beginning of this speech, I rejected outright the notion that this Administration is not committed to the rule of law. We know precisely what is meant by the rule of law. We understand and accept that it means the subordination of the three arms of government - the executive, the legislature and the judiciary - to legal process and equality before the law. It also means the absence of arbitrary executive power. The rule of law to Hong Kong is not a cliche or a slogan. It is the very foundation on which the community has been built. It has protected our freedom and underwritten our progress and prosperity.

That is why I can assure Honourable Members that in the matters at issue we have acted out of principle, not expediency; we have acted not to undermine the rule of law, but to observe it; and we have acted not to challenge the independence of the judiciary, but out of respect for it.

It is only right that, in a debate of this nature, we should consider the significant contribution that the Secretary for Justice has made to the smooth transition, to the faithful implementation of the Basic Law, to upholding the rule of law and the independence of the Judiciary.

Members should remember that the success of 'one country, two systems' depends on each of the jurisdictions understanding the other's legal system. In this respect, the Secretary for Justice has played a key role. She has a deep understanding of both systems. She is able to explain our system to Mainland authorities and to understand how the Mainland system differs from ours. The process of developing mutual understanding and trust is difficult, but it must be undertaken. The Secretary for Justice has fulfilled this role with sensitivity and persistence. I have no doubt that her work in this respect will be fruitful.

This Council is not a court of law, but it is the place where we make our laws. It is also the place where we synthesise the views of the community in free and open debate. In that sense, it is a court of public opinion. We weigh our words carefully, and Members cast their votes conscientiously, knowing that it is not just our own community, but the wider world outside that judges Hong Kong by these words and actions.

Madame President, a motion of no confidence in the Secretary for Justice is a most serious matter. Members should not vote in favour of it merely because they would personally have approached certain questions in a different manner from the Secretary for Justice. The Administration has full confidence in the integrity of the Secretary for Justice and in her commitment to the rule of law.

Madame President, I urge Honourable Members to say no to this motion.

End/Thursday, March 11, 1999

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