Ladies and gentlemen,

I am greatly honoured to be here in the beautiful city of Manila, addressing so many distinguished lawyers from the Asian region.

It is now nearly two months since a new era began, with the reunification of Hong Kong with the motherland, and the birth of the Hong Kong Special Administrative Region. The international media have spoken and written much about the reunification, but I believe that many people have only a vague idea of the current legal system in the Special Administrative Region. In my speech today, I therefore propose to describe the key elements of that legal system, and to indicate the extent to which changes occurred on 1 July this year.

The Joint Declaration and Basic Law

Let me begin with the two instruments that provided the basis for the creation of the Special Administrative Region.

The resumption of sovereignty, the future administration of Hong Kong, and the preservation of Hong Kong's economic, political, and legal systems, are governed by the Sino-British Joint Declaration signed in December 1984, a binding international agreement registered with the United Nations. For 50 years beyond 1997 it guarantees, "one country, two systems". Except in respect of defence and foreign affairs, which will be the responsibilities of the Central People's Government, the SAR enjoys a high degree of autonomy. It has its own government and legislature composed of local inhabitants. It retains the status of a free port and separate customs territory. Its independent role in economic and trade fields are preserved. The Hong Kong SAR mirrors, in all significant institutions and policies, the Hong Kong that existed before 1 July this year.

The Joint Declaration guarantees the continuance of the legal system. This is repeated in the Basic Law - the law enacted by the National People's Congress of the PRC as the constitutional framework for Hong Kong since 1 July. Article 8 of the Basic Law is worth citing in full -

Article 8

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 Hong Kong Special Administrative Region.

In addition, there are specific guarantees in the Joint Declaration and Basic Law relating to the legal system, including -

* an independent judiciary with security of tenure,

* the use of the English language, in addition to

Chinese, in the courts,

* reliance on precedents from other common law

jurisdictions,

* an independent public prosecution service,

* the continuing ability of overseas lawyers and law

firms to practise in Hong Kong,

* a Hong Kong based Court of Final Appeal, which has

replaced the Privy Council in London as the final

appellate court for Hong Kong,

* a requirement that the International Covenant on Civil

and Political Rights as applied to Hong Kong shall

remain in force and shall be implemented through the

laws of the Hong Kong Special Administrative Region.

Since the Basic Law came into operation on 1 July this year, Hong Kong has, for the first time, a detailed written constitution, containing 160 articles and three annexes. This has great significance for our legal system. The Basic Law is not simply a statement of intentions nor is it merely a policy document. It is part of Hong Kong's domestic law. And a law which touches so much of Hong Kong's way of life. It is a law which the Hong Kong courts and judges have to apply, uphold and interpret.

Litigants are able to base their arguments on provisions in the Basic Law, and challenge actions that they believe are inconsistent with them. The Basic Law has therefore created a new era of constitutional law in Hong Kong.

The laws previously in force

Nevertheless, a central theme of the Joint Declaration and Basic Law is one of continuity. Article 8 of the Basic Law, which I quoted a moment ago, is supplemented by Article 160, which provides that, upon the establishment of the Hong Kong SAR, the laws previously in force in Hong Kong shall be adopted as laws of the Region, except for those which the Standing Committee of the National People's Congress declares to be in contravention of the Basic Law.

In February of this year, the Standing Committee of the National People's Congress, acting under Article 160 of the Basic Law, adopted all the laws previously in force, save for 24 Ordinances which were found (in whole or in part) to contravene the Basic Law. This means that the common law principles, and nearly all the 600-odd Ordinances, that were previously in force, continue to apply in the Hong Kong SAR.

Amongst the underlying values and ideals of the common law is the fundamental concept of the rule of law. There are several vital principles under this concept, all of which are alive and well in the SAR. One is that laws operate separately from the political system; they are published and are accessible; and they provide a degree of certainty and predictability as to how disputes are to be resolved. A second principle is that everyone, no matter how high, is subject to the law, and that a person can only be punished for conduct that is a breach of the law. A third principle is that of equality before the law: no one gets better or worse treatment under the law because of his or her status, wealth, race and so on. A fourth principle is that the settlement of disputes is in the hands of judges who are independent of the executive and who are not subject to pressure from any source in carrying out their duties.

The Government of the SAR is committed to maintaining the rule of law. The Chief Executive, Mr Tung Chee Hwa, made this clear in his speech at the ceremony to celebrate the establishment of the HKSAR on 1 July. This is what he said -

"Maintaining and developing the legal system and the rule of law in Hong Kong is immensely important. We will continue to ensure that the executive, legislative and judicial branches of the Government will operate independently. We will keep up our efforts against corruption and maintain a clean society. We will ensure equality before the law and provide an attractive environment for investors and the people of Hong Kong."

Ordinances now in force

Let me turn now to the Ordinances that are now in force in the Special Administrative Region. Two points need to be made. The first is that all those Ordinances are bilingual, and their Chinese and English texts are equally authentic. This system means that Hong Kong's legislation is equally accessible to the local and international communities.

The other point relates to the adaptation of the Ordinances to bring them into line with the Basic Law. This is being done in two stages. The first stage was initiated by the Standing Committee of the National People's Congress which, in February of this year, laid down certain general principles for interpreting the Ordinances that it had adopted as laws of the SAR. Those general principles provided, for example, that all references to the Governor shall be construed as references to the Chief Executive. The principles of interpretation were incorporated into the SAR's domestic law by means of the Hong Kong Reunification Ordinance, which was enacted on 1 July this year.

The second stage of the adaptation process will take place in the coming months, when the government will introduce a series of Bills that will make the necessary textual amendments to Ordinances to bring them into line with the Basic Law.

The courts and judges

So far, I have been emphasising the continuity of the law. What about the courts and the judges?

Article 81 of the Basic Law provides that the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the establishment of the Court of Final Appeal of the Hong Kong SAR. The legislation to establish that court has been in place for two years, and came into force on 1 July of this year. The judges of the Court of Final Appeal have now been appointed by the Chief Executive, in accordance with the recommendations of an independent commission, and those appointments have been endorsed by the legislature.

The jurisdiction and procedures of the Court of Final Appeal were modelled on those of the Judicial Committee of the Privy Council. The system of appeals will therefore follow a familiar path, but appellants will benefit from the fact that the highest appellate court is now in Hong Kong, not on the other side of the world.

The other courts and tribunals that were previously in existence were re-established on 1 July this year. The only changes that took place were the re-naming of certain of those courts.

I mentioned earlier that the Basic Law provides that the courts of the SAR shall exercise judicial power independently, free from interference. This provision is underpinned by other articles in the Basic Law which provide that judges are to be appointed in accordance with the recommendations of an independent commission, and are to have security of tenure.

The continuity of the judiciary was achieved on 1 July this year when the Chief Executive, acting in accordance with the recommendations of the Judicial Officers Recommendation Commission, re-appointed all judges who were in service on the previous day.

The continuity of judicial proceedings was achieved by provisions in the Hong Kong Reunification Ordinance. These provisions ensured that court proceedings which had previously been instituted would not need to be started again after 1 July.

Use of Chinese in the courts

Let me now turn to the language of court proceedings. All courts and tribunals in the SAR may operate in either English or Chinese. Until comparatively recently, the Hong Kong courts operated only in the English language, and evidence given in Cantonese had to be translated. The process of using Chinese in the courts has been a gradual one, and started in the magistracies in 1974.

Great care has been taken to ensure that the quality and integrity of the legal system are not compromised by the use of the Chinese language. It is for the judge in any case to decide which language to use at any particular stage. And, regardless of which language the judge chooses to use, the parties, witnesses, and legal representatives in any case may use either or both of the official languages. In other words, a judge could (for example) decide to use Chinese when hearing evidence and English when giving directions to a jury. And a legal representative before him could choose to use either language as he or she thought fit. No one is therefore being required to abandon the use of English in court.

The increasing use of Chinese in the courts is of immeasurable value to the community, since it removes a language barrier, helps to de-mystify the law and promotes the ideal that the law belongs to the people. For the first time, the vast majority of Hong Kong's population now has access to the law in their own language. And if they are ever involved in a court case, it will be possible for the proceedings to be heard in their own language.

These developments in no way prejudice English-speaking individuals or businesses that make Hong Kong their home or business-centre.

International Rights and Obligations

Hong Kong is an international business and financial centre. It benefits from many international agreements, which play a vital role in facilitating its legal and commercial links with the international community.

About 200 multilateral international agreements apply to the Hong Kong SAR. These include agreements in the fields of civil aviation, merchant shipping, private international law, protection of labour standards, and customs cooperation. They also relate to many international organisations in which Hong Kong participates, such as the World Trade Organisation, the Asian Development Bank, the World Health Organisation, the Customs Cooperation Council, the International Maritime Organisation, and the World Intellectual Property Organisation.

In accordance with the Basic Law, the SAR is also able to negotiate and conclude bilateral agreements in areas such as air services, investment promotion and protection, surrender of fugitive offenders, mutual legal assistance, and transfer of sentenced persons. A number of bilateral agreements have already been concluded. These include 22 air services agreements, 13 investment promotion and protection agreements, eight surrender of fugitive offenders agreements, and three mutual legal assistance agreements. Negotiations are continuing with additional partners in order that a reasonably comprehensive framework of bilateral agreements can soon be in place.

Links with the Mainland

Finally, I would like to discuss the increasing links between the legal system of the SAR and the legal system of the Mainland.

The concept of "one country - two systems" implies one country - two legal systems. Two entirely different legal systems co-exist within the same country. However, given the economic and social ties between the two jurisdictions, there need to be growing links between the two systems. We need to ensure that the inter-face between the two legal systems is efficient, but does not undermine the integrity of the SAR's common law system.

The Hong Kong Special Administrative Region will need to have effective mechanisms in place for mutual legal assistance, including the surrender of fugitive offenders between it and the Mainland. These arrangements must be based firmly on proper legal procedures. Once they are in place, it will be possible to enforce Hong Kong judgements and arbitral awards in the Mainland and vice versa; to serve in one jurisdiction judicial documents issued in the other jurisdiction; and to obtain from one jurisdiction the surrender of a fugitive who is found in the other.

Alongside these mechanisms for legal co-operation, there will be a continuing expansion of contacts between lawyers from the Mainland and Hong Kong, and increasing understanding by those lawyers of the two different systems. Again this can only be to the benefit of both jurisdictions.

The Way Ahead

Let me conclude with a few observations. The establishment and maintenance of the HKSAR are long term undertakings, which started with the opening of Sino-British negotiations in 1982, included the resumption of sovereignty on the 1 July 1997, and extend into the future. They depend on the efforts not only of government officials, but also of non governmental organizations and individuals whose contributions have made One Country - Two Systems a reality. I am indeed honoured to be one minute piece of the jig-saw puzzle which has now taken shape. The construction of the new government has by no means been an easy task. It is certainly not a bed of roses. Britain does not have a written constitution. Neither did colonial Hong Kong. However, as from July 1 the Basic Law, which is our mini constitution, has become effective. Constitutional challenges based on the Basic Law may arise for many reasons. For example, a debtor may wish to delay payment of his debt, or a criminal may wish to avoid the sentence that may be meted out to him. Challenges may also arise for political reasons. Whatever the reason, there may be teething problems for the interface of the Basic Law with the laws in force in Hong Kong.

Indeed, the question of the validity of the Provisional Legislative Council has already been tested before the Court of Appeal, which upheld its legality towards the end of July. The Court efficiently, effectively and expeditiously disposed of this issue of public importance and, in the meantime, other prosecutions went on without any delay. The Court scrutinised the events leading up to the formation of the Provisional Legislative Council and held that it was properly constituted under the Constitution of the PRC. Because of the derailment of the legislative 'through-train', it was necessary to put in place a machinery until the government could function normally.

This case shows that, under the legal system of Hong Kong, every citizen has access to the courts, can have an issue determined by the courts, and can challenge acts of the government. Furthermore, barristers volunteered their services without payment to help the litigant who raised the question of legality of the Provisional Legislature, and the judges adjudicated on the issue fairly and squarely rather than dodging the question before the court. This shows how the system of the rule of law has been maintained - it is maintained because the rule of law is built into our system: the system of appointment of judges, and the security of tenure of their offices, the independent legal profession and an informed public who know their rights.

Similar constitutional challenges will continue, but we are ready for them. We shall continue to maintain the legal system, the rule of law and to uphold the Basic Law which are necessary to make One Country - Two Systems a success.

Conclusion

What conclusions can be drawn from the various aspects of the SAR's legal system that I have discussed?

The first is that continuity is the key element. The laws previously in force, the court system, the judges, and international rights and obligations are to a very large extent the same now as before 1 July.

The second conclusion is that the SAR has benefited from a number of developments. It now has a detailed, written, constitution containing many essential guarantees; a Court of Final Appeal has been established in the SAR; and the community can look forward to the greater use of Chinese in the courts, and to increasing legal co-operation with the Mainland.

The vision of 'one country, two systems' is now a reality and, in the new era, I have no doubt that the legal system will be the cornerstone of the SAR's growing success story.