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CommentInsight & Opinion

Unchanged for 50 years? Not Hong Kong's legal system

Lau Nai-keung says row over Elsie Leung's remarks a sign of ignorance

PUBLISHED : Friday, 23 November, 2012, 12:00am
UPDATED : Friday, 23 November, 2012, 3:21am

A month after rejecting a motion to discuss the remarks about our judicial system made by former justice secretary Elsie Leung Oi-sie, the Legislative Council's justice and legal affairs panel invited her and the current justice secretary, Rimsky Yuen Kwok-keung, to attend its meeting next Tuesday.

Leung has declined the invitation, fearing it might have set a dangerous precedent for turning such meetings into McCarthy-style hearings. But the continuous bombardment from our dissidents should encourage her to clarify her remarks at some point. It is nevertheless pathetic that she should have to defend her right to free speech in this supposedly open society.

This fiasco originated from some remarks she made in a closed-door talk, in which she criticised our judges for a lack of understanding about relations between the central government and the SAR, and for interpreting the Basic Law only from a common law perspective. She also noted that it was not the legal system that was enshrined in the Basic Law to remain unchanged for 50 years.

Her first remark is a fact; I would challenge any judge to declare that he is well-versed about the relations between the central government and the SAR and that he adjudicates cases using the perspective of the civil law system in the interpretation of the Basic Law. As far as I am aware, there are none, and our judges all seem rather smug about this professional ignorance and insist this is in the spirit of "two systems".

This is exactly why some people are so sensitive about her remark; it touches a raw nerve. This issue has to be brought up, but attacking Leung is not a constructive starting point for discussion. For one thing, this issue cannot be settled within the SAR and, at a certain stage, the central authorities will have to be brought into the picture, and they will not be intimidated by any institution in Hong Kong and summoned by its Legislative Council.

The charge that Leung's remarks undermine judicial independence in Hong Kong is totally unfounded. I don't blame a layman for being misled into believing this baloney, but coming from the supposedly authoritative professional bodies such as the Law Society and the Bar Association, plus retired Court of Final Appeal judges, this is inexplicable. They, of all people, should know exactly what judicial independence means. It means that when deliberating on cases, our judges are free from the interference of other branches of government.

To begin with, there is no specific case currently under adjudication that Leung could meddle with, and, as vice-chairwoman of the Basic Law Committee, she holds no authority as it is only a consultative body. She, like any other Hong Kong citizen, is free to express her opinions - even if they do not please some people. Kicking up such a fuss over her remarks is going too far.

As for changing the legal system, haven't we inherited from the good old days a noble institution called the Law Reform Commission, and is it not tinkering with our legal system? There have in fact been quite a number of changes since the handover and these have been welcomed by the legal profession as well as the general public. There is nothing wrong or even unusual about changing the legal system; it is routine.

Anyone who has a rudimentary knowledge of the Basic Law will tell you that the "two systems" refer to the capitalist and the socialist systems, and that the former, which is practised in Hong Kong, shall remain unchanged for 50 years from 1997. It would take quite a lot of ignorance and a long stretch of the imagination to make the jump to the legal system. Perhaps that's a very good argument for implementing national education in Hong Kong.

Lau Nai-keung is a member of the Basic Law Committee of the NPC Standing Committee, and also a member of the Commission on Strategic Development


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The whole concept of "one country, two systems" was just a bait designed, originally, for Taiwan, but ultimately used for Hong Kong. Now that the fish has been caught, the bait should of course become useless.
Law or "Lore", there is no independence and separation of the judiciary and political spheres under the regime, witnessed the "Legal Political Commission". "50 years unchanged" is just like one of so many motto. HKers can realistically expect more works of the United Front of which Ms Leung is nothing more than its mouth-piece.
Please, please continue to write these columns so that we may all see clearly the agenda that you seek to impose upon HK people. Otherwise the full extent of your cognitive dissonance might go undetected by those not familiar with such apparently contradictory notions as the implementation of a "perspective of the civil law system" in common law jurisprudence. Now, I have neither Ms. Leung's legal background nor her intimate experience with Hong Kong's legal system, but I am still able to read Article 8 of the Basic Law stating that "The laws previously in force in Hong Kong, that is, the common law...shall be maintained". Or Article 84's allowance for the application of precedents from other common law jurisdictions.
Let no one mistake your operative statement: "...the central authorities will have to be brought into the picture..."
The "baloney" is coming from you, good man, not from Hong Kong's judiciary.
One country 2 system is an academic subject, people really believe it? I think it was being used as a tool by China and British to settle the HK issue. Secondly, as she is currently has no government official role, she has freedom to say whatever she want as a Hk resident. In US, all retired officials can say pro or against the governments and they were never asked to goto congress to defend what they say. Our legco are too busy to try to deal with nonsense, such as challenging someone's comments, but forgot about those living in coffin or cage home, our aging population and diminishing competitiveness ....and many issues...wake up legco academics!


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