Hong Kong Lawyer

April 2017

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PRESIDENT'S MESSAGE 會 長 的 話 2 017 marks the 20th anniversary of the establishment of the Hong Kong Special Administrative Region ("Hong Kong") and the implementation of One Country, Two Systems. The principles of this unique system are enshrined in our Basic Law. Coincidentally, the promulgation of the Basic Law was adopted in the month of April, at the 7th National People's Congress of the People's Republic of China on 4 April 1990. All of these anniversaries make it an opportune time to reflect on the implementation of our mini constitution. Unlike constitutional documents in some jurisdictions, this mini constitution is not a thick volume. It consists of only 160 articles. Yet, this document defines the relationship between Hong Kong and the Central People's Government, the political structure, the economy, the external affairs, education, science, culture, sports, religion, labour and social services of Hong Kong as well as the fundamental rights and freedoms of Hong Kong residents. As a member of the legal profession, I will focus my reflection on the areas concerning the maintenance of the common law system, the independence of the Judiciary and the Rule of Law. Common Law Article 8 of the Basic Law provides that the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained. Article 84 further provides that the courts may refer to precedents of other common law jurisdictions. In addition, Art. 82 of the Basic Law provides that the Court of Final Appeal may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal. We are privileged to have leading judges from well established common law jurisdictions serving as non-permanent judges in the Court of Final Appeal including, for instance, Sir Anthony Mason, former Chief Justice of the High Court of Australia and Lord Neuberger, President of the Supreme Court of the United Kingdom. There has been recent media coverage on a suggestion that the Basic Law be reviewed in order to prohibit foreign judges from hearing constitutionally related cases and to cease recruiting any more foreign judges. Hong Kong prides itself as an international city. For the legal profession, we are proud to have registered foreign lawyers from 32 different overseas jurisdictions practising in Hong Kong offering diversified legal services to our international community. Our pool of legal talent is enriched by the presence of these skilled and competent foreign lawyers bringing in specialised knowledge peculiar to their own jurisdictions of admission, thereby enhancing Hong Kong's competitiveness as a legal service hub in Asia. Similarly, the selection of judges which is conducted by the Judicial Officers Recommendation Commission, an independent commission, is based on individual merits, not on nationality. The wealth of experience in common law brought in by these eminent overseas judges is invaluable. The preservation of our common law system is largely attributable to the contributions made by these highly respected judges who sit on the Court of Final Appeal. Independence of the Judiciary The Basic Law contains very clear provisions for an independent Judiciary in Hong Kong. For example, Art. 2 guarantees Hong Kong's right to enjoy independent judicial power, including that of final adjudication in accordance with the provisions of the Basic Law; Art. 19 provides that Hong Kong shall be vested with independent judicial power, including that of final adjudication; Art. 85 provides that the courts shall exercise judicial power independently, free from any interference; and Art. 88 provides for the appointment of judges by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, which is an independent statutory body composed of local judges, persons from the legal profession and eminent persons from other sectors. Since the implementation of the Basic Law, the issue that has presented the biggest challenge to the perception of judicial independence is perhaps the various debates over the interpretation of the Basic Law by the Standing Committee of the National People's Congress ("NPCSC") under the power 6 www.hk-lawyer.org •  April 2017

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