Safeguard the legal role
Rumour is rife over the successor to Daniel Fung Wah-kin, as the Solicitor-General. Until Tuesday, the favourite was Kenneth Chow Charn-ki, a barrister in private practice. On Wednesday, however, there was a sudden turn of events, and Carson Wen Ka-shuen, a partner of Siao, Wen and Leung became the even hotter favourite.
As confirmed by the Secretary for Justice, the selection committee has come out with only one recommendation and not a short list. So who is the chosen one? And is he the right Solicitor-General for Hong Kong? On Tuesday, a number of Legco members expressed reservations over Mr Chow because of his political role and affiliation. He is a delegate to the Chinese People's Political Consultative Conference, formerly a founding member of the Democratic Alliance for the Betterment of Hong Kong (DAB) and currently a member of the Liberal Party.
However, the same could be said of Mr Wen, who has been a representative of the National People's Congress (NPC) since 1992, and a member of the Hong Kong Progressive Alliance. The latter has currently five members in Legco, three of whom elected by the Election Committee of 800 and the other two by uncontested functional constituency elections.
Both men have long been known for their connection with mainland organisations and active participation in events involving them.
In other words, both share some distinctive features with the present Secretary for Justice, Elsie Leung who was an NPC representative at the time of her appointment.
This also raised questions at the time. Miss Leung never resigned from the post, but merely allowed her term to expire without seeking a further term.
Miss Leung's answer to queries on a candidate's political role is that a person's political views should not be an obstacle to his appointment as Solicitor-General. However, the question is not whether a person's political views - or status - should be an obstacle, but whether a person is chosen because of the political position he has taken, and whether senior government positions are used as rewards for taking those positions.
Particularly where a candidate's legal credentials are not recognised to be outstanding, one must ask what the public's perception is likely to be, and how the appointment would effect confidence in the professional independence of the office in giving legal advice to the Government and in devising legal policies.
This is even more pertinent when one comes to view prosecution policies. At the moment, Hong Kong does not have an independent prosecution authority. The Director of Public Prosecution, as well as the Solicitor-General, are under the Secretary for Justice. The latter's influence on prosecution policy, and his potential to be considered for the post of Director of Public Prosecution are matters to which one must have regard.
When the Secretary for Justice was asked whether someone with little experience of high court advocacy can be suitable for the post, she replied that it was not necessary that the Solicitor-General should be able to represent the Government in court, as Mr Fung had done. On the other hand, he does have to explain Hong Kong's legal policies abroad, and so inter-personal skills are important.
It is sad to hear the Secretary say that to be convincing on matters of legal policy or legal system one needs inter-personal skills rather than advocacy. After all, he has to convince the international legal community.
It is even sadder to note that, increasingly, senior posts in the Department of Justice are seen to be about public relations and not about the law.
In the misty days of the English tradition, the prosecution of murders and important criminal cases were personally conducted by the Attorney General. Even if this is no longer practical in the modern day, the emphasis that top legal officers must be from the top of the legal profession is still valid.
Hong Kong is rapidly losing this. It will be the saddest day of all if the Department of Justice, which is responsible for legal policies concerning the legal profession, fails completely to retain the legal profession's respect. When power over one is held in the hands of those one cannot respect, public life will become totally cynical.
The questions of who is the chosen one and who is the more suitable candidate are riveting. But a far more fundamental question is what is the role of the Solicitor-General and the Department of Justice as a whole in the Government? If the role is to ensure that the Government acts within the law, in letter and in spirit, and to safeguard the administration of justice and the right of citizens under the law, then one would need to fill top posts with people of great legal learning, presence, standing, integrity and the strong independence and loyalty to the principles of the law bred into them by years of practice. Such people will have no qualms about telling the Government what it cannot do because it is unlawful.
But it has become increasingly clear that this is no longer what the Department of Justice is expected to do. Even in public statements, the position taken is that they are a 'technical' department offering 'legal services'. It is like a client who goes to a lawyer and says, 'I want to do this; you work out what story to tell'.
The lawlessness and legal illiteracy of senior officials in policy bureaus is not an accident. It is the direct result of the downgrading of the traditional role of the Government's own legal advisers.
If even the top legal officers were to say, 'I have no choice; I work for my client and follow instructions; I can only put forward what is in its favour' why should one expect the Government to look for top legal minds? Since so often one has to litigate against the Government, and no accident, if the Government is more and more ready to disregard whether something is lawful or not, why should one want the top guns to be on its side? Indeed, as the Government downgrades the role of independent legal advice, it will become harder and harder for any real legal 'top guns' to wish to serve the Government.
The sickness is not in any candidate. It is in the system. It is in those who call the shots in the Government and in their cynical view of the law. It is ironic that, just as the old name of 'Legal Department', or the more English flavour 'Attorney General's Chambers' is changed to 'Department of Justice'. Justice has become increasingly irrelevant to the task of that department.
While romantics cannot help continuing to look for the ideal candidate, realists must adjust their expectations.
