}
I
5.25.
5.26.
PROSECUTION POLICY AND ANCILLARY MATTERS
-
The whole issue of executive discretion, prosecution policy and the possibility of the politicisation of individual discretion (directly or indirectly see paragraph 5.32) is, I believe, a very real and legitimate concern in Hong Kong, today as well as 1997 and beyond. the elaboration of its policies annexed to the Joint Declaration, the government of the PRC declared that:
"A prosecuting authority of the HKSAR shall,co
control criminal prosecutions free from any interference."
In Article 43 of the Basic Law, the English language text provides that: -
"The Department of Justice of the HKSAR shall control criminal
prosecutions, free from any interference.
#1
In
Whether the difference between "prosecuting authority" and "Department of Justice" is intended to be significant in any way I do not know. But it could be; and that could present a problem. However, I am working only with the English text of the Basic Law, and not with the Chinese. The difference, however, between a prosecuting authority and a government department is manifest. The former implies a separate agency within government; the latter could imply a body integrated within the scheme of governmental lines of authority. Under the system in Hong Kong, the Attorney General is meant to exercise his discretion to prosecute independently of the government. At present, moreover, "in the performance of his functions, he is accountable to the public through the Legislative Council sitting in open session". continue?
Will that
"The responsibility for decisions in these matters is
quasi-judicial in nature; it necessarily involves the exercise of discretion; and if the rule of law is to be maintained, it must be as well protected from extraneous influence, political or otherwise, as the administration of justice in courts of law. person to whom control of public prosecutions is entrusted should, therefore, be endowed therein with a status of independence,
511 recognised as a matter of constitutional law."
Any
I am far from sure that this test would be met by the above-quoted provision in the Basic Law alone. (See below) On a visit to the Legal Department early in my stay, I asked the then acting-DPP whether guidelines controlling the discretion to prosecute might be drawn up, similar perhaps to those in force in the State of Victoria. I have not yet seen these guidelines and hope in due course to do so, and draft something in this regard on my return home to the U.K.