Following is the speech by the Secretary for Justice, Ms Elsie Leung, in the Policy Address Debate in the Legislative Council today (October 19):
I have listened to this evening's debate with great interest. We all agree that the rule of law, the independence of the Judiciary, and the protection of individual rights and freedoms are the foundations of Hong Kong's way of life.
Building on our strengths
We must build on these foundations to benefit Hong Kong's economy and to revitalize our legal profession. This is being done in three main ways.
The first is the comprehensive review of legal education and training. This is also in response to the Hon Margaret Ng and the Hon Miriam Lau. They have spoken on this subject. The first stage of the review was completed in August this year, when the report of two expert consultants was published.
The Steering Committee has frequently reported progress to the Panel on Administration of Justice and Legal Services, and will start to consider the way forward next week. Although the review is still going on, it has already resulted in improvements being undertaken by the universities.
The Department of Justice is eager to ensure that, if agreement can be reached over necessary reforms, funding should not be an obstacle. It will therefore give its full support to requests for government funding for agreed reforms.
Civil Justice Reforms
The second initiative is being taken by the Chief Justice. His Working Party on the Reform of the Civil Justice System, on which my department is represented, is considering ways in which access to civil justice can be made more affordable and expeditious. A consultation paper is soon to be released.
I note with interest the points raised by the Hon Margaret Ng and the Hon Audrey Eu about access to justice. Their suggestions concerning free or affordable legal advice, a community legal services centre and mediation deserve serious consideration by the profession and relevant government departments, in particular, the Department of Justice. Meanwhile I would like to applaud the efforts of many members of the legal profession who regularly provide legal assistance to individuals on a pro bono basis, as portrayed by the Hon Audrey Eu.
Legal services relating to the Mainland
The third initiative is in promoting Hong Kong's legal services in relation to the Mainland. My department does this in three ways:
(1) assisting the legal profession to pursue their proposals for gaining entry into the Mainland market;
(2) promoting Hong Kong as a legal services centre for the negotiation and documentation of China-related contracts, and as a dispute resolution centre for such contracts; and
(3) as part of that promotion, to seek to establish a mechanism for the reciprocal enforcement of certain judgments delivered in Mainland and Hong Kong courts.
I am grateful to the Honourable Members who spoke favourably of our proposal to make Hong Kong a legal services centre. I would, however, like to take this opportunity to clarify a few points.
(1) The approach we made to the Ministry of Economy and Trade was not to request a directive that Mainland companies must use Hong Kong as a legal services centre. It was simply to verify the feasibility of the proposal and to promote the merits of Hong Kong as a legal services centre, which contain important features familiar to foreign investors. For Mainland parties, Hong Kong has additional advantages of being nearby, and of having a good understanding of the Mainland and a common language. The use of Hong Kong as a dispute resolution centre will enhance the confidence of their foreign counterparts. Indeed, the Government's promotion of Hong Kong as a business and professional services centre is not targeted only at the Mainland authorities, but also at overseas investors. The proposal is to maximize our potential, not to beg for any favour, and is totally WTO compatible.
(2) Honourable Members will recall that, since June 1999, arbitral awards made in Mainland and in Hong Kong have been mutually enforceable. Arbitration is based on the agreement of the parties, either contained in the contract or reached after disputes have arisen. Similarly, the proposed system of reciprocal enforcement of judgments is limited to civil and commercial cases in which the parties had by contract agreed to have the dispute decided by the Hong Kong court or the Mainland court. In the proposed convention, the international convention on jurisdiction in civil and commercial matters and the proposed international convention for reciprocal enforcement of judgments, which are being negotiated, the free choice of the parties is respected. Furthermore, as with the enforcement of arbitral awards, the enforcement of foreign-related judgments in the Mainland is entrusted only to the Intermediate People's Court. I hope this would alley the fears of the Hon Margaret Ng on this subject. In any event, any arrangement must give legislative backup and that requires the approval of this Council. I thank the Hon Miriam Lau for her support to our proposal. I also agree with her that improving our skill in arbitration is very important, as to mediation. This is all part of our proposal to make Hong Kong a legal services centre -- a centre for all forms of alternative dispute resolution.
Rule of Law
I would like now to turn to a number of issues that have been raised in this evening's debate as affecting the rule of law. Some members have referred to a number of old issues time and again in the debate in this Chamber, including the issue of public interest, Sally Aw, interpretation of law, etc. Members need only refer to the previous addresses of myself and my colleagues. Today members mentioned about the motion of no confidence on me. May I say that if you respect the democratic process, you must respect that the motion was not passed. Both the Hon Margaret Ng and the Hon Audrey Eu, and also the Hon Albert Ho spoke at length on the rule of law. The Hon Audrey Eu commented on the description of the rule of law as found in the policy objective of my department. The policy objective is, of course, not meant to be a declaration of what the rule of law is. In any event, I understand the Hon Audrey Eu will make a motion relating to the rule of law later next month and we shall have an opportunity to debate on it much more thoroughly. But I would like to respond to several specific points.
Quality of legislation
The first relates to the quality of draft legislation. The Hon Margaret Ng and the Hon Audrey Eu both expressed concerns in this respect. In their opinion, some Bills introduced into this Council were not adequately focused in tackling the perceived mischief. As a result, they say, the Bills may have had unintended implications for harmless activities. They went on to say that, when this was pointed out, officials were sometimes content to leave the Bill as it stood, on the basis that administrative flexibility could overcome the problem.
I take serious note of these comments and will look further into them. It is an important aspect of the rule of law that the law should be applied equally, and that administrators should not have vague and over-broad discretions. Our laws should be precise and well-focused. If problems have arisen in this respect I will do my best to ensure that they are not repeated.
Another issue raised by the Hon Margaret Ng related to the role of the Secretary for Justice in advising the Government, in particular, on its obligation under the international covenants on human rights. I have advised and the Administration accepts that it is obliged, as a matter of international law to comply with those obligations. However, implementation of the covenants may be by legislative, administrative or other measures, and it is normally left to the contracting state to decide which to adopt. For example, as I have previously explained to this Council, the International Covenant on Economic, Social and Cultural Rights ("ICESCR") imposes an obligation on each State Party to take steps, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the Covenant.
I have also explained to this Council why it would be inappropriate for me to undertake never to argue in court that ICESCR is "promotional" or "aspirational". Afterall, this view is adopted by local court. I do not intend to repeat those reasons, which can be found in my reply to a question in this Council on 20 June this year.
The government's record in complying with its obligations under international human rights covenants, including its reporting obligations, is a good one. There is no basis for concerns about the government's commitment to the rule of law.
The Hon Margaret Ng also referred to the continuing use by my department of court prosecutors and the recent recruitment exercise to fill vacancies in their ranks.
This issue has been discussed in this Council, and its Panel on Administration of Justice and Legal Services, on numerous occasions. Suffice it to say that court prosecutors provide a professional, efficient and cost-effective service to the criminal justice system at the summary level. I spoke at length on the issue in the Budget debate on the 4 April this year and do not wish to waste the Council's time in repeating what I said. I am however glad to report that in our recent recruitment of Court Prosecutors, a few qualified lawyers did apply.
The Hon Emily Lau referred to recent court decisions on the question whether certain persons should receive shorter prison sentences on account of their "foreignness". The resolution of that question is ultimately a matter of sentencing policy for the courts. I have sought reviews of sentence in two cases in which Mainlanders were given reductions of sentence on account of the "foreignness" issue. The Court of Appeal will be invited by the Director of Public Prosecutions to clarify the position when those reviews are determined by the court on 5 November 2001.
Prosecuting Government Departments
The Hon Emily Lau also suggested that government departments should be subject to prosecution if they fail to comply with the law, arguing that the rule of law requires all persons to be treated equally. I cannot, this evening, go into this complex issue in any depth. However, I would point out that criminal sanctions are not the only mechanism by which government departments can be made to comply with legislation that applies to them. I would also refer members to a paper which my department submitted to the Panel on Administration of Justice and Legal Services in October 1998. That paper was entitled "Binding effect of Ordinances: legal and constitutional principles, and policy considerations". The paper contains a number of quotations from authoritative sources to the effect that equality before the law does not require a general similarity of treatment between the Administration and the individual. I will be happy to supply a copy of this paper to any member on request.
Enhancement of the Accountability System
The Chief Executive's initial thinking on enhancing the accountability system prompted comments from the Hon Margaret Ng in respect of the role of the Secretary for Justice. Ms Ng drew attention to special constitutional considerations regarding the post of Secretary for Justice and queried whether there is any need to extend the proposed new system to include that post. The Hon Emily Lau also requested me to respond to that.
There is no doubt that there are features of the Secretary for Justice's constitutional position which are unique and which cannot be equated with those of other principal officials. That unique position is recognised in the Basic Law, which provides in Article 63 that the Department of Justice shall control criminal prosecutions, free from any interference. Both in law and in practice, prosecution decisions are taken by the Secretary for Justice independently and not by the Chief Executive or by any other part of the SAR Government.
There are other special responsibilities which the Secretary for Justice has, some of which arise from her role as guardian of the public interest. These special roles will be maintained.
As the study is taken forward, I will ensure that any changes affecting the post of Secretary for Justice are in accordance with the Basic Law and fully meet the requirements of constitutionality. However, at this stage, I do not consider that this will present difficulties.
There will be no change in the method of selecting a Secretary for Justice, in that the candidate could continue to be drawn from within or outside the Civil Service. There will be no change in the method of appointment or removal, since these are set out in the Basic Law.
The main difference, under the new system, would be that the Secretary for Justice would no longer be a civil servant and the term of office would not exceed that of the Chief Executive who nominated her. She would be answerable to the Chief Executive for the success or failure of her policies. Such an arrangement under the Basic Law is no different from that for Attorneys General or Ministers for Justice in many (perhaps most) common law jurisdictions, and the constitutionality of their positions is beyond doubt. Moreover, subject to her independent position in respect of prosecutions, the Secretary for Justice - as a public servant whether politically appointed or otherwise, is required by Article 99 of the Basic Law to be responsible to the Government of the Hong Kong SAR, and the Chief Executive who leads the HKSAR Government, and the Government is, of course, accountable to this Council in the manner set out in Article 64 of the Basic Law.
The independence of the Department of Justice in relation to prosecutions would be unaffected by the proposed changes. The Director of Public Prosecutions remains a civil servant. So far as the Secretary for Justice's role as legal adviser to the Chief Executive is concerned, the Secretary for Justice would continue to be duty-bound to give unbiased and reliable legal advice. So far as policy formulation is concerned, the Secretary for Justice has a fairly narrow (but important) responsibility - in respect of the administration of justice and legal services - and there appears to be no constitutional objection to the Secretary being accountable to the Chief Executive in that respect. Policy responsibility for other areas is vested in relevant government bureaux and the Secretary for Justice's role in relation to those areas would continue to be limited to providing constitutional, legal, and legal policy, advice in respect of them.
As I have said, I do not foresee any real difficulties in taking forward the proposal. Nevertheless, any further representations that may be made on this subject will be given serious consideration.
In conclusion, I would like to thank honourable members for their comments on issues relating to the rule of law, legal services and the administration of justice. I am sure that we share a common goal of building on Hong Kong's strengths, and I thank you for your suggestions. I have tried my best, in the time available, to respond to the main points raised as some of them will take days of arguments in court. If anyone would like me to follow up on issues I have not covered, or would like to continue this evening's dialogue, I would be happy to hear from him or her.
Madam President, I wish to end my address with a more light-hearted note. Although Constitutional Affairs is the responsibility of my colleague Mr Michael Suen, regarding the relationship between this Council and the Administration, may I add that there are in the front row of the Administration's section of this Chamber, two principal officials by the surname of Leung. The message is clear: there is always room for discussion.
End/Friday, October 19, 2001