Legal intent

PUBLISHED : Thursday, 05 July, 2012, 12:00am
UPDATED : Thursday, 05 July, 2012, 12:00am


Dear Secretary, Please accept my congratulations upon your new appointment. Although you face many challenges, you have wide experience in many roles, including Bar chairman, High Court recorder and adjunct law professor, and this will stand you in good stead.

Although some people have sought to paint you into a corner over your former membership of the Chinese People's Political Consultative Conference for Guangdong, you will, I feel sure, be able to deploy this experience for the good of Hong Kong, just as did your predecessor Elsie Leung Oi-sie. While some people also criticised Leung's mainland ties, she was, I believe, able to use her contacts to resolve problems behind the scenes, causing a Court of Final Appeal judge (according to WikiLeaks) to describe her as an 'unsung heroine' of the reunification.

In the Department of Justice, you will find some excellent people, who are committed to public service. Any organisation, however, is only as good as its leader, and if what George H.W.Bush called 'the vision thing' is lacking, the best of organisations will underperform. Your task, therefore, will be to provide a sense of purpose, and to lay out a clear agenda for the future of the department.

In the prosecutions division, for example, you will discover that there has been an unprecedented exodus. Whereas, in 2009, the division was led by six Senior Counsel, now only one remains. Seven other directorate-level prosecutors have also departed in that time. Moreover, during the past year, the two newly appointed deputy directors of public prosecutions have resigned, within just months of their appointments. Although some people are in denial over the situation, there are now real problems, and you will need to consider how to restore the division's strength, as this is vital for the rule of law.

It may, for example, be necessary to recruit senior lawyers from the profession to fill some of the top posts, and if this does not work there is the option of recruiting from abroad, as in earlier times. The creation of consultancies for outside professionals is another possibility, as also is a rise in the retirement age for prosecutors, currently 60. Judges, after all, retire at 65, and a strong case now exists for treating prosecutors in the same way. The prosecution portfolio itself is pivotal. If cases are not handled properly, public confidence will suffer. I would urge you, therefore, to explain the basis of decisions, particularly where ministers or prominent figures are involved, and to distance yourself from cases of actual or potential conflict of interest. You would also be well advised to transfer your prosecution powers to the director of public prosecutions, as this will enable you to concentrate on your primary role as legal adviser to the government.

As the head of the Law Reform Commission, you will wish to ensure that its reports are expeditiously handled. It took 11 years, for example, for a decision to be taken by the government on the proposal to make stalking a crime, and this is not acceptable. Although the commission recently issued some guidelines on the time for processing its reports, you will need to crack the whip if reform is to be credible, and if people are to be encouraged to assist the commission.

During the reunification celebrations, there were, yet again, noisy demonstrations, and arrests. People have increasingly taken to the streets in recent times, and there have been complaints of a high-handed response. Although the police must, where possible, be fully supported, I would ask you to bear in mind that, if people are simply letting off steam, it may be wise to exercise restraint. After all, prosecution action should be a last resort, and a warning may be all that the situation requires. Although violence can never be tolerated, a less abrasive approach to street protests can sometimes be salutary.

On security, the elephant in the room is, of course, Article 23 of the Basic Law, which requires that we enact laws to deal with treason, secession, sedition and subversion. It is now 15 years since reunification, and if Hong Kong is to honour its constitutional obligations, it may be hard to defer this issue for much longer. At the government's inauguration ceremony, President Hu Jintao said it is 'essential to put into practice each and every provision of the Basic Law', and the message is clear.

As and when the Security Bureau formulates its plans, I would ask you to ensure that the draft laws are tightly drawn, and satisfy the International Covenant on Civil and Political Rights. As you will agree, nothing must be done to undermine freedom of speech or of the press, and there should be a balance between protecting national security and securing the rights and freedoms of the individual. The public must also be fully consulted, and if a broad consensus can be achieved, based on essential values, this will be a welcome breakthrough, and your own role in achieving this will be crucial.

There is also no rendition agreement for the surrender of fugitive offenders between Hong Kong and other parts of China, including Macau, and vice versa, and this issue must be resolved. Hong Kong, after all, cannot be a refuge for mainland fugitives, and if there is no formal means of securing the return of local fugitives from elsewhere in China, the mainland may assert its own jurisdiction over the cases involving people of Chinese nationality.

It has, however, been said that no agreement is better than a bad agreement, and you will need to ensure that adequate safeguards exist to protect the rights of offenders returned to the mainland, including the right to life. Although talks have dragged on since 1999, your standing, on both sides of the border, can help to move things along, but this must only be on the basis of watertight guarantees.

In the coming months, there will be much on your plate, but many people will wish you well, not least because you are uniquely placed to advance the rule of law. Good luck!

Grenville Cross SC, an honorary professor of law at the University of Hong Kong, served as director of public prosecutions for 12 years, and is now the vice-chairman of the senate of the International Association of Prosecutors