Press Release

 

 

Speech by the Secretary for Justice

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Following is the speech by the Secretary for Justice, Ms Elsie Leung at the Ceremonial Opening of the Legal Year today (Monday):

Chief Justice, Ladies and Gentlemen,

Two and a half years have passed since the Reunification. In that short period, many crucial legal issues have been addressed. These include the status of the Provisional Legislative Council, the adaptation of laws programme, the criminal jurisdiction of Mainland courts over cross-boundary activities, the right of abode issue, and the constitutionality of laws protecting the national and regional flags.

The Basic Law

These have been testing times. But our new constitutional order has stood firm. It derives much of its strength from the common law system and from common law values. That system, and those values, are preserved by the Basic Law. Article 8 provides that 'the common law ... shall be maintained'. Other articles refer to key common law concepts - such as the presumption of innocence, trial by jury, prosecutorial independence and the independence of the judiciary. Indeed, the Basic Law elevates some of these key concepts into directly entrenched constitutional rights - a status that they did not have before Reunification.

The Basic Law was designed to ensure that our common law system can endure - side-by-side with the very different system in the Mainland - within one country. In achieving this, the Basic Law necessarily contains some provisions relating to the Mainland system. In order that those provisions can be fully understood, and that issues affecting both jurisdictions can be handled smoothly, it is helpful for Hong Kong lawyers to develop an understanding of the system in the Mainland. It is encouraging to see that more and more practitioners are taking steps to do this.

NPCSC's power of interpretation

One feature of the Mainland system received much attention last year. That feature was, of course, the power of the Standing Committee of the National People's Congress to interpret national laws, including the Basic Law.

The interpretation of two articles of the Basic Law given by the Standing Committee in June last year has understandably been the subject of much discussion. It is clear that the interpretation was lawful and constitutional, and is binding on the SAR courts. Now that is settled, the implications of the power of interpretation ought to be considered rationally and professionally.

Independence of the Judiciary

The decision to seek the interpretation was endorsed by the Legislative Council. Those who disagree with that decision are, of course, perfectly entitled to criticise it, and to urge the SAR government not to make any further request. I hope, however, that members of the legal profession will not suggest that members of the judiciary are any less independent than before, as a result of the interpretation. Nothing could be further from the truth.

Judicial independence in Hong Kong is secured through internationally recognized mechanisms. Members of the judiciary are appointed in accordance with the recommendation of an independent commission. They have security of tenure. Our judges are of the highest professionalism, character and integrity. I am sure we all have the utmost confidence in their independence and impartiality. We know that all proceedings (including those by or against the government) are determined without fear or favour.

Judicial independence is not impaired if, after legal proceedings have concluded, the court's decision is affected by lawful acts of the Executive or legislature. It is well established under the common law system, for example, that the Executive may pardon convicted persons, and that the legislature may enact laws that reverse judge-made principles. The exercise of such powers is not regarded as undermining judicial independence. Nor should the exercise (in exceptional circumstances) of the power of the Standing Committee to interpret the Basic Law be so regarded.

In my view, judicial independence is not an issue in the debate over the Standing Committee's interpretation. Moreover, there is no reason why, in recent months, the issue of judicial independence should have been raised in respect of the results of individual cases. The fact that a particular case is decided against the government, or in favour of it, is of course no indication of the existence or non-existence of judicial independence. Nor should it affect the perception of such independence. Yet some commentators have suggested that the result of a particular case will affect the community's confidence in the judiciary. I trust that members of the legal profession will not encourage such a wrong-headed approach.

Suggestions that the government has subjected the courts to political pressure, or threats, based on the existence of the Standing Committee's power of interpretation are also unfounded. In certain situations, counsel acting for the government has a professional duty to tell the court that it may be required to seek an interpretation from the Standing Committee. The discharge of that duty in no way pressurises or threatens the court. It is for the court to decide, as a matter of law, whether or not it is required to seek such an interpretation, in the same way as it decides other questions of law.

Nor is the Standing Committee's free-standing power to interpret the Basic Law a "threat" to the courts - any more than is the Chief Executive's power to pardon convicted persons, or the legislature's power to amend judge-made law. Moreover, if (on rare occasions) the Standing Committee does interpret the Basic Law, it will be for the courts to decide whether that interpretation applies to a particular case and, if so, what its meaning is. The judiciary, the legislature and the Executive each has its own constitutional role to play. In my view, loose talk about "threats", "swords" and "daggers" is entirely out of place in this debate.

The Department of Justice

The past year has been a demanding one for the Department of Justice, and I wish to pay tribute to the fine work of my colleagues. Each division has dealt effectively with constitutional issues faced by the SAR. Law Drafting Division prepared thousands of pages of complex legislation, including the Bill to reorganise municipal services; International Law Division helped to negotiate new treaties, and assisted in the landmark case in the United States which establishes that SAR companies can sue and be sued in American federal courts; Civil Division conducted groundbreaking litigation, including the right of abode cases; Prosecutions Division also dealt with new issues arising after Reunification, including the flags case and the need to strengthen our capacity to prosecute Court of Final Appeal matters generally; and Legal Policy Division has provided excellent advice on Basic Law issues, helped to represent the SAR Government at two hearings of U.N. treaty-monitoring bodies, and assisting in implementing arrangements with the Mainland for the reciprocal enforcement of arbitral awards.

I am particularly pleased with the work of our cross-divisional Basic Law Litigation Committee which, in the last six months, has co-ordinated efforts in respect of Basic Law cases. Because of their constitutional importance, these cases require special research and preparation, and the combined efforts of many people. For example, when the flags case was appealed to the Court of Final Appeal, for the first time in Hong Kong, additional information, of a type known as a Brandeis brief, was prepared and submitted to the court. This brief - which follows precedents in the USA and elsewhere - was deployed in order to give the court a much broader factual background to constitutional issues than is possible in respect of other issues.

We are all on a steep-learning curve in relation to the implementation of the Basic Law, and none of us has all the answers. My department will continue to do its utmost to ensure that our new constitutional order operates smoothly. And I welcome a continuing dialogue with other members of the profession over issues of fundamental importance to the community.

Current work

Of course, my department advises not only on constitutional issues, but also on many other matters that are important to the legal profession or to the community at large.

We are represented on the working group that has been organizing the comprehensive review of legal education and training. I would like to thank the Law Society, Bar Association, and the two law faculties for their invaluable assistance on this project, which I am sure will be of benefit to the whole community. In an era in search of excellence, we should explore different avenues into which our law graduates may venture. For example, I believe that in-house lawyers will have an increasingly important role to play in the future. Not only will they be able to develop expertise in areas that general practitioners may be rarely exposed to, but they can also reinforce respect for the law, and for the rule of law, in the business sector.

If, as proposed, China enters into the World Trade Organisation, there are likely to be many opportunities for Hong Kong lawyers to give advice to Mainland clients. My department, together with the Law Society and Bar Association, is actively considering what can be done to assist our lawyers in seizing these opportunities.

Macau's reunification with the Mainland is another development that Hong Kong's legal system must take into account. In particular, mutual legal assistance between the two jurisdictions needs to be developed. My department will be looking into this, in addition to continuing to develop mutual legal assistance with the Mainland.

Hong Kong's own development frequently calls for expert legal advice. For example, the Civil Division of my department is playing an important role in respect of major projects, including Disneyland, the Cyberport, the reform of financial services and the privatisation of the MTR.

Hong Kong's trade and commerce in the 21st century will be greatly facilitated by the Internet. Our laws must facilitate this but, at the same time, criminal misuse of computers is a major problem that needs to be tackled. The Prosecutions Division of my department will be assisting in developing proposals to provide a safe and secure environment in which electronic business may be conducted.

Those items that I have just highlighted are, of course, only a small part of my department's responsibilities. They do, however, demonstrate that we are adopting a pro-active and constructive role in respect of issues affecting both the legal profession and the community at large.

The Profession and others

The evolution of our legal system since Reunification has involved the Judiciary, both branches of the legal profession, academics, and the Department of Justice. My department has at times been the subject of vigorous and unsparing criticism. I can assure you that, where criticism is legitimate and constructive, it is carefully considered and acted upon. But where criticism derives from misconceptions, it cannot be right to use it as a signpost for the future. To the extent that there are problems of perception, I accept that it is important to correct any misunderstandings by explaining the issues clearly to the public, but perception cannot be the basis of our decision-making.

I call upon members of the legal profession and other legal experts for their support in meeting the challenges of this historic time. We have a first-class legal system, a strong and independent judiciary and a legal profession that serves the community well. Together we can uphold the rule of law while enriching our legal system. The beauty of the common law is its ability to develop. Let us cherish that ability and welcome the growth of our legal system under the concept of 'one country, two systems'.

End/Monday, January 17, 2000

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