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This is quite different from Chinese legal concepts which often carry an overtone of class and politics. That concepts of class and politics may find their way in legislation is understandable as even in Western countries the laws are closely linked with the policies of the ruling party. However, law enforcement should never be influenced by the ruling party or the chief executive, or else it will be a violation of the independency of the judiciary, not to be tolerated by the spirit of the rule of law.
On independency of the judiciary, there are also some differences between the Hong Kong and Chinese systems. In Hong Kong, a judge tries cases independently, and no one, not even the Chief Justice or the chief executive may interfere. Under the existing Chinese system, the judge does not have the right of independent trial. It is the court rather than the judge that has such authority. Any verdicts without the approval of the court president and the seal-mark of the court will be invalid. The court, being a state organ, is put under the control of the 'Party', i.e., there is a party organ with the court president as a member. The idea is that the right to judge is conferred upon the court by constitution, not on the individual judges.
Fortunately, Chinese legal concepts are changing to the good. Mr. ZHANG Yongyu has once stated with regard to law enforcement, "The Central Committee of the Party must abide by the laws which are above the Party." I hope to see in my lifetime the realization of 'the law reigning over the Party'.
The concept and spirit of the rule of law are of paramount importance to Hong Kong's political system. The people of Hong Kong accept and believe in the capitalist-style rule of law which, therefore, must be retained and practised here under the concept of 'one country, two systems'. That is why a compromise in legal concepts should go ahead of the keeping of the political systems in tandem.
With differences in basic ideas, discrepancies in interpretation of the Basic Law are likely to occur. We must do all we can to win over the right of interpretation of the Basic Law by our courts. Meanwhile, the Basic Law should also provide for 'the judges to make laws' so as to avoid difficulties in its application.
As for amendments to the Basic Law, what we have to fight for is consultation with Hong Kong beforehand. Being the cardinal law of the land, the Basic Law should be long-lasting and not be amended lightly. However, as time goes and the environment changes, some amendments may have to be considered, and if we take a tolerant and respectful attitude, it may enable the Basic Law to keep pace with the changing environment and evolve, thus sustaining its spirit. But we need not take the point too seriously as amendments may not be necessary in the short period of fifty years. Weighing interpretation of the Basic Law against its revision, we should strive after something of greater interests, this being the sterling character of the businessmen of Hong Kong.
It is provided in the Joint Declaration that the executive authorities shall abide by the law and shall be accountable to the legislature'. The term 'accountable' has recently given rise to much discussion. This term should be clearly defined in the Basic Law in order to avoid controversy in future. Here I would like to define the term as I understand it. The executive authorities are vested with and exercise the administrative powers conferred on them by the central government. In political theory, the legislature is vested with and exercises powers of the same level. The executive authorities and the legislature are separate from each other in discharging their own functions. We cannot say which is more superior or subordinate to the other. For example, when we say 'the teacher should be accountable to the students', do we mean the teacher is subordinate to the students? When we say 'rearing a child without teaching him is the father's fault, and teaching without strictness is the teacher's laziness', accountability is certainly implied. Moreover, the authority to make laws is not supreme or beyond control. There would be a limit to the powers of the law makers, and the laws should be made in accordance with the provisions of the Basic Law. If the legislature acts against the constitution, the judicial authorities can declare such acts invalid. The judges, executive officials, and legislative councillors who break any regulations would be dealt with by the law. The meaning of 'accountable' is mainly to keep a 'balance' and to carry out the requisite responsibilities. On the one hand, the term may be defined to restrain executive officials from abusing their powers or making use of their powers to break the law. On the other hand, it implies that the laws made by the legislature are above government orders. Since it is stipulated that the legislature shall be constituted by elections (direct or indirect), the legislature thus formed is supported by the people. To be 'accountable' to the legislature, therefore, also means any executive measures should conform to the interests of the people of Hong Kong.
Mr. Chairman, I support your motion.
MR. STEPHEN M. L. LAU (in Cantonese): Mr. Chairman,
Outline of work of the year 1985/86
First of all, I would like to speak briefly on the current year's work. It is estimated that a total of 675 entertainment programmes would be held in the year 1985/86 (compared with 669 programmes in 1984/85), with a total attendance of about 857,000. There has been a small increase in the number of programmes organized in conjunction with the District Boards, and the trend towards co-operation with the districts is gathering weight. I hope all of us who sit on the District Boards will help further promote such collaboration. We have a vote of over six million dollars and are prepared to organize entertainment programmes at various venues at Chinese traditional festivals, such as dragon boat races held in conjunction with the Hong Kong Tourist Association, and Mid-Autumn Festival Lantern Carnivals, children's Christmas carnivals, and Spring Lantern Festivals in conjunction with the District Boards. These programmes have been attended by thousands of people, old and young, to whom we have brought immense enjoyment. During the summer holidays, a
Page 98 of 195
165
HONG KONG URBAN COUNCIL
Page 98 of 195
164
HONG KONG URBAN COUNCIL
are
This is quite different from Chinese legal concepts which often carry an overtone of class and politics. That concepts of class and politics may find their way in legislation is understandable as even in Western countries the laws closely linked with the policies of the ruling party. However, law enforcement should never be influenced by the ruling party or the chief executive,
or else it will be a violation of the independency of the judiciary, not to be tolerated by the spirit of the rule of law.
On independency of the judiciary, there are also some differences between the Hong Kong and Chinese systems. In Hong Kong, a judge tries cases independently, and no one, not even the Chief Justice or the chief executive may interfere. Under the existing Chinese system, the judge does not have the right of independent trial. It is the court rather than the judge that has such authority. Any verdicts without the approval of the court president and the seal-mark of the court will be invalid. The court, being a state organ, is put under the control of the 'Party', i.e. there is a party organ with the court president as a member. The idea is that the right to judge is conferred upon the court by constitution. not on the individual judges.
Fortunately, Chinese legal concepts are changing to the good. Mr. ZHANG Yonyu has once stated with regard to law enforcement, "The Central Committee of the Party must abide by the laws which, are above the Party,' I hope to see in my lifetime the realization of ‘the law reigning over the Party'.
The concept and spirit of the rule of law are of paramount importance to Hong Kong's political system. The people of Hong Kong accept and believe in the capitalist-style rule of law which, therefore, must be retained and practised here under the concept of 'one country, two systems'. That is why a compromise in legal concepts should go ahead of the keeping of the political systems in tandem.'
With differences in basic ideas, discrepancies in interpretation of the basic law are likely to occur. We must do all we can to win over the right of interpretation of the basic law by our courts. Meanwhile, the basic law should also provide for 'the judges to make laws' so as to avoid difficulties in its application.
As for amendments to the basic law, what we have to fight for is consultation with Hong Kong beforehand. Being the cardinal law of the land, the basic law should be long-lasting and not be amended lightly. However, as time goes and the environment changes, some amendments may have to be considered, and if we take a tolerant and respectful attitude, it may enable the basic law to keep pace with the changing environment and evolve, thus sustaining its spirit. But we need not take the point too seriously as amendments may not be necessary in the short period of fifty years. Weighing interpretation of the basic law against its revision, we should strive after something of greater interests, this being the sterling character of the businessmen of Hong Kong.
It is provided in the Joint Declaration that the executive authorities shall abide by the law and shall be accountable to the legislature'. The term
HONG KONG URBAN COUNCIL
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'accountable' has recently given rise to much discussion. This term should be clearly defined in the basic law in order to avoid controversy in future. Here I would like to define the term as I understand it. The executive authorities are vested with and exercise the administrative powers conferred on them by the central government. In political theory, the legislature is vested with and exercises powers of the same level. The executive authorities and the legislature are separate from each other in discharging their own functions. We cannot say which is more superior or subordinate to the other. For example, when we say the teacher should be accountable to the students', do we mean the teacher is subordinate to the students. When we say 'rearing a child without teaching him is the father's fault, and teaching without strictness is the teacher's laziness', accountability is certainly implied. Moreover, the authority to make laws is not supreme or beyond control. There would be a limit to the powers of the law makers, and the laws should be made in accordance with the provisions of the basic law. If the legislature acts against the constitution, the judicial authorities can declare such acts invalid. The judges, executive officials and legislative councillors who break any regulations would be dealt with by the law. The meaning of 'accountable' is mainly to keep a 'balance' and to carry out the requisite responsibilities. On the one hand, the term may be defined to restrain executive officials from abusing their powers or making use of their powers to break the law. On the other hand, it implies that the laws made by the legislature is above government orders. Since it is stipulated that the legislature shall be constituted by elections (direct or indirect), the legislature thus formed is supported by the people. To be 'accountable' to the legislature, therefore, also means any executive measures should conform to the interests of the people of Hong Kong.
Mr. Chairman, I support your motion.
MR. STEPHEN M. L. LAU (in Cantonese):-Mr. Chairman,
Outline of work of the year 1985/86
First of all, I would like to speak briefly on the current year's work. It is estimated that a total of 675 entertainment programmes would be held in the year 1985/86 (compared with 669 programmes in 1984/85), with a total attendance of about 857 000. There has been a small increase in the number of programmes organized in conjunction with the District Boards, and the trend towards co-operation with the districts is gathering weight. I hope all of us who sit on the District Boards will help further promote such collaboration. We have a vote of over six million dollars, and are prepared to organize entertainment programmes at various venues at Chinese traditional festivals, such as dragon boat races held in conjunction with the Hong Kong Tourist Association, and Mid-Autumn Festival Lantern Carnivals, children's Christmas carnivals and Spring Lantern Festivals in conjunction with the District Boards. These programmes have been attended by thousands of people, old and young, to whom we have brought immense enjoyment. During the summer holidays, a
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