An independent director of public prosecutions would contravene the Basic Law, the government said yesterday. That verdict came after the former prosecutions director, Grenville Cross, called for the transfer of prosecutorial power from the Secretary for Justice to ensure impartiality.
In a position paper prepared by the Department of Justice and submitted to lawmakers yesterday, the department defended the current arrangement, under which the justice secretary has ultimate authority on which cases to prosecute.
'Article 63 of the Basic Law would not permit an independent office of the [director of public prosecutions],' the paper said.
The article stipulates: 'The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.'
The government's statement comes ahead of a Legislative Council panel meeting on Monday to discuss the idea of an independent public prosecutor.
In an article published in the South China Morning Post last Thursday, Cross, now an honorary professor of law at the University of Hong Kong, said there was 'the need for the secretary to withdraw from involvement in the prosecution process, and to cede responsibility to a politically neutral director.'
Cross served as prosecutions director between 1997 and 2009. The Department of Justice made a number of controversial decisions during his tenure, including opting not to prosecute Sing Tao newspaper tycoon Sally Aw Sian for fraud, or financial secretary Antony Leung Kam-chung, who bought a car for his family ahead of his announcement of an increase in the First Registration Tax on vehicles. It also granted diplomatic immunity to Zimbabwe's first lady, Grace Mugabe, who allegedly assaulted a journalist in Hong Kong.
The government paper said the current system had been working well. 'The Secretary for Justice as head of the prosecution service is subject to constitutional and stringent balances,' the department said, adding that in practice the DPP and other government counsels made the vast majority of prosecution decisions, while the justice minister made prosecution decisions in some cases which were brought to his attention.
'As head of the department of justice under the constitution, the Secretary for Justice cannot abdicate from his constitutional duty by a complete transfer of is prosecution responsibilities to the DPP or otherwise,' the paper read. It went further by arguing that the 'wholesale delegation' of prosecution powers to an unelected DPP could 'undermine the move to greater accountability'.
Audrey Eu Yuet-mee, a Civic Party legislator and a former chairwoman of the Bar Association, said having an independent DPP would not solve the fundamental problem. The post of secretary for justice should not be a political appointment at all, she said. 'The secretary for justice is accountable to the chief executive and is a political animal. He has lost independence ... A major problem cannot be solved by minor modifications.'