Speech by Secretary for Justice

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Following is the speech "The First Three Years of the HKSAR" delivered by the Secretary for Justice, Ms Elsie Leung, at a luncheon of the Hong Kong Democratic Foundation today (June 15):

Good afternoon, ladies and gentlemen. In 16 days' time, we will celebrate the third anniversary of the establishment of the Hong Kong SAR.

Those of us who have lived through these historic days in Hong Kong will be aware how smooth the transition was; how our way of life and freedoms have continued unabated; and how Hong Kong's promised high degree of autonomy has been faithfully respected. Yet, at the same time, we know that concerns have been raised about certain issues.

When we are immersed in a particular local controversy, it is sometimes difficult to consider it dispassionately and in perspective. The forthcoming anniversary provides an opportunity for us to get an overview of events during the first three years of the Hong Kong SAR, and to see their real meaning. I will seek to do this today in respect of our new constitutional order.

High degree of legal autonomy

We are so familiar with hearing the phrase 'a high degree of autonomy' that we may not question its true significance. Under the Basic Law, the Central People's Government is expressly responsible for the foreign affairs and defence of the Hong Kong SAR and certain other matters, such as the appointment of the Chief Executive and the principal officials of the SAR Government. Most other matters are within Hong Kong's autonomy.

In legal terms, Hong Kong has an extraordinary amount of autonomy.

Before Reunification, for example, the British Parliament could enact laws for Hong Kong on any subject and, by the early 1990's about 300 British laws applied in Hong Kong. In contrast, under the Basic Law, national laws can only be applied to Hong Kong if they relate to defence, foreign affairs or other matters outside the limits of Hong Kong's autonomy. Only eleven national laws currently apply to the SAR.

And if that comparison with the colonial era does not impress you, I would add that Hong Kong's legislative autonomy is higher than most, if not all, regional governments within federal systems. In federations, such as the United States of America, Australia and Canada, legislative power is divided between the central and regional governments. Almost invariably, the central government is empowered to legislate on a wide range of subject matters, and the powers of regional governments are restricted. In contrast, Hong Kong can legislate on almost all subjects within its high degree of autonomy.

Turning to the judiciary, Hong Kong has a power of final adjudication that was not enjoyed before Reunification, and is not enjoyed by regional judiciaries within a federal system. Before Reunification, some cases went on appeal to the Privy Council in London. In federal jurisdictions, certain cases can be appealed to a national court. In the Hong Kong SAR, the Court of Final Appeal has the final word in deciding the right of the parties to litigation before it. No appeal lies to Beijing, and even the Standing Committee of the National People's Congress cannot overrule the decision of the CFA in favour of one or other parties to the appeal.

This power of final adjudication - that is, deciding which party wins a case - must, however, be distinguished from the ultimate power to interpret the Basic Law. As I am sure you know, that power of interpretation is vested in the Standing Committee of the National People's Congress. Given that the Basic Law is a national law, and applies throughout the PRC, it is not surprising that the ultimate power to interpret it is vested in a national body. Again, one must appreciate that the role of the judiciary is to administer justice in accordance with the law. If the law is amended or authoritatively interpreted (as in the case of interpretation by the SCNPC), the court will have to adjudicate disputes in accordance with the law as amended or interpreted.

Continuation of the common law system

Another vital aspect of our new constitutional order is the continuation of the common law system in Hong Kong. The expression 'one country, two systems' neatly captures the fact that, within the People's Republic of China, two fundamentally different legal systems operate.

Some people have alleged that the common law system is under threat in Hong Kong. I do not believe that to be the case. On the contrary, I believe that the common law is better protected under the Basic Law than before Reunification.

The common law consists both of detailed, judge-made, rules and certain core values - such as the independence of the judiciary, the presumption of innocence and respect for human rights etc. However, in the absence of any entrenched protection of these rules and values, they can be displaced by legislation.

Until 1991, the constitutional instruments relating to Hong Kong - the Letters Patent and Royal Instructions - contained no such entrenched protections. In that year, the Letters Patent were amended to prevent laws being enacted that contravened the International Covenant on Civil and Political Rights. However, apart from this, common law principles were still vulnerable to legislative abolition.

The Basic Law not only provides for the continuity of the common law, but restricts the power to amend or abolish it. 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.'

This helps to preserve our common law system 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).

Entrenched constitutional rights

The Basic Law therefore guarantees many common law principles. It also contains many new guarantees, designed to preserve Hong Kong's previous way of life and to reflect our new constitutional status. For example, Article 144 of the Basic Law provides that the SAR Government shall maintain the policy previously practised in Hong Kong in respect of subventions for non-government organisations in various fields. And Article 24 sets out who are the permanent residents of the Hong Kong SAR.

These matters are "entrenched" in the sense that no law enacted by the Legislative Council may contravene them. Although the Basic Law does not expressly provide that the courts may strike down a legislative provision that does contravene a right in the Basic Law, the Court of Final Appeal has decided that such a provision is invalid. This is because Article 11 of the Basic Law says that no law enacted by the legislature of the HKSAR shall contravene this (the Basic) Law.

The net result is that, although the Legislative Council can enact laws on almost any subject matter, if in doing so it contravenes rights in the Basic Law, the courts will not give effect to the offending provision.

This process of judicial review of legislation based on the detailed provisions of a written constitution is new to Hong Kong. It has caused the biggest controversies in the past three years. Before Reunification, our courts could not have held that immigration legislation defining who has the right to live in Hong Kong was invalid. Since then, they can and have done so. This demonstrates that the Basic Law provides stronger guarantees than did the colonial constitutional instruments.

Theory and practice

I hope that this brief summary of some aspects of our new constitutional order has demonstrated how, in legal terms, the Reunification has benefited the people of Hong Kong.

And these benefits are not merely theoretical - they affect our daily lives. The freedoms and human rights guaranteed by the Basic Law are enjoyed by us all - for example, the right to free speech, and the freedoms of assembly and of association.

Those who have felt that their constitutional rights have been infringed have been able to bring legal proceedings to challenge the alleged infringement. For example, proceedings have been brought by a group of civil servants who claimed their terms of service had been made less favourable than before Reunification; by a LegCo member who claimed he was not disqualified from office because of a criminal conviction, when he was appealing against the conviction; by a social worker who claimed that a new law requiring social workers to be registered was inconsistent with the policy previously practised in Hong Kong; and by persons born in the Mainland who claimed that the right of abode provisions in the Immigration Ordinance were inconsistent with Article 24(2) of the Basic Law etc.

Right of abode cases

The many cases brought by those claiming the right of abode are, of course, the most well-known of these challenges. The first Court of Final Appeal decisions in respect of such cases, in January 1999, caused great concern to the SAR Government. It was estimated that, as a result of the decisions, an additional 1.67 million people from the Mainland would be entitled to settle in Hong Kong within the next decade or so.

There was strong community support for this position to be altered. However, it was impossible for a solution to be found in Hong Kong. Only an amendment to the Basic Law by the National People's Congress, or a different interpretation of the relevant provisions in the Basic Law by the Standing Committee of the National People's Congress could solve the problem. For reasons that I explained fully to the Legislative Council, the Administration chose the latter approach, and this was supported by the majority of LegCo members.

The interpretation given by the Standing Committee in June last year made it possible for our immigration laws to be restored in a way that will prevent the huge influx of immigrants. This was a lawful and constitutional way to resolve a problem that could have posed a serious threat to the continued stability and prosperity of Hong Kong.

I will not pretend that this solution was not controversial. But I do not accept that either the rule of law or the independence of the judiciary has been undermined as a result. Indeed, four senior judges have publicly expressed their view that judicial independence has not been affected by these events.

Prosecution decisions

Since I have mentioned one controversy - I will address other criticisms that have been leveled at me.

Decisions not to bring prosecutions against the Xinhua News Agency, and against Ms Sally Aw, have been alleged to be based on favouritism. That is simply not true. Both decisions were made in accordance with established prosecution policies and procedures. In making prosecution decisions I have not, nor will I ever, be influenced by a suspect's personal connections or by improper political considerations. In the former case, those who continue to criticize my decision tend to overlook the fact that a private prosecution subsequently brought in respect of the allegations made against the Xinhua News Agency failed to secure a conviction. In the latter case, the matter unfortunately became the subject of a prolonged public debate which was, in effect, a public trial in which the suspect did not have the protection afforded by rules of criminal procedure and evidence. This was the very thing I wanted to avoid when, in the beginning, I did not give a full account of the reasons for non-prosecution. However, I remain firmly of the view that, if there is insufficient evidence on which to bring a prosecution, I must not institute proceedings merely to protect myself from unfounded allegations of favoritism.

The Big Spender case

Another criticism was that I did not seek the return of suspects who were being tried in the Mainland for alleged offences with a Hong Kong element. That criticism overlooks one rather fundamental fact - there is no legal mechanism in place for obtaining the surrender of a person in the Mainland who is wanted in Hong Kong.

Hong Kong does not surrender fugitive offenders to other jurisdictions, save in accordance with strict legal procedures. If we wish to be able to seek the return of fugitive offenders from the Mainland, this should be done on the basis of a proper surrender of fugitive offenders (or "rendition") agreement. Negotiations have already begun in respect of such an agreement.

Another aspect of those Mainland cases was the question of jurisdiction. Some critics alleged that the trials in the Mainland infringed the jurisdiction of Hong Kong courts to hear all cases in the Region. It is true that the Basic Law gives our courts such jurisdiction, but that jurisdiction is not, in all situations, exclusive. No court in the world has exclusive jurisdiction over all cases that occur in its territory. This is because many countries, quite properly, have extra-territorial jurisdiction over certain offences.

In short, I believe that the criticism leveled against me in respect of those Mainland cases was ill-founded. It largely arose out of people's mistrust of the Mainland legal system, which in fact has undergone tremendous improvement since the implementation of the open door policy.

Overview

Let me return to my theme - an overview of the first three years of the Hong Kong SAR.

It is my firm belief that our new constitutional order is highly beneficial to the people of Hong Kong, and that it is working extremely well. Of course there have been controversies, but this is almost inevitable in the early years of a new constitution. I hope we can deal with these controversies, and other controversies that may arise in the future, in a rational and dispassionate manner. Most important of all - we must keep a proper sense of balance. In my view, a balanced view of our first three years indicates that the visions of 'one country, two systems' and a 'high degree of autonomy' have been fully realised; that our common law system has been maintained and even strengthened; and that the rule of law and independence of the judiciary have been fully upheld.

These are firm foundations, on which we can build a promising future. And our own confidence in our legal system, in the judiciary, and in the solidity of the rule of law will help the local and international communities to retain their confidence in Hong Kong.

End/Thursday, June 15, 2000

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