RTHK "Letter to Hong Kong"

by Martin Lee

Broadcasted on 21 May 2000 on Radio 3, Radio Television Hong Kong

So Ms. Elsie Leung is given 2 more years to serve Hong Kong as the Secretary for Justice. Under British rule, the title was Attorney General. I've often said in the past that the Attorney General, now the Secretary for Justice, is the most difficult post in the government. Apart from being the head of a very large Department of Justice with the responsibility to decide whom to prosecute and whom not to prosecute, she is also the legal adviser to the Chief Executive and all departments and bureaus in the government. She is also a member of the Executive Council and she attends every sitting of the Legislative Council.

But after Hong Kong has become a Special Administrative Region of China, she in fact assumes even more difficult task. She is now the guardian of our legal system based on the Basic Law under the principle of "One Country, Two Systems" - Hong Kong people ruling Hong Kong with a high degree of autonomy. So her principal job is to defend our legal system-the common law system-to ensure the rule of law continues, so that human rights can be protected.

Ms. Elsie Leung is a very decent person. And she was a very competent and conscientious solicitor. Why then was the Bar not overjoyed with the announcement that she would get another 2 years? After all, the Attorney General, until not so long ago, used to be the titular head of the Bar.

The answer is simple. She made a few glaring mistakes since assuming office.

The first major mistake she made was when she decided not to prosecute Ms. Sally Aw while prosecuting the 3 senior executives under her. The reason she gave was that it was out of public interest-because if she had been prosecuted, then possibly 2000 employees of hers might be out of job. Does it mean, therefore, that if you have only 20 employees, you will be prosecuted; but if you have 20,000 employees, then you will never be prosecuted? The public perception therefore was that Ms. Sally Aw was not prosecuted because she was a close personal friend of our own Chief Executive.

Ms. Elsie Leung told a Legislative Council panel that she had been following strictly the prosecution guidelines of her own department. Well, that means, does it not, that she will continue to make similar decisions of the kind. And Mr. Tung's friends, I suppose, would be happy to hear that.

The second major mistake she made in my view was when she decided not to seek the return of a murderer of 5 women in a flat in Telford Gardens for trial here in Hong Kong. Not only that, she defended the decision of a court in Guangdong to try that man. Again we can only expect that if a similar situation were to arise again, she would do exactly the same thing and let such a person be tried in mainland China although the offence was committed in Hong Kong.

But I think the worst decision of all was when she decided to go to Beijing to seek a reinterpretation of 2 key articles of the Basic Law after the government lost the case before the Court of Final Appeal in the Right of Abode case. Under the common law system, when the Court of Final Appeal has laid down the law, everyone must obey it, including the government. And yet, on this occasion, the government did not accept the court's interpretation and went to Beijing instead to have it overturned, thereby making the Court of Final Appeal a court of semi-final appeal.

We tried very hard to press the government to say that they would never do it again. But neither Mr Tung nor Ms. Leung would give that promise. All they were prepared to say was that it would not be too often. I am sure they are right. It won't happen everyday-only when necessary.

We must do everything within our power now to make sure that it will not happen again, or else the exception will become the rule-as in Singapore, as in Malaysia. Until the government tells us that they would never do it again, I am afraid the sword of Damocles will be hanging over the judges' heads and they know that if they were to give the government another unfavorable interpretation, and they would go to Beijing again to have it overruled.

But to me, the most preposterous remarks ever made by the Secretary for Justice is when she said, and here I quote, "When we realize the Basic Law is the interface between the 2 legal systems, it is necessary for us to have sufficient understanding of the relevant laws and systems of the mainland in order to interpret the Basic Law properly."

What she's saying is that our judges should understand the mainland system so that they could interpret the Basic Law properly. Well if this is not leading the river water into the well and dilute it or to muddy it, I don't know what it is. Her job is to defend the common law system, not to muddy it.

On the very night when the results of the presidential elections in Taiwan came in, the victor, Mr. Chen Shui-bian, now President Chen Shui-bian of Taiwan, said that he would not accept the so-called principle of "One Country, Two Systems" as the formula for reunification with mainland China. He said that presumably because he wasn't impressed in the way the "One Country, Two Systems" policy was implemented in Hong Kong, including of course the rule of law situation. When Mr. Tung decided to extend Ms. Leung's tenure as Secretary for Justice for another 2 years, perhaps, he has unwittingly postponed the happy day of reunification for at least another 2 years.

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