Secretary for Justice's Opening Statement at the
Administration of Justice and Legal Services Panel Meeting
on Wednesday, 13 October 1999
Good morning, ladies and gentlemen. I am glad to have this opportunity to speak to you on the Department of Justice's Policy Objective, the progress made in the past twelve months on the various pledges made in previous years, and the new initiatives set out in our Policy Objective Booklet released last week.
2. The Policy Objective of the Department of Justice is to uphold the rule of law, provide efficient and effective legal services to the Hong Kong Special Administrative Region Government, and to maintain and improve the present legal system.
3. In the past year, we had three targets at the policy objective level.
4. Our first target related to the rule of law. I will discuss this in a few moments' time.
5. The second target was to ensure that our legal services met the reasonable expectations of our clients. In this respect, I am pleased to report that we have been able to meet over 95% of our performance pledges in the past year. This is a good achievement but, of course, is no cause for complacency.
6. Our third target was to ensure that there is continuous improvement to the legal system. We have taken several initiatives in this respect. We introduced five relevant bills into the Legislative Council in the last session. Of these, the Theft (Amendment) Bill 1998 has been passed and has created a new statutory offence of fraud. The other four bills are still before the Council. Other initiatives to improve the legal system included promoting the greater use of Chinese in the law and developing mutual legal assistance with other jurisdictions. I will have more to say on these topics a little later.
7. Let me deal now with the rule of law. As honourable Members are aware, one key aspect of the rule of law is that the Government is subject to the law. No one should doubt that this is the case. Almost every day, cases are brought against the government in the courts. As you know, those cases are dealt with by a fearless, and strongly independent, judiciary. Judicial review of Government's administrative action has a long and important history in the common law world. It continues to be a major feature of our legal system. In 1998, for example, civil proceedings were brought against the Government in 947 cases, 105 of which involved the judicial review of Government decisions.
8. The implementation of the Basic Law has led to a major development in our legal system - the creation of constitutional litigation. Litigants can now have recourse to the courts in order to challenge legislation on the basis that it contravenes the guarantees in the Basic Law. This is a striking demonstration of the rule of law.
9. This development has led to controversy. But this should come as no surprise to us. If one looks at other common law jurisdictions where constitutional review of legislation is possible - the United States is of course the prime example - one finds that court decisions are frequently highly controversial. We must face the fact that, when courts are required to decide upon the constitutionality of legislation, they are drawn into issues that have a much higher policy content than is usually the case. This is inevitable when legislation dealing in detail with highly controversial issues is judged against a constitution that is drafted in broad terms, and that may not expressly deal with those issues.
10. In the case of the Basic Law, there is an added complication. The Basic Law was promulgated by the National People's Congress, and provides the constitutional framework for the principle of one country, two systems. When it was being drafted, one key aspect was subject to great debate - namely who is to interpret the Basic Law? The drafters were faced with two different legal traditions. In the common law world, the judges interpret legislation. In the civil law world, it is not uncommon for the legislature to interpret its own legislation. Eventually, both traditions were woven into the Basic Law. Article 158 states that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People's Congress. It then goes on to give the courts of the Hong Kong Special Administrative Region the power to interpret the Basic Law in adjudicating cases, subject to certain limitations. This sharing of the power of interpretation is part of our new constitutional order. The exercise of those powers of interpretation in accordance with the Basic Law fully complies with the rule of law.
11. We are still in the early days of implementing the Basic Law, and of understanding the full implications of constitutional litigation. My department is devoting a lot of attention to Basic Law issues. There are bound to be areas of controversy. But judicial independence and the rule of law are as strong as ever.
12. A common law system such as ours is capable of dealing with constitutional change without losing its commitment to the fundamentals we all hold dear. The United kingdom is an example of this. Its entry to the European Union affected one of its longest legal traditions - that of Parliamentary sovereignty. It is now facing further constitutional changes as a result of devolution and the enactment of the Human Rights Act. Like this Legislative Council, the new Scottish legislature must comply with a written constitutional document, which limits its powers. No one is certain how these changes will impact upon the British legal system. But members of the community are working together to ensure that there will be a positive outcome. I hope that we can do the same here in Hong Kong, as we cope with our own constitutional transition.
Key Results Areas
13. Let me turn now to my department's six Key Results Areas. In the past year, we have produced good results in all six areas. I am pleased to report that significant progress was made with regard to legal cooperation with the Mainland. Memoranda of understanding in respect of reciprocal arrangements for the service of judicial documents in civil and commercial proceedings, and in respect of the mutual enforcement of arbitral awards were signed on 14 January and 21 June this year respectively. I am sure that honourable Members will agree that the development of legal cooperation with the Mainland is beneficial to the people and businesses of Hong Kong. The achievements in the past year are a reflection of the goodwill on both sides and will help to develop confidence in Hong Kong as an international business and financial centre.
14. In the context of the 1998 Policy Address, my department announced 16 new commitments. Adding the 10 outstanding pledges made since 1994, the Department of Justice is accountable for 26 pledges. Of these:
- we have completed 15;
- we are on schedule on eight;
- two are under review; and
- we are endeavoring to speed up the progress on the one pledge that has fallen behind schedule.
15. I wish to highlight our achievements in three areas, namely the greater use of Chinese in the law, the promotion of the Basic Law and the rule of law, and the development of mutual legal assistance with other jurisdictions.
Use of Chinese
16. We have taken several steps to promote the greater use of Chinese in the law. My department's English-Chinese Glossary of Legal Terms is an essential tool for developing consistent usage in bilingual legal terminology. In September 1998, the third edition of the glossary was published. We expect to publish the first edition of the Chinese-English Glossary of Legal Terms on schedule.
17. With regard to those criminal cases that were conducted in Chinese, we met our targets of handling in-house 100% of magistracy appeals and criminal appeals in the Court of Appeal; about 50% of trials in the District Court; and 100% of the trials in the Court of First Instance. Counsel in Prosecutions Division were provided with a regularly updated English-Chinese glossary of legal terms for use in criminal proceedings.
18. My department has also been producing bilingual court documents, and preparing bilingual government franchises, contracts and tender documents.
19. I continue to chair meetings of the Committee on Bilingual Legal System, which includes representatives from the Judiciary, Bar Association and Law Society. Early this year, the Committee launched a 3-month pilot project to translate important case precedents into Chinese. The experience gained from the pilot project will help us develop strategies for the selection and systematic translation of important judgments, which would facilitate the wider use of Chinese in court.
Promotion of the Basic Law and rule of law
20. Turning to our promotional activities, in order to foster better understanding of Hong Kong's legal system and to instill public support for the rule of law, we have produced a new series of legal docu-dramas, which was screened on TVB from November 1998 to March 1999, and an educational video, which was distributed to schools, community organisations and civic education bodies. Publications on prosecution work and the law-making process, and a Basic Law Index, have also been distributed.
21. Members of my department took part in various public debates, which have contributed to a deeper appreciation of Hong Kong's legal system and the operation of our new constitutional order. We have also honoured our pledges
- first, to promote knowledge within the civil service of the Basic Law, and of the national laws that apply in the Hong Kong Special Administrative Region; and
- secondly, to promote public understanding of the department's work, aspects of the legal system, and the rule of law through our homepage, by organising and conducting overseas speaking engagements, by briefing numerous overseas visitors, attending overseas conferences, and (locally) by giving many talks and publishing many articles.
We will continue to promulgate understanding of the legal system in ways which will benefit the public at large.
Mutual legal assistance
22. With regard to mutual legal assistance with other countries, honourable Members will recall that the bilateral agreements that had, before Reunification, been extended to Hong Kong by the United Kingdom ceased to apply on 1 July 1997. Since then, my department has been giving priority to the establishment of new bilaterals. I am pleased to report that, in 1998, eight additional bilateral agreements were negotiated in respect of mutual legal assistance in criminal matters, surrender of fugitive offenders, and transfer of sentenced prisoners. This year six further bilaterals have already been negotiated, and negotiations for four other agreements are well advanced. We will commence negotiation of agreements on reciprocal enforcement of judgments in civil and criminal matters as soon as authorisation is obtained from the Central People's Government.
23. Turning to our other pledges, we have fulfilled the pledges -
- to create an electoral resource library;
- to publish two reports and two consultation papers of the Law Reform Commission;
- to provide support for new activities relating to information technology, telecommunications and broadcasting, and the implementation of the Mandatory Provident Fund;
- to provide advice on the establishment of the new Information Technology and Broadcasting Bureau, and on the re-organisation of district organisations;
- to improve our ability to conduct criminal appeal cases which go to the Court of Final Appeal, and to conduct all significant criminal cases which proceed, or seek leave to proceed, to that Court; and
- to establish a permanent Information Technology and Resources Unit.
24. Other pledges that are on schedule are our pledges -
- to conduct mock trials in the Mainland;
- to provide training in the Common Law for Chinese government lawyers of the Mainland;
- to continue to promote HKSAR's participation in international law fora;
- to identify areas in which HKSAR may benefit from international co-operation and pursue appropriate arrangements; and
- to promote public knowledge of the legal system.
25. The two targets that are under review are :
- to review existing legislation to identify outdated and unclear provisions in existing legislation; and
- to complete the drafting of adaptation bills in respect of all the 640 ordinances.
26. We are behind schedule on only one pledge, which is to obtain the necessary authorisation from the Central People's Government and negotiate agreements on reciprocal enforcement of judgments with other jurisdictions. However, I am optimistic that progress will soon be made in respect of the reciprocal enforcement of judgments.
27. In the next 12 months, we will continue to press ahead with our work in all six Key Result Areas.
28. In addition, we will implement 16 new initiatives.
29. In relation to the work of the Legal Policy Division, we will:
- develop expertise in respect of the new constitutional order, including Basic Law litigation;
- develop expertise in respect of legislative powers, procedures and practices under the Basic Law;
- develop general awareness of Basic Law issues by preparing Information Notes on many aspects of the Basic Law;
- take forward the pilot training scheme for Mainland lawyers on Hong Kong's laws and legal system; and
- present further reports under international conventions and covenants.
30. In relation to the work of the Law Drafting Division, we will conduct a pilot exercise to re-draft existing legislation in plain, user-friendly legal language.
31. In relation to the work of the Civil Division, we will develop a specialized team for inquiries into market misconduct following the de-mutualisation of the Stock Exchange and the Futures Exchange.
32. In relation to the work of the Prosecutions Division, we will:
- develop a specialised team for prosecution of computer crimes; and
- develop prosecution expertise in the areas of fraud and corruption.
33. In relation to the work of the Administration and Development Division, we will:
Legal Adviser on Legislative Affairs
- implement more vigorous publicity efforts to foster understanding of the rule of law; and
- formulate proposals for the further development of a bilingual legal system.
34. One further development that I wish to mention is our appointment of a specialist consultant to advise on legislative affairs. I have already referred earlier to our commitment to develop expertise in respect of legislative powers, procedures and practices, and this appointment is in furtherance of that initiative. I think Honourable Members will agree that the development of sound legislative practices and procedures within the constitutional principles of the Basic Law is a matter of fundamental importance. The appointment of a former Legislative Council Legal Adviser (Jonathan Daw) to advise on these matters will, I hope, contribute to the common purpose of Government and the Legislature in developing parliamentary practices appropriate to Hong Kong's unique constitutional status.
35. By parliamentary practices I mean the rules and established procedures which reflect and support the constitutional working relationship between the executive authorities and the legislature. For example the rules relating to the introduction of bills and motions for amendment to bills, motions on financial business, and the procedures for scrutinising subsidiary legislation. Our consultant's role in these areas is to offer impartial, objective advice in the best interests of the community.
36. Honourable Members, I hope that the appointment of Mr Daw will show the Government's genuine desire to better perform our work relating to legislative affairs, and our determination to work closely with, and secure greater support from, the Legislature.
37. Madam Chairman, before I conclude, I wish to say a few words about the difficulties that the legal profession has encountered during the last year or so. The economic downturn has hit the profession badly, and morale is low in many quarters. I cannot offer any quick fixes, but I do wish to maintain a continuing dialogue with the two professional bodies. Any suggestions that they have for dealing with the situation will be given careful consideration. One of the concerns of the profession - the need for a review of legal education - is being actively considered by a Working Group, which has representatives from the professional bodies, the two law faculties and the Administration. I am hopeful that the first stage of the review can begin early next year.
38. The Department of Justice is determined to play its part in realising the vision of "One Country, Two Systems" and the principle of "Hong Kong people ruling Hong Kong". We are fully committed to upholding the rule of law under the Basic Law, and are ready and eager to take on the challenges that lie ahead.
39. I am now happy to answer any questions that Honourable Members may wish to raise.