Following is the speech by the Secretary for Justice, Ms Elsie Leung in the Motion debate on "upholding the Rule of Law" in the Legislative Council today (November 7):
The Proposed Amendment
I rise to oppose the amendment to the motion proposed by the Hon Martin Lee. The issue he has raised has been debated for more than two years, and the Government's position on it has been fully explained on numerous occasions.
I therefore propose merely to highlight the key points of the Government's position, and I will be happy to supply further details to anyone who requests them.
The legal and constitutional position
Firstly, the legal and constitutional position. When the Government sought an interpretation of the Basic Law by the Standing Committee of the National People's Congress in May 1999, some people claimed that this was unlawful, unconstitutional, or both. The Government has never accepted that.
The lawfulness of the Standing Committee's interpretation was challenged in court, in the case of Lau Kong Yung v The Director of Immigration. The Court of Final Appeal made no adverse comment on Chief Executive's request for the NPCSC interpretation. It held that "It is clear that the Standing Committee has the power to make the Interpretation. This power originates from Article 67(4) of the Chinese Constitution and is contained in Article 158(1) of the Basic Law itself. The power of interpretation of the Basic Law conferred by Article 158(1) is in general and unqualified terms. That power and its exercise is not restricted or qualified in any way by Articles 158(2) and 158(3)."
The Hon Martin Lee criticised the Government for making the application to the Court of Final Appeal for the clarification of its right of abode judgment in February 1999. The application was made in response to the confusion caused by the judgment on a constitutional issue. This was not without precedent. In 1997, in the famous Matimak case decided in the United States. The court clarified its judgment two months after it was delivered to make it clear that the principle therein enunciated only applied to Hong Kong companies before 1 July 1997 and not to the Hong Kong companies after the Reunification, and the U.S. judges did not find the application a pressure on them.
The Rule of Law
The proposed amendment to the motion is based upon the assumption that a request by the Government for an interpretation of the Basic Law by the Standing Committee is contrary to the rule of law. The Government has never accepted this assumption. Nor does it accept that judicial independence, or Hong Kong's autonomy, were undermined by the request for an interpretation. I explained why we took this view in my speeches in this Council on 18 and 19 May 1999.
Since then, that view has been endorsed by a number of senior judges at the time of their retirement. Let me quote them.
Mr Justice Findlay:
"It has now been 2 years since the Handover and I can honestly say that there has been no interference at all. I know the suggestions from some sources that the right of abode case amounted to interference. I think that is nonsense."
"But to suggest that there is any undermining of the rule of law cannot be because this is the law."
"I do not have the slightest concern about the future of the judiciary or the legal profession. I think it is in a healthy state and will continue to be so."
[Hong Kong Lawyer; August 1999]
Mr Justice Mortimer:
"The misperception is in the way in which the interpretation is viewed. It is probably not understood that there are provisions for this procedure in our constitution."
"It is a process which common law lawyers may find unusual. But, nevertheless, this is part of the constitution."
[Hong Kong Standard; 7 August 1999]
Mr Justice Nazareth
"Coming up to the future, I haven't seen any improper influence (on judges). I haven't seen any tilting (in decision-making) any way, improperly. Decisions go according to law. I don't see any reason for people to say independence has been compromised or that there is reason to fear that there would be compromise."
[Hong Kong Standard; 28 January 2000]
Mr Justice Henry Litton
"I am mystified as to how anyone can claim that the rule of law has been in any way diminished because of the resumption of sovereignty."
[Hong Kong Lawyer; June 2000]
Mr Justice Keith
"The interpretation of the Standing Committee has not in any way undermined either the rule of law or the independence of the Judiciary if one remembers that it is indeed the Basic Law that confers on the Standing Committee the final power of interpretation".
[Hong Kong iMail; 11 September 2001]
In case honourable members have forgotten the background to the request for an interpretation by the Standing Committee, let me quote an extract from my speech in this Council on 26 May 1999.
* "First, there is overwhelming public support for steps to be taken to prevent the influx of possibly 1.67 million people within the next ten years.
* Secondly, the HKSAR does not have the autonomy to solve the problem itself, unless the CFA were prepared, at some unknown future date, to change its interpretation of the two articles in another case.
* Thirdly, the SAR must therefore seek the assistance of the Central Authorities, either by way of an amendment to the Basic Law or an NPCSC interpretation. Whilst this Council may amend any local law to deal with the unacceptable effects of a court decision, this Council cannot interpret or amend the Basic Law. In considering a request for assistance there is no question of the Central Authorities interfering unilaterally in Hong Kong's affairs.
* Fourthly, having regard to the history behind the two articles, such as the opinion of the Preparatory Committee in 1996, there are good grounds for seeking an interpretation, rather than an amendment, of the Basic Law.
* Fifthly, the decision to seek an NPCSC interpretation has been supported by a majority of Members of this Council."
Hong Kong is currently facing economic difficulties and increased unemployment. Perhaps honourable members would reflect on the position we would be in now if we had not found a way - a lawful and constitutional way - to prevent a huge influx of people from the Mainland.
Putting matters into perspective
The Administration firmly believes that the Chief Executive's request for an NPCSC interpretation was lawful and constitutional, and was not contrary to the rule of law or independence of the judiciary. Moreover, the Administration cannot lawfully detract from the NPCSC's constitutional power to interpret the Basic Law, or the Chief Executive's constitutional duties under Articles 43 and 48(2) of the Basic Law. The Administration has repeatedly emphasized that it would not seek an NPCSC interpretation save in wholly exceptional circumstances; that the NPCSC has rarely exercised its power to interpret national laws; and that the NPCSC would not lightly decide to interpret the Basic Law.
The Administration hopes that it will not again be faced with a problem of the magnitude of the right of abode issue. However, the possibility of this happening cannot be ignored. It would not therefore be appropriate for the Administration to undertake that it will never again seek an NPCSC interpretation. I nevertheless repeat that the Administration will not do so save in wholly exceptional circumstances.
I thank those members who spoke on Hon Martin Lee's motion for amendment and I urge honourable members to vote against the amendment.
The Original Motion
I turn now to the original motion proposed by the Hon Audrey Eu. As this motion recognizes, Hong Kong has an important competitive edge in its unswerving commitment to the rule of law. The time has come for us to maximize that competitive edge in order to revitalize the legal profession and establish Hong Kong as the leading regional centre for legal services.
The Rule of Law
The rule of law has a number of meanings and corollaries. In brief, it means that everything must be done in accordance with the law - the principle of legality. It means nobody is above the law. In the context of the Government, its powers must derive from the law and be exercised in accordance with the law. Therefore, even where the Government is vested with certain discretionary powers, its discretion must be exercised rationally and with procedural propriety, and the courts are in a position to prevent abuse. Citizens have the right to challenge in courts the legality of acts of the government (including the validity of the law under which it acts) and disputes are to be adjudicated by an independent judiciary. Justice must also be reasonably speedy and affordable, because if access to the courts is slow and costly, the rule of law will be diminished. The law should be even-handed between government and citizens, striking a balance between the needs of fair and efficient administration and the rights of the individual. The observance of the rule of law makes a government one of laws, and not one of men. I quote the above from my speech delivered to the Japan Society in July this year.
These principles are fully understood, not only by members of my department, but by the Administration in general. They form the ground rules by which Government policies and legislation are formulated, and administrative decisions are made. Moreover, the many court decisions involving the Government since Reunification indicate not only that the Government continues to abide by and promote the rule of law, but also that members of the community understand that the Government is subject to law.
Legislation and the rule of law
I note that Hon Audrey Eu has not included quality of legislation in the terms of her motion. I mention this point not by way of criticism, but because Ms Eu expressed some concerns on this specific aspect of the rule of law in her speech on 19 October during the debate on the Policy Address. In my reply that evening in this Council, I said that I took serious note of her comments regarding three particular bills which she felt were illustrations of Government officials lacking the spirit of the rule of law. I undertook to look further into these comments. I have done so.
I can reassure Ms Eu and this Council that the three bills in question were prepared with full consideration of relevant rule of law imperatives.
Whilst I share Ms Eu's concern for clarity and transparency in our laws, I would ask her to reflect on whether we are speaking in absolute or relative terms. I am sure she would agree that the rule of law imperative in legislation is to strive for the maximum possible clarity, transparency and fairness which the subject matter of the legislation will allow. The three bills in question all address complex social issues.
In all three cases I can assure Ms Eu that the Administration is working to achieve appropriate legislative solutions, within rule of law principles, to the complex circumstances inherent in each of the three areas of these bills.
Responsibility for initiatives
In my speech during the debate on the Policy Address, I outlined what is already being done to build on Hong Kong's legal strengths. In many ways, today's motion reflects initiatives that are already taking place. The Government will play a full role in these initiatives. But it should not be seen as having sole responsibility for them. On many issues, the legal profession, legal academics, the Judiciary and non-governmental organisations have equally important parts to play.
Take reforms in legal education, for example. The Government has done its best to facilitate reform. Two years ago, the Department of Justice helped to bring together the Steering Committee on legal education and training; it provided most of the funding for the consultancy study by two experts; and the Solicitor General continues to chair meetings of the Steering Committee as it decides the way forward. But the Government should not, by itself, decide on appropriate reforms and implement them. Issues of academic freedom and professional self-regulation are involved. A collective effort is therefore needed in this area.
Having said that, I would not seek to underestimate the need for, and importance of, reforms to legal education and training. It is generally accepted that reform is overdue. There are concerns over standards of some new entrants to the profession. Equally important is the need to prepare future generations of lawyers for a completely new legal landscape. A landscape that is shaped by the new constitutional order; where bilingualism is the norm; where globalisation and rapid change bring unprecedented demands; and where every member of the community rightly expects access to justice.
The report by the two consultants contains 160 recommendations, covering all stages of professional education and training. Although media attention has focused on the length of the undergraduate training and the future of the PCLL, there are many other equally important areas where reforms are proposed. None of these must be overlooked as the review is taken forward.
Reforms must be pursued with a sense of urgency - but they cannot be rushed. If some aspects of the system - such as the professional training stage - are to be completely redesigned, the process must be thorough and well-considered. And the professional bodies should have a substantial say on the reforms.
Additional resources are certain to be needed, and my department will give its full support for funding requests that are supported by the Steering Committee.
Reviewing demand for legal services
I have listened with interest to the suggestion from the Hon Audrey Eu and others that there be a comprehensive review of the demand for legal and legal-related services. The extent of the so-called "unmet need" for legal services is one that has received attention in some other jurisdictions.
The English Royal Commission on Legal Services, which reported in 1979, considered that "The need for legal services may be estimated in a number of ways but its extent cannot be precisely quantified". The Commission found that in some areas, which were not specified, legal services were seriously inadequate, and called for a co-ordinated programme of research into this problem in the future.
The Marre Report on the Future of the English legal profession, published in 1988, stated that "It is extremely difficult to define the need for legal services. Unmet need is impossible to quantify ... It would be hard to develop research techniques which would give a reliable profile of unmet legal need broken down by type of problem and geographical area". The report was, however, able to identify certain categories of unmet need that had been highlighted by organisations working in particular areas, such as housing and immigration.
In Australia, the Access to Justice Advisory Committee produced an Action Plan in 1994, and the Federal Government produced a Justice Statement in 1995, both designed to improve access to justice "for all Australians". However, neither publication referred to any comprehensive studies of the unmet need for legal services.
In referring to these precedents I am not trying to dismiss the call for a comprehensive local review, but to draw attention to the complexities involved, and to suggest that the proposal needs to be explored further before any decision can be made.
Amongst the issues to be explored would be the precise objectives of the review. In the course of the project on legal education, for example, it has been suggested that any informed decision as to reform requires a full and proper survey of the unmet legal needs of all Hong Kong's various social groups. This could help to determine appropriate curricula, and better integrate the legal profession and the universities into the lives of their communities.
Another possible objective of such a review would be to ascertain how members of the community currently seek to resolve their legal problems; why they do or do not seek legal advice; and whether they feel barred from access to lawyers or the courts. A survey of this type might help in developing strategies, either for improving access to the courts or for diverting cases away from the courts into private dispute resolution forums.
Before any review of unmet need could be conducted, socio-legal experts would need to develop a methodology that is tailor-made to achieve the objectives set for it. Adequate funding would need to be found for the team of research assistants that would be involved in obtaining raw data, conducting interviews, and collating the results.
The proposal that such a survey should be conducted is worth exploring. It may be that academics would be best placed, and can be adequately funded, to take up the suggestion. My department will discuss the matter further with the professional bodies and the universities.
Legal services in the community
The Hon Audrey Eu and other members have drawn attention to the fact that many litigants are unrepresented by lawyers, and have commented that existing schemes for providing free or affordable legal services are inadequate. In this respect, I have some doubt as to the meaning of the statement that 85% of the litigants are not represented in court. It must be remembered that in some cases, there is simply no defence. People are simply unable to pay and in those cases, I don't think that they would incur expenses of being legally represented.
The Chief Secretary has explained the role that legal aid services and the Duty Lawyer Service can play in addressing these issues. I would like to say something about the free legal services, other than those financed by the taxpayer, that are currently available.
The Community Chest funds the Free Legal Advice Clinic for Women, which specialises in matrimonial and domestic matters. The Clinic is open one evening every week and about 30 volunteer lawyers provide their services.
A number of non-governmental organisations, including the Caritas Family Service, the Society for Community Organisation, the Association for the Advancement of Feminism, Hong Kong Single Parents Association, the Association Concerning Sexual Violence against Women, the Hong Kong Federation of Women, Mutual Aid Helpline and some trade unions offer free legal advice in their areas of concern.
Free legal advice is also available during the Law Society's Law Week; through the Bar Association's Free Legal Service Scheme; and through the offices of certain individual members of this Council.
I would like to pay tribute to all those who have so generously provided free legal advice under these various schemes. Together, they provide valuable assistance to a great number of people. Some speakers today have drawn attention to shortcomings in the present arrangements. No system is perfect. But this combination of public and private services is consistent with the growing international trend of privatisation, and partnership between governments and civil society. As the Chief Executive emphasized in his Policy Address last month, in developing the most effective approach to solving social problems, the Government encourages the community to come together, and pool the wisdom and strength of individuals, non-profit-making organisations and businesses.
As I said at the beginning of my speech, the Government does not have sole responsibility for the issues covered in this debate. Suggestions for improvements to existing schemes could usefully be directed to those who run them. Any proposal for a new form of service, such as the setting up of community legal service centres, obviously has resource implications. I am sure all lawyers would welcome the wider availability of legal services within the community, in order to improve access to justice. However, as members are well aware, there are always competing demands for limited resources, and priorities will need to be determined.
Promoting knowledge of the law
I turn now to the promotion of awareness and knowledge of the law in the community. This is one of key objectives of my department, and I believe that its record in this area is a good one. In the time available, I can only highlight some of our activities, but I will be pleased to supply fuller details on request.
Our publications include 'The Legal System in Hong Kong', the biennial report of the Department of Justice, 'Legislative Drafting in Hong Kong', bilingual glossaries of legal terms, the 'Victim of Crime Charter' and 'Prosecution Policy - Guidance for Government Counsel'.
My department has co-produced with RTHK three series of legal docu-drama, which were screened in prime time television. We have also created a VCD containing some of these episodes, a VCD describing the preparation and promotion of an Ordinance, a CD-ROM interactive legal quiz, and a 10-minute video on the legal system.
Our community projects have included 28 school talks, jointly organised with the Local Government Counsel Association; participation in the Law Society's Law Week; contributing to the Basic Law 10th Anniversary roving exhibition; and the publication of legal articles in newspapers.
Almost all of the publications and reference materials produced by the Department are available for browsing on my department's website. In addition to the full set of the Laws of Hong Kong which is updated regularly by a dedicated team of the Department, the website also contains the latest speeches and articles by my colleagues or myself, papers and consultation documents. The full text of the Basic Law and selected constitutional documents are also available. The lists of bilateral, multilateral agreements that have come into force and are applicable to HK are also updated regularly.
In the coming year, my department will continue to promote knowledge of the legal system in the community. Amongst our new initiatives will be a short drama series on crimes commonly committed by youths, which will be shown on television and put on VCDs for distribution to schools.
I agree entirely with those who have emphasized the importance of the wider dissemination of legal knowledge. My department will play its part, and I commend the efforts of those in the private sector who are doing likewise.
Studies and conferences on the two legal systems
I turn now to the promotion of studies on the legal systems of China and Hong Kong, and the organisation of international conferences on this subject. Again, these are key objectives of my department, on which we have devoted considerable efforts.
Since becoming Secretary for Justice in July 1997, I have repeatedly emphasized that the successful implementation of "One Country, two Systems" can be enhanced by greater mutual understanding of the two systems. I have encouraged members of the community, particularly lawyers, to study the Mainland system. I know that many individuals have, for example, undertaken degree courses in Mainland law.
What my department can do is to ensure that it provides training opportunities for Government Counsel, and for Mainland officials, in each other's legal systems. During the past twelve months, bilingual Government Counsel attended courses in Mainland law at Zhongshan University, Guangzhou, and anglophone Counsel attended courses at Peking University; they also attended Mainland conferences and seminars on judicial reform, on the recently amended Marriage Law of China, and on China's accession to WTO. Two Law Officers led delegations to Shenzhen, Zhuhai, Beijing, Xian and Urumchi to promote greater mutual understanding.
So far as the study of Hong Kong laws is concerned, there is an ongoing scheme under which about a dozen Mainland officials come to Hong Kong each year to study the common law. They undertake the Postgraduate Diploma in Common Law at the University of Hong Kong, and then have a 3-month placement in legal sections of the government or public authorities. Many shorter visits are arranged for Mainland judges and officials, who are given briefings on relevant aspects of Hong Kong's legal system.
Mutual understanding is also promoted by the series of mock trials that my department has arranged in Mainland cities. In May and June this year for example, mock trials involving intellectual property issues were held in Shenzhen and Shanghai, and were followed by debates on the differences between the IP laws and procedures under the two systems.
Knowledge of Hong Kong and Mainland laws is also being promoted more widely. My department's website will soon include information relevant to China's accession to WTO, and a database on Mainland law. Basic Law seminars and bulletins are regularly organised.
Turning to international conferences, last year my department organised a highly successful conference looking at the Basic Law from a comparative perspective. Eminent scholars and judges from the United States, Canada, South Africa, Germany, Hong Kong and the Mainland participated. Earlier this year, my department co-organised a conference on the implications for legal education and the legal profession of China's accession to WTO.
My department will continue to promote studies of the two systems, and international conferences concerning them. It also welcomes the activities of other organisations in this area. The law faculties, professional bodies and non-governmental organisations have much to contribute, and I look forward to continuing co-operation with them.
In conclusion, I would like to thank the Hon Audrey Eu for proposing this motion, and to acknowledge the helpful suggestions that she and other speakers have made during this debate. I am sure that we share a common goal of promoting the rule of law, and of developing legal services, legal knowledge, and legal studies, within Hong Kong. As I have said, some of these issues need to be explored further and, in some cases, other organisations need to be involved in the work ahead. Subject to these comments, Madam President, I commend the motion to members, but urge them to vote against the amendment. Thank you.
End/Wednesday, November 7, 2001