2023 legal year opens

January 16, 2023

The ceremonial opening of the legal year 2023 was held at City Hall today, returning to its traditional venue after a two-year absence due to COVID-19 restrictions.


In his opening remarks, Chief Justice Andrew Cheung identified three main functions of the Judiciary.


“First and foremost, the primary role of the Judiciary is to uphold the rule of law and administer justice in strict accordance with the law. This is the most important function of the Judiciary and the courts must do it well. It cannot be achieved without the Judiciary being an independent, impartial and effective one.”


He added that the second role the Judiciary plays in society is the protection of fundamental rights.


“It is the function of the courts to uphold fundamental rights. This is an important facet of the rule of law as practised in Hong Kong.


“Whilst fundamental rights must be, and are given by our courts, a generous interpretation, most fundamental rights are not absolute - they are liable to be proportionately restricted for the sake of others or for the public interest.”


The third role played by the courts relates to their lawmaking function under the common law system. However, the Chief Justice emphasised that the courts’ lawmaking role should not be exaggerated.


“In most of the cases that come before our courts, the court’s task is either to interpret and apply written laws, or to apply binding authorities applicable to the dispute before it. Where circumstances justify, the court may give a written law a modern or ‘updated’ interpretation in order to address changes that have occurred after the law was initially framed.


“This is permissible so long as it is in accordance with the original legislative intent, and does not do unacceptable violence to the language of the law.”


Mr Cheung added that two initiatives are being explored to ensure the Judiciary remains a modern one that moves with the times, involving live broadcasting and e-litigation.


“With the advent of technology and given the limited seating capacities of our courtrooms and public health considerations, live broadcasting of proceedings is a natural way forward to further enhance the transparency of court procedures and public confidence in the judicial process.


“Yet, the due administration of justice must always remain the primary and overriding consideration. Not all proceedings are inherently suitable for live broadcasting.


“I have decided to appoint a working group within the Judiciary, to be chaired by a senior judge, to examine the guiding principles as well as the implementation practicalities of live broadcasting of court proceedings, with a view to introducing live broadcasting of at least some court proceedings or at some court level within sometime this year, if reasonably practicable.”


Noting that the second initiative under consideration relates to the Judiciary’s Information Technology Strategy Plan, Mr Cheung said it is time to make a greater stride in driving the migration to e-litigation.


“Without seeking to downplay the short-term inconvenience and the cultural change that will be required, the legal profession is strongly urged to give serious consideration to switching to the e-litigation platform.”


Also speaking at the event, Secretary for Justice Paul Lam pointed out that although the common law system has been and will be maintained in Hong Kong, it is based on the constitutional order founded on the Constitution of the People’s Republic of China.


On December 30, 2022, the National People’s Congress Standing Committee interpreted Articles 14 and 47 of the National Security Law.


Mr Lam said there are some suggestions that the interpretation has expanded the powers of the Chief Executive and the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, eroding the Judiciary’s independent judicial power and even putting the Chief Executive and the committee above the law.


“Such suggestions are plainly wrong and misconceived. The interpretation is, by definition, a clarification of the original intent and purpose of those provisions; it does not confer any new power on anyone.


“On this occasion, I wish to make a solemn pledge that the Government will do its best to defend the Judiciary so that it may exercise their constitutional powers and discharge its constitutional duties, independently free from any interference.”

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