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Special Focus on Hong Kong

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Special Focus on Hong Kong Th SUMMER 2009 Inside This Issue: Special Focus on Hong Kong Since July 1, 1997, Hong Kong has been governed by the Basic Law, which came into effect Hong Kong‟s new upon its reunification with the People‟s Republic of China. The Basic Law provides for imple- Chief Justice 2 mentation of the “one country, two systems” principle that allows Hong Kong a high degree of autonomy as a Special Administrative Region of China. Under this new constitutional order, Hong Kong‟s way of life and common law system are preserved. The Common- wealth Law The Basic Law contains important safeguards to guarantee the independence of the Judiciary. For example, Hong Kong Judges enjoy security of tenure, are appointed by the Chief Executive Conference 3 on recommendation of an independent commission, and may only be removed by the Chief Ex- ecutive for inability to discharge their duties or for misbehavior, on the Message from recommendation of a tribunal consisting of judges. the Editor 4 Under the Basic Law, both Chinese and English are official languages in Hong Kong. In considering what language to use in court proceedings Bangladesh the Hong Kong courts adopt a pragmatic approach. The paramount con- sideration is the just and expeditious disposal of the matter before the Strives to Ensure court. All court hearings are open to the public and the press, except in Access to Justice exceptional circumstances. for the Poor 5 On July 1, 1997, the Court of Final Appeal was established in Hong Kong to replace the Privy Council in London as Hong Kong‟s final appellate Court of Final Appeal Judicial Educa- court. That Court is at the apex of Hong Kong‟s court system, followed by the High Court (comprising the Court of Appeal and the Court of First Instance), the District tion in Pakistan 6 Court (including the Family Court) and the Magistrates‟ Courts. There are also four Tribunals (Lands, Labour, Small Claims and Obscene Articles) and a specialized Coroner‟s Court within Why Mediation the Judiciary. Works 10 The Chief Justice presides in the Court of Final Appeal and is the head of the Judiciary, charged with its administration. The Chief Judge of the High Court is the Court Leader for the High Court. News and Notes Both the Chief Justice and Chief Judge of the High Court must be Chinese citizens who are per- manent residents of Hong Kong with no right of abode in any foreign country. from Around the Commonwealth 11 The Judicial Studies Board is responsible for providing training for the Judges. Its activities in- clude judgment writing courses to enhance the ability of judges to write judgments. Judges also attend conferences, seminars and workshops to keep them abreast of developments in different Appointments 14 areas of law and in areas relevant to their judicial work. To provide assistance to Judges in dealing with matters relating to judicial conduct, the Hong Kong Judiciary produced The Guide to Judicial Conduct which draws on the experience of a number of other jurisdictions which have adopted similar guides. The Guide emphasizes that Judges should exercise a high degree of alertness and caution, using common sense, while not isolating themselves from the community they serve. Any legal system should ensure adequate access to justice for all. In Hong Kong, legal aid is provided for low income groups. However, as with many jurisdictions throughout the world, the courts in Hong Kong are experiencing an increase in the number of unrepresented litigants, hav- ing regard to the relatively high level of legal fees. Such a phenomenon poses a challenge to the Hong Kong courts. The Civil Justice Reform implemented since 2 April 2009 will have the effect of streamlining proceedings, and of encouraging the use of mediation to settle disputes without resorting to potentially costly litigation. P A G E 2 Profile on Hong Kong‟s new Chief Justice: The Honour- able Andrew Li Chief Justice Andrew K.N. Li was born in Hong Kong on 12th December 1948. He received his education in Hong Kong at St. Paul's Co- Educational Primary School and St. Paul's Co- Educational College until the completion of Form 3. He finished his secondary education in England and attended Cambridge University. He holds the degrees of Master of Arts and Master of Laws from that University. He was called to the English Bar in 1970 and the Hong Kong Bar in 1973. Chief Justice Li was appointed as the Chief Jus- tice of the Court of Final Appeal, Hong Kong Special Administrative Region on 1 July 1997. Chief Justice Li in Court Room, Hong Kong Before his appointment, Chief Justice Li prac- ticed at the Hong Kong Bar. In 1988 he was University Law School Charitable Trust and a Guest appointed Queen's Counsel. Professor of the Tsinghua University. Chief Justice Li has a long record of public ser- Chief Justice Li's awards include Honorary Degrees vice. He was a member of the Executive Coun- awarded by the HK University of Science & Tech- cil and Steward of the Hong Kong Jockey Club. nology (1993); the Baptist University (1994); the He had served as Chairman of the University Open University of Hong Kong (1997); the Univer- and Polytechnic Grants Committee and the sity of Hong Kong (2001); the Griffith University Land Development Corporation. He had served (2001), the University of New South Wales (2002), as Vice Chairman of the Council of the HK Uni- the University of Technology, Sydney (2005), the versity of Science and Technology, Deputy Chinese University of Hong Kong (2006) and the Chairman of the Board of Review of Inland Shue Yan University (2009). He was made an Revenue and as member of the Law Reform Honorary Bencher of the Middle Temple in 1997 Commission, the Securities Commission, the and an Honorary Fellow of Fitzwilliam College Standing Committee on Company Law Reform, Cambridge in 1999. He was awarded the Grand the Banking Advisory Committee and Judicial Bauhinia Medal by the Hong Kong Government in Service Commission. He is Vice Chairman of 2008. the Council of St. Paul's Co-Educational Col- lege. He is a trustee of the Friends of Tsinghua Chief Justice Li is married with 2 daughters. THE CJEI REPORT SUMMER 2009 P A G E 3 The Commonwealth Law Conference Hong Kong, April 2009 The Patron Chief Justices‟ Meeting took place at the Commonwealth Law Conference in Hong Kong, on April 5, 2009. Discussions included looking at the work of CJEI over the past two years and plans for the future, the reality and perception of judicial integrity throughout the Commonwealth, judicial workloads, and funding for the judiciary. It ended with a lunch hosted by the Honourable Chief Justice Andrew Li at the Hong Kong Convention and Exhibition Centre. In attendance and pictured below were (first row left to right): The Honourable Judge Sandra E. Oxner, Chairperson, CJEI; The Right Honourable Sir Dennis Byron, President, CJEI; The Honourable Chief Justice Andrew Li, Hong Kong; The Right Honourable Beverley McLachlin, Canada; The Honourable Chief Justice M.L. Lehohla, Lesotho; (second row left to right) The Right Honourable Chief Judge Rich- ard Malanjum, Malaysia; The Honourable Chief Justice Benjamin J. Odoki, Uganda; The Honourable Chief Justice Chan Sek Keong, Singapore; The Honourable Chief Justice Ivor Archie, Trinidad and To- bago; The Honourable Sir David Simmons, Barbados; The Honourable Chief Justice Georgina T. Wood, Ghana; The Right Honourable Lord Judge, England and Wales and The Honourable Chief Jus- tice Christopher J. Gardner, QC, Falkland Islands. P A G E 4 Message from the Editor A recent visit to Halifax and then to Pakistan (which has quite a few Fellows of the CJEI) gave me an insight into what judicial independence is all about and what the judiciary has to watch out for. In early November 2007, the government of Pakistan passed the Provisional Constitution Order (PCO). This required all persons who were, immediately before the commencement of the Order, in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, to take a fresh oath of of- fice under the Oath of Office (Judges) Order, 2007 (the Order). Immediately thereafter, a seven member Bench of the Supreme Court assembled and restrained the government from abusing its powers to subvert the independ- ence of the judiciary. The Supreme Court injuncted the judges from taking Madan Lokur, Judge, oath under the PCO. A very large number of our colleagues abided by the High Court of Delhi, India direction of the Supreme Court and declined to take the oath and so by op- eration of “law”, they “ceased” to hold office. To make matters worse, they were placed under house arrest and had virtually little or no contact with the outside world for quite some time. Justice Mian Shakirullah Jan (CJEI Fellow 2009) of the Supreme Court of Pakistan gave the partici- pants of the 16th Intensive Study Programme in June a first-hand account of the tumultuous period. He informed us of the pressures put on the judges from Day 1 to toe the government line and left us wondering how the judges were able to resist. In August, I visited my friend Justice Asif Saeed Khan Khosa (CJEI Fellow 2007) of the Lahore High Court. By then, things had more than substantially changed for the better as far as the judiciary was concerned. He reconfirmed the trials and tribula- tions faced by the judges and explained how the Black Coat revolution started by the lawyers in Paki- stan resulted in a restoration of the rule of law and democracy and a reaffirmation of the independ- ence of the judiciary.
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