Next prosecutions chief must tread reform path

PUBLISHED : Thursday, 23 December, 2010, 12:00am
UPDATED : Thursday, 23 December, 2010, 12:00am

If one were asked to list some key individuals who perform a direct role in upholding the rule of law in Hong Kong, the chief justice, the secretary for justice and the Court of Final Appeal judges would immediately come to mind. However, if the Basic Law were any guide, then the director of public prosecutions (DPP) should also belong to that list of individuals. His team in the Department of Justice's prosecutions division is specifically referred to in the Basic Law as being tasked with 'controlling criminal prosecutions, free from any interference'. Although this concept is implied in other fundamental rights enshrined in the Basic Law, our mini-constitution wishes to stress the importance of the independence of our prosecuting authorities. Indeed, if prosecutions were seen to be subject to interference, public confidence in Hong Kong's rule of law and 'one country, two systems' would instantly hit rock bottom.

It is therefore imperative that no effort is spared to find the most suitable individual to replace the current DPP, Ian McWalters, when he steps down for retirement in February. The constitutional function of this role is not merely to put suspected criminals behind bars, but also to ensure that law enforcement authorities investigate according to legal procedures, and gather independent evidence, which can be confidently presented to judges or jurors as probative of someone's guilt. No decision to prosecute can ever be taken lightly. The court will act as another gatekeeper before giving judgment, but the decision to prosecute will still subject the accused to the traumatic experience of being a defendant in a trial.

A decision by the DPP not to prosecute is arguably, just as important, if not more so. It shows that despite the law enforcement authorities being convinced they have caught a person committing a criminal offence, the government's lawyers have reviewed the case and the evidence objectively and independently and decided either that no law was breached or that the evidence is not secure enough to prove guilt. A case in point was the decision to drop the case against the activist who spilt champagne on a liaison office guard when celebrating the awarding of the Nobel Peace Prize to Liu Xiaobo .

Whether the decision is to prosecute or not to prosecute, the DPP acts as the first gatekeeper of our individual rights. As members of the public, we hope prosecutors will safeguard us from harm by ensuring all legal procedures are complied with in order to secure conviction. Meanwhile, potential suspects will also hope that the DPP ensures that the case is investigated and prosecuted fairly so that a suspect's liberty is not taken away without strong grounds.

Ideally, there would be a long list of candidates putting themselves forward to take on this important role, but sadly the importance of the job is often underestimated, and so far there is only one candidate being mentioned as having the appropriate enthusiasm to perform those constitutional duties. In McWalters' short tenure, he and his team have initiated a comprehensive plan for reforming the prosecutions division so that it not only performs its constitutional role with greater efficiency, but also has an attractive career path. Whoever takes on the role in February must ensure these suggestions for reform are given serious consideration, if not fully implemented, so that in the not too distant future there will be fierce competition among the city's top lawyers to step into the shoes of the DPP and serve the public as another guardian of Hong Kong's rule of law.