This Dec 2, 2021 photo shows the Court of Final Appeal Building in Hong Kong. (PHOTO / HKSAR GOVERNMENT)
Law Society of Hong Kong President CM Chan is on the Straight Talk show this week.
Chan says Hong Kong's plan to become an international mediation center cannot only establish our city as international legal hub, but also boost our global center status for resolving disputes, such as conflicts between countries.
The Law Society is also organizing events to teach young people about the rule of law, not just the importance of obeying the law but also of understanding the concept behind the system and mechanism of the independent judiciary.
Check out the full transcript of TVB's Straight Talk host Dr Eugene Chan’s interview with CM Chan.
E Chan: Good evening! You're watching Straight Talk with Eugene Chan. Our guest this evening is the resident of the Law Society of Hong Kong, CM Chan. Chan has been a practicing solicitor for 25 years and served on several Hong Kong statutory bodies. He is also a LAWASIA executive committee member. Our question for him tonight is: are Hong Kong people's legal rights being protected? Welcome, CM!
CM Chan: Well, thank you, Eugene.
E Chan: CM, you have been the president of the Law Society since 2021. And your predecessor, Melissa Pang was on our show at the end of her term in 2021. And she said, it is very important that the Law Society should be apolitical. How would you respond to that statement?
CM Chan: Well, first of all, I've absolutely agreed with that statement. The Law Society of Hong Kong is a professional body, representing our members. We have roughly 13,000 solicitors in Hong Kong nowadays, and also over 900 law firms. So, basically, we are a professional body independent from the government. We look after their interests, represent their views. We also look at social issues, but purely from a legal angle. We don't actually get involved in politics. I think that’s very important for us going forward.
E Chan: You know, in the last few years, Hong Kong did go through some period of turmoil, especially with politics. Also, with the COVID. It hasn't been easy. So, during your time as the president, do you still have to deal with issues in politics, because a lot of people are saying all these issues have been subsided under the surface at the moment, do you feel any sort of turbulence underneath at all?
CM Chan: I think Hong Kong has, as you said, underwent a very, very turmoil period since 2019. And the members of my society are also very split. Their views are very split, very diverse and polarized in many ways. And as the president of the Society, I need to be neutral, I need to be independent as well. I listen to different views, and try to get a compromise. Sometimes you may not be able to get the two sides to agree on a simple issue. But still, as the Law Society, we still have to come out and say it loudly if we believe that is true, especially in the aspect of the rule of law, which is the major pillar, stone of our society, which the Law Society has an obligation to uphold the concept of the rule of law. So, from that angle, I am not making any compromise.
E Chan: Thank you, President, for standing fast… I mean steadfast on the area. There has been a lot of talk on this, the importance of upholding the rule of law, as well as it to do judicial independence in Hong Kong. So, how does the Law Society, I mean, with your counterparts, the Bar Association helped to safeguard this?
CM Chan: I think many people may not know that solicitors, you know, we are, of course, one branch of the legal professionals. We still have the barristers’ branch of the profession. The Law Society of Hong Kong, looks after all the solicitors, solicitors in Hong Kong under the common law principle, we are all officers of the court. We're actually court officers. So, we have an inherent obligation to protect judicial independence. And that's really the cornerstone of Hong Kong's success. I think everybody agrees with that. And when we talk about judicial independence, what we're talking about is whether a defendant can get a fair trial. I think that's the most important thing. Judges must be able to exercise their judicial power independently without any interference. For example, the government cannot actually ask the judge, you know, you should adjudicate the case one way or the other. That should not be the case. Judges should not be pressurized, they should not be unduly interfered. So, I think that’s really the key thing that we need to uphold. And so far, to be honest, working on the frontline, I don't see any erosion of the judicial independence. Judges are famously, in Hong Kong, acting independently. And actually, we see a lot of cases involving the government. The government is actually on the losing side. You know, for example, the vaccine doctors’ exemption case, you know the government lost a judicial review. And in any other cases … in many other cases, the government actually is always on the losing side. So, I think that's actually one of the evidences to show you that the rule of law in Hong Kong, judicial independence is still very robust.
E Chan: President, I mean, you had a very good stand up for the kind of judicial independence in Hong Kong. But how about, I mean, you're using a lot of legal jargons, rule of law is being used all the time. Can you tell the viewers in a nutshell, what exactly the rule of law is? Because we hear this in other shows, the business people, the government said, we have rule of law, that's the reason why Hong Kong is so good. But what exactly is rule of law?
CM Chan: I think, Eugene, you hit the nail on the head. I think the problem is, there's no universal definition for the term rule of law. People have different ideas, what's it all about. But to us, you know, I think there are some common elements that everybody agrees, we talked about judicial independence, there should be a mechanism to decide cases independently. That's very, very important. But there are other things as well, the law should be just, should be a fair law, reflecting fairness and justice. And in that aspect, do remember Hong Kong is a member of the ICCPR – International Covenant on Human Rights – one of the two international covenants Hong Kong is a member of. And the two covenants are actually guaranteed under the Basic Law. And in fact, under the National Security Law, it expressly stated in the laws that the judges should respect the rights are protected under the two international covenants.
E Chan: President, as we all know, Hong Kong is part of China, is under 'One Country, Two Systems'. One of the differences between our systems are the legal system where we practice common law while the mainland practices continental law. Can you tell the viewers in very brief terms? What are the main differences? And what gives us the advantage of having a common law system in Hong Kong?
CM Chan: Okay. Some people said that, “Oh, common law is the best in the world”, I'm not actually advocating that. Roughly one third of the world countries are practicing common law, two thirds of them are using continental law and other different systems. They work perfectly well, in many countries, for example, continental Europe, they use a civil law system. The interesting thing about… or the uniqueness of the 'One Country, Two Systems' is, China of course, like you said, is a socialist country, it doesn't adopt the common law system. Hong Kong is the only common law jurisdiction within the whole of China. So, this is actually very interesting academically, for a small city like Hong Kong, to be part of China, of course, you know, using a different law legal system. So, this is a very unique constitutional framework for Hong Kong. I haven't seen anything like this, possibly an analogy is the UK where they were still in the EU, a common law country within the bigger civil law environment. So, this is very unique. So, that's why we have, for example, the National People's Congress, the standing committee, of that committee has a very important function to play in our very unique constitutional arrangement after 1997. So, people have to, first of all, accept that this is something unique in the world.
E Chan: Right. You just said that the common law basically accounts for one third of the countries in the world. Maybe is that the reason why when our national security legislation was enacted in 2020, that for example the US has accused in public that our system being corrupted by Beijing's authoritarian security apparatus, and we no longer have the freedom of speech and assembly for example? So, what basis do you think they make that statement on?
CM Chan: I think, first of all, these are all very emotional statements or oversimplification of the situation. And then, of course, I disagree with the statements that you just mentioned. Hong Kong, of course, you know, still has a very robust independent judiciary. Like I mentioned earlier, the important thing is the National Security Law is not unique again in the world, most of the countries, almost every single country in the world has some sort of national security law. I actually made the comparison of the actual provisions of the Hong Kong National Security Law with the national security legislations around the world. They’re actually in line … the practice or the arrangement are not that much different. Hong Kong's version of the national security legislation is not particularly draconian compared to other jurisdictions.
E Chan: President, I know part of your job as a president is to liaise with other law societies in the world so that we maintain an international dialogue like many professional organizations, and I believe you went to the opening of legal year for England and Wales in October last year. So, when you met your counterparts in law field, do you see any concern from them still? Or is it purely a newspaper thing that we read in the news, oh, Hong Kong hasn't got rule of law? Are people actually concerned? Or do they believe it?
CM Chan: I think, exactly, that's the problem, you know, for overseas, for those who are not following Hong Kong news on a daily basis, they tend to oversimplify things. They got the information mainly from social media, or news, many of them have actually not read the actual provisions of the NSL, Hong Kong's version of it. And the cases, they simply look at the judgment, or maybe simply looking at the results, the outcome of the judgment, and then they criticize I think. I actually urge everyone to take a look at the judgments themselves. The judgments in Hong Kong are all public, transparent, they're all on the Judiciary’s website. So, there's a very clear reasoning why the judge made the decision they made. So, once you have the chance to sit down with these overseas lawyers, explained to them the actual situation, they tend to agree more or understand more what's actually happening in Hong Kong.
E Chan: Alright, President. Let's go to the break now, we'll come back to that later. And viewers, stay with us, we will be right back.
E Chan: Welcome back! The president of the Law Society, CM Chan is with us this evening. And we have been talking about whether the legal rights of Hong Kong people are being protected. So, President, in the first part of the show, you've told us or you have actually explained to us what rule of law is, although it hasn't got to a universal definition, but you have outlined the framework. And the judicial independence is what the Law Society and all the lawyers will help to protect, or to ensure, assured. And you also mentioned about national security law, and that you went to the UK and you tried to talk to the people there, you encouraged them to actually read a bit further. So, let's move to Hong Kong. Recently, we had a judgment from the Court of Final Appeal for allowing a foreign barrister to represent one of the defendants. Is that demonstration of our independent judicial system, as you have just said, very often the government is on the losing side?
CM Chan: I think, first of all, Eugene, thank you for the question. Unfortunately, I can't really comment on…
E Chan: Adjective case.
CM Chan: …any ongoing cases. But I think you're absolutely right. Many of the cases the public can see and the international community can also see that, our judges are actually acting very independently, they sometimes are very critical of the prosecution, which is the government side, or even other government departments, or their behavior. So, I think that's actually the sort of check and balance that shows, that works really well in Hong Kong. And of course, like I mentioned in the first session, Hong Kong has a very unique constitutional structure. We have our very internationally renowned Court of Final Appeal. But we also have the National People's Congress Standing Committee, which is the ultimate, the highest organ of China. It does have the power to interpret laws, national laws, and do remember the Basic Law, Hong Kong's Basic Law and the National Security Law. They are also national laws. So, the power to interpret national laws always rested with the National People's Congress. So, the arrangement is we have our own final court of appeal. We do our own cases, but the ultimate interpretation of laws really rested with the central government. So, this, like I said, is a very unique constitutional arrangement, and we do need to respect that after 1997. And Eugene may also add about going back to the bit, the point about the NSL. My job going overseas to explain is actually not to paint a glossy picture of Hong Kong, I'm simply telling the international community objectively what's going on in Hong Kong. Of course, you know, with the new NSL, there's some thing that you can do before… you could do before the law, but with the new law that is now prohibited. So, from that angle, yes, some of the rights are now being curtailed, you can say that, but whether… for lawyers, the important point is whether this piece of legislation is legal, and also whether it's reasonable. And like I said before, almost all countries in the world, they do have some sort of national security legislation. I think that's a very important thing.
E Chan: President, two weeks ago, our secretary of justice, Paul Lam, was here. And he said that, contrary to the popular belief that overseas counsels coming to represent clients in Hong Kong is actually an exception, not the norm. And the government has asked the NPC Standing Committee to interpret the National Security Law, something you should talk about. But you understand from the viewers, we all feel that getting an overseas expert coming to help you should you be in need, is always a right that we have. So, does it happen all the time in the past? Or is it really an exception?
CM Chan: I think it's a tradition. It’s true that was a tradition in the past that we, the defendants sought to have overseas counsels to come to Hong Kong on an ad hoc basis to represent them. But I must say this, this arrangement, again, is not very common around the world. Actually, not many countries have this kind of arrangement. For example, if I want to go to the UK or the US to appear in court, basically I cannot, unless I'm a member of their professional organization, or got admitted by their local bars. So, this arrangement in Hong Kong, again, shows that Hong Kong is a very international city, the arrangement is unique, with the new NSL in place, after all we are talking about national security, whether allowing foreign lawyers to participate in very sensitive national security cases is very controversial. So, that's why we went through a lot of court cases, and possibly even in an NPC interpretation.
E Chan: Yes, so President, if the Court of Final Appeal arrangement, the judgment has been overturned by the standing committee of the NPC, but we don't know it yet. Would it affect other foreign lawyers coming to represent Hong Kong defendants in the future? Do you think?
CM Chan: I think as I said before, that I have full confidence in the Hong Kong judiciary, so, they must have looked at all the reasoning behind the judgments. But after all, like I said, there is still an NPC SC decision out there to define or to clarify the arrangement for cases relating to national security. So, I think this is a normal process that our judiciary after reserve performance function, it’s now up to the central government to look at it. So, I would actually look at it more positively. This is a natural progression of our new constitutional order, rather than simply saying that, oh this is a curtailment of yet another example of our human rights.
E Chan: President, there have also been other criticisms about the cases before trial, especially under the NSL for having a long custody period. Other members of the legal profession actually had said that the justice delayed is justice denied. Do you agree? And any further comments on this?
CM Chan: I think in some cases, because the unique arrangement again under the NSL, that bail may not be granted unless you can prove that the accused will not continue to be in breach of the NSL obligations. So, bail is not… sometimes is not granted. And I do have some concerns with the defendants in custody before trial, and especially for those who are not involved in violent crimes. So, I have done this before, and I urge the government to actually speed up the trial. I think the system for no bail arrangement is not a problem per se, as long as you have a speedy resolution of the cases. So, if that's a resources problem, then I urge the government to put more resources in the Judiciary to speed up the trial and also on the part of DOJ as well, the Department of Justice.
E Chan: So, CM, let's move on to another area and we will talk a lot on the National Security Law. And I can feel that your desire, or your determination to uphold the rule of law for the people of Hong Kong, and we thank you very much on that. Let's move on to another stream from Hong Kong. It's 'One Country, Two System' and Paul Lam, when he was here, he was saying that we will be talking about setting up an office in Hong Kong next year to prepare the establishment of the international mediation center. That's another area of work that a lot of solicitors do. Can you comment on the significance of that? And what will the Law Society's role be in this?
CM Chan: That's an excellent question, Eugene. I think the legal profession is very excited about this idea. The central government has announced that they will have an office in Hong Kong, in preparation of an international mediation center. In terms of disputes, there are number of ways to resolve your disputes. The common way is to go to a court and let the judges decide the dispute who wins, who loses. Another way is, of course, arbitration is a less formal way to resolve the dispute. Mediation is yet another way. So, we sit down with the mediator and try to resolve your differences. I think it's so important for international mediation to work, especially in international politics. We see that you know, these days around the world, they're conflicts between countries. If Hong Kong can become an international mediation hub, that will definitely help boost our international status, reputation, and also the national strategy that Hong Kong should become a center for international law and dispute resolution center. So, that's really, really exciting for us.
E Chan: So, that's exactly what Hong Kong's role should be to be facing internationally on behalf of mainland advisors as well.
CM Chan: Absolutely. Exactly. That's our unique role in the country's development.
E Chan: Right. SJ also said that he will be going overseas and talk to foreign counterparts. Will Law Society be continuing to do what you have done to visit other jurisdictions as well?
CM Chan: Absolutely. Eugene, I will promise you that's how I do my best and go and talk more. And like I said, I'm not simply talking up Hong Kong. I'm simply telling the international community objectively, what Hong Kong is all about. What our independent judiciary's is all about. I went to England, I actually came back from Australia as well, two weeks ago, for international conference. I'll continue to go to overseas. And also, (to) mainland, if the border restrictions and travel restrictions are lifted.
E Chan: President, in the last minute of the show, I'm going to ask you something that we look to the future. I mean, our youth, our young lawyers are where we have to concentrate. So, in the local front, I mean, the chief executive, in his Policy Address, announced the establishment of the steering committee on the rule of law, education, and the rule of law education, train the trainer's program. So, can you give a brief comment? How effective is it going to be and what Hong Kong people can do to support it?
CM Chan: Youth is obviously, our future. The Law Society invest a lot in our young lawyers, we want to train them up so that they can pick up the baton to uphold the rule of law going forward. We also look to the students, secondary school students, we hold regularly, events for teenagers, we have a flagship event called Teen talk. Through games, through discussion, we try to teach them the concept of the rule of law, why you should obey the law, abide by the law, not simply blindly obeying the law, but try to understand the concept behind the system behind the mechanism of the independent judiciary, etc. So, yes, youth is our priority.
E Chan: Alright, President. That's all the time we have. And thank you very much for assuring us that the legal rights of Hong Kong people, which includes our freedom of speech and the right to legal defense, are protected. And with the niche of the bilingual common law system, Hong Kong is well positioned to be an international mediation center. Have a pleasant evening and good night!