Upholding the rule of law

PUBLISHED : Wednesday, 22 December, 1999, 12:00am
UPDATED : Wednesday, 22 December, 1999, 12:00am

I refer to the article headlined, 'Faith in Judiciary 'must be restored' ' (South China Morning Post, December 17).

The Department of Justice wishes to place on record that it never regards the power of the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law as a 'trump card' when cases come to court. And it is certainly not a 'knife hanging over the head of the court'.

The NPCSC interpretation in respect of two Basic Law provisions affecting the right of abode was a response to an extraordinary problem.

It is clear that the central authorities' preference initially was for the matter to be resolved within Hong Kong, if that were at all possible. Moreover, the administration has repeatedly emphasised that it will not seek an NPCSC interpretation save in highly exceptional circumstances.

There is therefore no basis for suggesting that the courts are under a threat of further NPCSC interpretations, or that the administration will seek such an interpretation if it loses an important Basic Law case.

In certain circumstances, the Court of Final Appeal is itself required by Article 158(3) of the Basic Law to seek an interpretation by the NPCSC. That is part of the court's constitutional role.

If, in a case before the Court of Final Appeal, it is arguable that those circumstances exist, the lawyers acting for both parties have a professional duty to assist the court in applying Article 158(3). This duty may entail arguing that the court must seek an interpretation.

In its judgment last January, the court endorsed the property of putting such submissions to the court, since they relate to the court's jurisdiction.

Where such an argument is raised, it is wrong to allege that the lawyer concerned, or the party for whom he or she is acting, is putting pressure on the court, or is undermining Hong Kong's judicial independence or high degree of autonomy.

Public confidence in the independence of the Judiciary is clearly vital. The HKSAR Government is committed to upholding the rule of law and protecting judicial independence.

According to an International Gallup Poll conducted in October 1999, 93 per cent of Hong Kong people believe that 'all are equal before the law'. This fact speaks for itself. Public confidence in judicial independence exists.

We are very fortunate to have in Hong Kong a judiciary of international standing, and we should all work to preserve this invaluable characteristic of Hong Kong.

R. ALLCOCK Solicitor-General (Acting)