LC Paper No.

CB(2)1698/99-00(03)

Measures to promote the rule of law and

judicial independence, and to enhance confidence in
Hong Kong’s legal system

Background

The rule of law and judicial independence are key elements

in Hong Kong’s legal system, and cornerstones of Hong Kong’s way of
life. However, concerns have been expressed that the request for an
NPCSC interpretation of two articles in the Basic Law undermined
confidence in the rule of law and judicial autonomy. Those concerns
need to be addressed, and confidence in Hong Kong’s legal system
boosted.

2. The legal, constitutional and political arguments for and

against the request for the NPCSC interpretation have been expounded at
length since the request was made in May 1999. This paper does not
seek to prolong that debate, but the Department of Justice repeats its firm
view that the request was lawful and constitutional, and did not interfere
with judicial independence. Indeed, the decision of the Court of Final
Appeal on 3 December 1999 supports that position.

Perception

3. The right of abode issue has, nevertheless, created a

perception amongst some people, both in Hong Kong and overseas, that
the rule of law has been undermined and confidence in judicial
independence impaired. The Department of Justice considers that
confidence in Hong Kong’s legal system can be boosted in the following
ways –

(1) by restating the Government’s continued commitment to the

rule of law and judicial independence, and ensuring
scrupulous observance of those concepts;

(2) by correcting some misconceptions about the right of abode

issue;

#13759v5
 2

(3) by clarifying issues relating to judicial independence;

(4) by defending the courts if they come under unwarranted

attack;

(5) by continuing to promote local and overseas awareness of

the rule of law and of our legal system;

(6) by reassuring the community about future resort to NPCSC

interpretations.

Commitment and observance

4. The Chief Executive, Secretary for Justice and other senior

officials regularly restate the SARG’s commitment to the rule of law and
judicial independence. They are well aware that these concepts are the
cornerstones of Hong Kong’s success, and of the protection of rights and
freedoms.

5. This commitment is matched in practice by a scrupulous

observance of those concepts. No one is above the law in Hong Kong.
Equality before the law is guaranteed by Article 25 of the Basic Law, and
judicial independence is guaranteed by Articles 2, 85, 88 to 93 of the
Basic Law. It is the duty of members of the Department of Justice,
when advising on government proposals or practices to ensure that these
guarantees are observed.

Misconceptions

6. Many of the concerns expressed about the request for the

NPCSC interpretation were based on a thorough understanding of the
background facts, and of the legal and constitutional implications of the
request. However, the issues involved were complex and, as they were
reported both locally and overseas, many misconceptions arose. The
effect of these misconceptions was to create unnecessary concern about
our legal system. Listed below are some of the misconceptions that
have come to the attention of the Department of Justice.
 3

Misconceptions True position

(1) The NPCSC can rule on The NPCSC can only interpret the
any aspect of Hong Kong Basic Law, and other national laws
law. that apply to Hong Kong, but cannot
interpret local legislation.

(2) A losing party to An NPCSC interpretation does not

proceedings before the undo a court decision in favour of a
CFA could ask the NPCSC particular party to the proceedings.
to overrule the decision.

(3) The CFA no longer has the The CFA’s decision in favour of a
power of final particular party remains final even if
adjudication. the NPCSC subsequently interprets
the Basic Law in a different manner.

(4) An NPCSC interpretation The NPCSC does not decide

takes away the courts’ whether particular individuals have
future power of rights under the Basic Law, and the
adjudication in respect of courts continue to do so. When
the provision interpreted. adjudicating cases, the courts may
need to determine the meaning of
the NPCSC interpretation, and
whether the interpretation applies to
the cases before them.

(5) The SARG will seek a The SARG did not seek an NPCSC
request whenever it loses a interpretation in respect of two
Basic Law argument in the Basic Law rulings by the CFA in
CFA. January 1999. It would only seek
such an interpretation in highly
exceptional circumstances.

(6) The SARG sought the The request for the interpretation
interpretation during the was made several months after the
CFA hearing, and therefore CFA decision, and did not affect the
 4

interfered with the right to right to a fair trial.

a fair trial.

(7) Counsel for the SARG did Counsel did address the CFA on this
not refer to the CFA’s issue.
obligations under
BL 158(3).

7. The Department of Justice has sought to correct these

misconceptions through speeches, articles, letters to newspapers and
briefings, both locally and overseas. It is our impression that those who
study the issues closely are able to appreciate the true position.
However, given the complexity of the legal issues involved, many people
may still have a hazy idea of them. The Department of Justice will
therefore continue its efforts to clarify the position.

Judicial independence

8. The Department of Justice accepts that the NPCSC

interpretation does raise the issue of judicial autonomy. The fact that
the interpretation was binding on SAR courts indicates that, in respect of
interpretations of the Basic Law, the Hong Kong judiciary does not have
the ultimate authority. However, this is a principle set out in the Basic
Law, and no reduction in the courts’ powers was created by the right of
abode issue.

9. The independence of the judiciary is, of course, of vital

importance. But there is no doubt that our judges continue to enjoy
complete independence since –

(1) they are appointed in accordance with the recommendation

of an independent commission;

(2) they enjoy security of tenure;

(3) they decide cases impartially, and without fear or favour.

10. Two indications of the continuing independence of the

judiciary may be given.
 5

(1) Last year, three senior judges (including two Vice Presidents
of the Court of Appeal) gave interviews at the time of their
retirement. They were Mr Justice Mortimer, Mr Justice
Findlay and Mr Justice Nazareth. They all confirmed that
there has not been any interference with judicial
independence since the handover; they all agreed that the
interpretation by the NPCSC was not in breach of the rule of
law; and they all agreed that there was no threat to judicial
independence. They spoke about the perception that the
court’s independence had been eroded, but they were of the
view that such perception was wrong.

(2) Out of a total of more than two thousand civil cases

involving the SARG that were decided in 1998 and 1999,
about 10% were decided against the Government. 183 of
the cases decided in this period were applications for judicial
review of government decisions, of which about 21% were
decided against the Government.

11. The Department of Justice considers it unfortunate that

discussion of the NPCSC interpretation may have unwittingly given rise
to the perception that our judges no longer decide cases independently,
and without fear or favour. Nothing could be further from the truth.
The Department of Justice has been emphasizing this point in speeches,
articles, letters to newspapers and briefings.

12. We would also urge commentators not to suggest that, if a

particular case is decided in favour of the SARG, this will give rise to a
perception that judicial independence has been undermined. It should
not need to be explained that judges decide cases in accordance with the
facts and law. Members of the community should not be encouraged to
perceive that a decision in favour of the SARG was not reached
impartially, or that the judiciary is vulnerable to political pressure.
Instead, they should be encouraged to view the judiciary for what it is – a
strong and independent body of judges who protect the rights of members
of the community, regardless of political considerations.
 6

13. Fortunately, opinion polls indicate that members of the

public do have confidence in the judiciary.

(1) According to a Gallup International and Asian Commercial

Research in October last year, over 90% of respondents
considered that, in Hong Kong, all were equal before the law
and human rights were respected.

(2) Surveys conducted by the Hong Kong Policy Research

Institute indicate that public confidence in the judicial
system in December 1999 (i.e. after the NPCSC
interpretation) remained at about the same level as that in
January 1999 (before the interpretation). The figures were
96.4 and 100.3 respectively.

14. Other indications of confidence in the independence of the

judiciary are the numbers of applications for legal aid related to judicial
review, and the numbers of applications made for judicial review. The
figures are as follows.

(1) Applications for legal aid related to judicial review

Immigration Vietnamese
related Boat People Others Total

1998 2923 429 36 3388

1999 8591 249 84 8924

(2) Applications for judicial review

1998 - 87

1999 - 132

2000 - 184
(Jan to March)

These figures demonstrate that those aggrieved by government decisions

have confidence in the judiciary’s commitment to the independent and
impartial adjudication of claims against the government.
 7

Defending the courts

15. At the Opening of the Legal Year this year, the Chief Justice,
Mr Andrew Li, discussed the development of constitutional case law in
1999. He commented that -

‘where the courts come under unwarranted attack, it is the

constitutional responsibility of the Government, that is the
executive authorities, to explain and defend the fundamental
principle of judicial independence, whether or not the
decision in question is in its favour.’

He went on to say that he was sure that the Government understands and
accepts the importance of that responsibility.

16. The Administration in general, and the Department of Justice

in particular, does understand and accept the importance of that
responsibility. For example, the Secretary for Justice included a
discussion of judicial independence in her own speech at the Opening of
the Legal Year, and the Acting Solicitor General responded positively to
the Chief Justice’s comments in RTHK’s ‘Viewpoint’ programme on 30
January 2000. A copy of that response is at annex 1.

Promoting awareness of the rule of law

17. Notwithstanding the public confidence in our legal and

judicial systems, the Department of Justice has in recent years pursued a
vigorous public education programme to foster better understanding of
Hong Kong’s legal system and to instill public support for the rule of law.
A list of the projects completed and planned is at annex 2.

18. Our latest initiative is a series of 13 articles to promote the

rule of law, being published every two weeks in a Chinese language
newspaper. These articles will cover such topics as the nature of
judicial review, and the concept of judicial independence. Two articles
have been published so far. We consider that public confidence in the
rule of law, and in the judiciary’s ability to enforce it, will be enhanced
by this continuing public education programme.
 8

Assurance as to the future

19. The Administration has repeatedly emphasized that it would not

seek an NPCSC interpretation save in highly 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.
It should also be remembered that the decision to seek an NPCSC
interpretation in respect of the right of abode issues in May 1999 was
made in the following circumstances –

(1) there were good grounds for seeking an NPCSC

interpretation, rather than an amendment, of the Basic Law;

(2) there was no other way in which the problems arising from
the CFA’s judgment could be resolved otherwise than with
the assistance of the CPG; and

(3) the CE considered it to be imperative in the public interest to

seek the interpretation.

20. The Department of Justice hopes that the Administration will

not again be faced with a problem of the magnitude of the right of abode
issue, and that another request by the Chief Executive for an NPCSC
Interpretation will not be necessary. There is no basis for the fear that
such a request would be lightly made or accepted.

******************
 9

Annex 1

Judicial Independence
- a statement by Bob Allcock, SG(Ag), on
RTHK’s ‘Viewpoint’ programme for 30 January 2000

At the Opening of the Legal Year two weeks ago, the

Chief Justice, Mr Andrew Li, discussed the development of
constitutional case law in 1999. One of his comments received
wide publicity. He said (and I quote) –
‘where the courts come under unwarranted attack, it is
the constitutional responsibility of the Government, that
is the executive authorities, to explain and defend the
fundamental principle of judicial independence, whether
or not the decision in question is in its favour.’
He went on to say that he was sure that the Government understands
and accepts the importance of that responsibility.
2. I can assure listeners that the Administration in general, and
the Department of Justice in particular, does understand and accept
the importance of that responsibility. I will explain why.
Why does judicial independence matter?
3. Judicial independence is of vital importance. Unless the
administration of justice is in the hands of impartial judges, who are
part of an independent judiciary, legal rights and guarantees would
be worthless. People must have the confidence of knowing that
their disputes will be dealt with, on their merits, by independent and
impartial judges free from outside influence or pressure.
How is judicial independence guaranteed?
4. The Basic Law guarantees the continuity of judicial
independence. In particular, it provides that judges shall be
appointed on the recommendation of an independent commission,
and shall have security of tenure.
5. In practice, there is no doubt that every judge in Hong Kong,
in deciding a case, does so according to his or her own judgment,
and without fear or favour.
 10

Constitutional controversies
6. Nevertheless, judgments are sometimes controversial. Courts
and judges are not immune from criticism. Judgments on important
issues should be vigorously debated in a society that values the
freedom of expression. However, as the Chief Justice remarked in
his speech, it is important that any such debate should be objective
and rational. But what can be done if it is not?
Contempt of court
7. In extreme cases, criticism may amount to contempt of court.
Where this is so, the Secretary for Justice can bring proceedings
against those responsible, and the court can impose penalties on
them. This happened in 1998, when a local newspaper carried out
a campaign aimed at members of a tribunal and the judiciary. Its
articles were published maliciously, in bad faith, and were
‘scurrilous, abusive, shocking and reprehensible’.
8. However, criticism must pass over a very high threshold
before it amounts to contempt of court. It must be calculated to
undermine public confidence in the administration of justice. Some
comments on decisions of the Court of Final Appeal last year were
highly critical. But the Department of Justice, having considered
them very carefully, came to the view that none amounted to
contempt of court.
What else can be done?
9. Where critical comments do not amount to contempt of court,
what should be done about them? Some commentators have
suggested that the Secretary for Justice should defend all court
decisions. Does this mean that, if someone says a particular
decision was wrong, the Secretary for Justice should publicly
disagree, and state that it was correct? This cannot be right. It
suggests that court decisions need the endorsement, or seal of
approval, of the Secretary for Justice. Such a view undermines,
rather than supports, the independence of the judiciary.
10. What, then, is the duty of the executive? According to the
Chief Justice, its duty is ‘to explain and defend the fundamental
principle of judicial independence.’
Defending judicial independence
11. If, for example, someone should suggest that only those
 11

lawyers who support the government should be appointed as judges,

or only those judges who give decisions favourable to the
government should be promoted, this would clearly be an attack on
judicial independence. The government would then be under a
constitutional duty to explain that such suggestions were inconsistent
with judicial independence, and to refuse to accept them.
12. The Administration accepts that it has this duty, and is alert to
discharge it if necessary. For example, after the Court of Final
Appeal’s first decision in the right of abode cases, last January, some
critics suggested that the court should be asked to ‘rectify’ its
judgment. The Administration refused to ask the court to do so,
although it did seek a clarification of its decision. As the
Administration subsequently explained, there was no legal basis for
asking the court to reverse its original judgment where there was no
case before it, nor would it be acceptable to do so. It also explained
that if, in another case, the court were invited to reconsider its
decision, it would be unlikely to come to a different conclusion. It
pointed out that, if the court did come to a different conclusion, it
might be criticised as having yielded to political pressure instead of
making a rational judicial decision. This would have damaged the
court’s credibility.
13. Instead, another way was found to resolve the problems arising
from the decision. That was to request the Standing Committee of
the National People’s Congress to exercise its power to interpret the
Basic Law. This solution was, of course, controversial. But it
was lawful and constitutional, and it avoided subjecting the courts to
political pressure.
14. Throughout the controversies of last year, the Department of
Justice remained respectful of the judiciary. Indeed, members of
that Department must do their best to inspire respect for the judiciary.
As a former president of the American Bar Association said –
‘If respect for the courts and for their judicial process is
gone or steadily weakened, no law can save us as a
society. Lawyers, whatever their views on
controversial decisions, must inspire respect for the
judiciary.’
My colleagues in the Department of Justice and I have the greatest
respect for members of the Hong Kong judiciary. And I urge you
 12

all to share our confidence in their ability, integrity, impartiality and

independence.

#12632v5
 13

Annex 2
Programmes to promote
the rule of law and the legal system in Hong Kong

In order to foster better understanding of Hong Kong’s legal system

and to instil public support for the rule of law, the Department of Justice has
pursued a public education programme to explain the legal system in the past
3-4 years. Apart from various publications, the Department has also
produced an education video on the legal system (1996, 1998 editions) and
two series of TV docu-dramas, one screened before the Handover and one in
1998/99. Following is a summary of the projects completed before the end of
1999:

Publications:
1. “The Legal System in Hong Kong” – the publication was updated in
1998 and was widely distributed. The book is also available for sale at
the Government Publications Centre;
2. Department of Justice 1998 – a biennial report that summed up the work
of 1996 and 1997; and
3. The Prosecutions Division Yearly Review 1998 – a new initiative in
1998 on the part of the Prosecutions Division to increase the
transparency of the work of the Division. Copies of the report were
distribution to the legal sector and other interested bodies.

Reference materials:
A wide range of publications were produced by the Department which can be
served as useful reference tool to the legal profession, academics, students
and members of the public:
1. “Prosecution Policy – Prosecutions Guideline for Government
Counsel” – an updated version of an existing publication (distributed to
the legal sector and interested bodies for reference);
2. The 3rd edition of the English-Chinese Glossary of Legal Terms – a
major updating of an earlier publication after Reunification (available for
sale at the Government Publications Centre);
3. Basic Law Index – a new initiative by the Legal Policy Division which
can be served as a quick reference to those who studied the Basic Law;
 14

4. “Legislative Drafting in Hong Kong – Crystallization in Definitive

Form” – a new initiative by the Law Drafting Division; and
5. The first edition of the Chinese-English Glossary of Legal Terms –
second phase of the glossary project.

TV programme/VCDs
1. A 10-minuite video on the Legal System in Hong Kong titled “Ranging
free within the Law” and a VCD version was produced and had been
distributed to schools, community organisations and civic education
bodies in late 1999;
2. The 2nd series of docu-drama (10 episodes) produced by RTHK was
screened on TV from November 1998 to March 1999;
3. A VCD containing 6 of the episodes of legal docu-drama was produced
and had been distributed at the Law Week ’99 and other events; and
4. Two information kiosks were set up at venues of the Law Week ’99
organised by the Law Society of Hong Kong in December, 1999
(available at the kiosks were a BLIS demonstration and an interactive
quiz designed to test the legal knowledge of participants).

New Initiatives for 2000/1 and 2001/2

A new programme for 2000/1 and 2001/2 has been planned to
strengthen the understanding and appreciation of the rule of law, assure the
public of the Government’s determination to maintain the rule of law and the
existing legal system, and enhance understanding of the interface between
the Hong Kong’s legal system and the Mainland system. Following are
some of the projects planned:

Publications:
1. Department of Justice 2000 (Biennial Report) – summing up the work of
the Department in 1998 and 1999 was published in April 2000, CD-Rom
of the report was also produced for wide distribution ;
2. Prosecutions Division Yearly Review 1999 – a comprehensive review of
the work of the Division was published in March, 2000, and
3. “Victim of Crime Charter” booklet/poster/TV API – an updated version
was re-launched in April 2000
 15

Video/VCD/TV drama series:

1. A video/VCD on law formulation and drafting process being produced
by RTHK with the assistance of the Law Drafting Division is expected to
complete in mid-2000.
2. The 3rd series of Docu-drama (13 episodes) is being produced by RTHK
and is scheduled to be on air starting from April 23, 2000. A wide range
of topics/concepts have already been identified (e.g. judicial review,
corruption, contempt of court, counterfeit goods-related crime, computer
crime etc.); and
3. Two other educational videos/VCDs have been planned for 2001/2: One
on the legal interface between the Mainland and Hong Kong for
distribution to secondary schools, visitors and for training purpose; and
the other on various basic legal concepts for distribution to secondary
schools.

Other Community Projects:

1. The Department and the Department’s Local Government Counsel
Association co-organised a series of 14 school talks to secondary schools
from mid-February to mid-April 2000; and
2. The Department also contributed to the Basic Law 10th Anniversary
roving exhibition to promote the understanding of the rule of law.

Homepage:
A full set of Bilingual Laws Information System and information on the
Department are being updated regularly. Also available on the homepage
are speeches and statements by SJ and other Law Officers on various
occasions.

Other regular activities (local and overseas):

1. Counsel speaking at seminars organised for civil servants on Basic Law,
and the national laws that apply in the HKSAR;
2. SJ and senior officers briefing overseas visitors, journalists and local
consulates;
3. SJ, LOs and other senior officers making speeches regularly in press
conferences, public functions, forums, TV/radio talk shows and luncheon
talks;
 16

4. SJ and other officers regularly contributing op-ed articles to the press and
other professional publications (e.g. HK Lawyer); and
5. LOs taking part in overseas speaking engagements; and attending
overseas conferences to explain the work and decision of the Department.

PR & I Unit
April, 2000