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Following is the speech by the Acting Solicitor General, Mr Robert Allcock at the American Chamber of Commerce luncheon today (Tuesday):
Mr Zinke, Ms Ng, distinguished members of the American Chamber of Commerce, ladies and gentlemen,
Common law system
The Hong Kong SAR and the USA share a common heritage - their legal systems are both firmly based on the common law system. Although the common law was, of course, originally developed in England and Wales, it was subsequently exported around the world and has taken firm root on every continent.
The common law as practised in Hong Kong is not identical to that in the USA. Indeed, one of the strengths of the common law is its ability to adapt to meet the needs of each particular jurisdiction. But although the details vary from one common law jurisdiction to another, they share certain key features.
What are those key features? The first is that many basic principles evolved, and continue to evolve, as judge-made law. Those principles originally emerged from decisions of judges in England and Wales, but now they are developed by courts throughout the common law world.
Another feature of common law jurisdictions is that, as a general rule, judge-made principles can be displaced by legislation. Modern communities could not function without legislation, and it is generally not regarded as improper, or disrespectful of the judiciary, to legislate in a way that contradicts common law principles. Taxation, and licensing systems, are too obvious invasions of freedoms that were recognized at common law.
But, looking beyond the detailed principles established by the judges, one can say that the common law is underpinned by certain core values that are deeply cherished - the rule of law, the presumption of innocence, respect for human rights, and so on. Any attempt to displace these core values will be met with very strong resistance, particularly by members of the legal profession. In some jurisdictions (including the USA) those values are entrenched in a constitution, and are protected from being swept away, or undermined, by ordinary legislation.
Hong Kong before Reunification
Let me now turn to the application of these principles in Hong Kong, first in the period before Reunification. The common law applied by virtue of the Application of English Laws Ordinance. It could, however, generally, be displaced, both by local legislation and by British legislation that applied to Hong Kong. The core values that I have referred to were generally observed but, until 1991, they were not entrenched in any way. As a result, they were undoubtedly some aspects of the law that were inconsistent with those values. For examples, there were some criminal offences that required the defendant to prove his innocence in respect of some element of the offence.
The situation improved in June 1991, when the Bill of Rights Ordinance was enacted, and the Letters Patent - Hong Kong's colonial constitutional document - was amended to prohibit the enactment of laws that contravened the International Covenant on Civil and Political Rights as applied to Hong Kong. Following those developments, a comprehensive review of the Laws of Hong Kong took place in order to bring them into line with those human rights guarantees.
The Basic Law
The Letters Patent and the Application of English Laws Ordinance, ceased to apply after 30 June 1997. In their stead, we of course have the Basic Law. How does this affect the application of the common law in Hong Kong?
The starting point in answering that question is Article 8 of the Basic Law, which reads as follows.
'The laws previously in force in Hong Kong that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.'
The fact that the laws previously in force, including the common law, are subject to amendment by the legislature is a reflection of the general principle that I referred to a moment ago. However, there are restrictions on that power of amendment. In particular, Article 11 of the Basic Law provides that 'No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.'
How does this help to preserve our common law system? It does so in two ways. Firstly, many of the core values of the common law - the presumption of innocence, freedoms of expression and association, the right to a fair trial and so on - are guaranteed by the International Covenant on Civil and Political Rights, which is entrenched by Article 39. As a result, no law can be enacted that restricts the rights and freedoms enjoyed by Hong Kong residents in a way that contravenes that Covenant.
Secondly, there are many other Articles in the Basic Law that guarantee other core values and attributes of the common law system. These include -
* an independent judiciary with security of tenure (Articles 2, and 80 to 93)
* reliance on precedents from other common law jurisdictions (Article 84)
* an independent public prosecution service (Article 63)
* the right to compensation for lawful deprivation of property (Article 105)
* the use of the English language, in addition to Chinese, in the courts (Article 9)
It is clear that the Basic Law contains guarantees that are fully justiciable. As I'm sure you know, since Reunification there have been a number of high-profile cases in which litigants have challenged legislation, prosecutions, or administrative decisions as being contrary to the Basic Law and, in some cases, have succeeded.
Subject to the Basic Law
I suspect that many of you may now be thinking of the right of abode litigation, in which the litigants succeeded on some points before the Court of Final Appeal, and subsequently the Chief Executive sought an interpretation from the NPCSC. Many people, including the Hon Margaret Ng, have criticised that development as undermining judicial independence and the right to a fair trial. As you know, the Government does not accept that criticism and, if anyone wishes me to explain our position again, I will be happy to do so.
But for now, I wish only to put that event in context. The Government has consistently emphasised that the seeking of the NPCSC interpretation was an exceptional measure to deal with a highly exceptional problem - a possible 25% increase in our population over a decade or so. We have consistently stated that we would not seek another such interpretation, save in other highly exceptional circumstances.
I would also emphasize that the NPCSC's power of interpretation relates only to the Basic Law. The NPCSC has no power to interpret Hong Kong's own legislation, or the common law principles that are the foundation of our system. Those of you who are involved in litigation will know that the vast majority of cases do not turn upon the meaning of the Basic Law. And if you do have a case that involves an interpretation of the Basic Law, and you take it to the Court of Final Appeal and win, there is no risk of the judgment in your favour being overturned. The Court of Final Appeal retains the power of final adjudication and, even if the NPCSC were ever to interpret the Basic Law in a different manner, this would not affect the Court of Final Appeal's judgment in your favour.
Change and continuity
Let me conclude these opening remarks by suggesting that the new constitutional order involves both continuity and change. I have no doubt that our common law system will endure, but some aspects of it will be affected by the Basic Law. Indeed, critics of the government were the first to say that a particular common law principle had not survived reunification. The principle I refer to, which applies in almost all common law jurisdictions, is that legislation does not bind the Crown, or the relevant sovereign government, unless this is provided for expressly or by necessary implication. The Government was criticised for insisting that this common law principle had survived Reunification.
There will clearly be many areas of controversy in these early years after Reunification, as we come to terms with both continuity and change. But as I said a moment ago, I personally have no doubt that the common law will endure.
End/Tuesday, November 30, 1999
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