Information Paper

An Overall Co-ordination Mechanism for Overseeing the Implementation of a Bilingual Legal System in Hong Kong

INTRODUCTION

This paper informs Members of the Administration's plan to establish a committee to oversee and facilitate the implementation of the policy of bilingualism in our legal system.

BACKGROUND

2. Article 9 of the Basic Law states that -

    "In addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Region."

3. In line with this provision, the Department of Justice has produced authentic Chinese texts for all legislation enacted in English only and all new legislation are now drafted in both official languages, and the Judiciary has already put in place a bilingual court system, in which either or both of the Chinese and English languages can be used in courts.

4. However, some quarters of the legal profession and the former Legislative Council have expressed concern over various aspects of the implementation of bilingualism in our legal system. They have proposed that the Administration should consider setting up a high-level committee to oversee the implementation of a bilingual legal system in Hong Kong. Before the end of the last legislative session, the Chairman of the Panel on Administration of Justice and Legal Services of the previous Legislative Council wrote to the Chief Secretary proposing that a "high-power" committee on bilingual legal system be set up.

THE ADMINISTRATION'S VIEWS

The need for an overall and separate mechanism

5. The Administration have carefully considered the above proposal in conjunction with the Judiciary. Broadly speaking, there are two types of issues concerning the implementation of a bilingual legal system in Hong Kong. These are -

  1. Philosophical/Policy issues, such as

      - the ultimate objective of bilingualism and the question of whether Chinese and English will both be used or whether the former will eventually replace the latter;

      - speed by which bilingualism should proceed;

      - lessons to be learnt from the experience of implementation of bilingualism in law in other countries; and

      - how the training and admission of law students should be tailored to tie in with the implementation of bilingualism.

  2. Practical issues of concern to the legal profession and tertiary institutions associated with the use of Chinese in law and in courts

      - glossary of Chinese translation of terms and phrases commonly used in courts;

      - bilingual law documents;

      - translation of verdicts;

      - how to relate to common law cases;

      - programme for training practising lawyers in the use of Chinese in law and courts;

      - interest of non-bilingual lawyers;

      - guidelines on the choice of language in court proceedings; and

      - problems associated with court interpretations.

6. A Steering Committee on the Use of Chinese in Courts in the Judiciary (which comprises representatives from the Bar Association, the Law Society, the two tertiary institutions which provide legal courses, namely the University of Hong Kong and the City University of Hong Kong, and the Department of Justice, and is chaired by the Chief Judge of the High Court) has been dealing with most of the practical issues involved in the use of Chinese in courts identified in paragraph 5(b) above. However, the Judiciary is of the view that the Steering Committee should not be tasked with looking at the philosophical or policy issues such as those set out in paragraph 5(a) above.

7. Other issues in paragraph 5(b) not relating solely to the use of Chinese in courts might be tackled by the Legal Practitioners Liaison Meeting (which comprises the Chairman of the Bar Association, the Chairman of the Law Society, and the Judiciary Administrator) convened by the Secretary for Justice, but this does not meet frequently. Furthermore, it is concerned with many other legal issues besides those concerning a bilingual legal system.

8. We have also considered whether the Advisory Committee on Legal Education, established under section 74A of the Legal Practitioners Ordinance (Cap. 159), can play an overall co-ordinating role. The Committee, chaired by the Chief Justice (or his representative) and composed of representatives from the legal profession and the two tertiary institutions which provide legal courses, is responsible for advising the Government on legal education and training in Hong Kong. This Committee meets infrequently, and its terms of reference (namely to advise on legal education and training in Hong Kong, and the future demand in Hong Kong for persons with legal education or training and the means by which that demand may be met) prevents it from exploring the wider issues such as those set out in paragraph 5(a) above.

9. There is therefore no dedicated forum for discussing policy or philosophical issues as set out in paragraph 5(a) to assume an overall monitoring role. Given the above considerations, the Administration concludes that there is a need to set up a non-statutory committee which focuses on wider policy issues on the implementation of a bilingual legal system and advise the Government (including the Judiciary) accordingly. Practical problems should be left to either the Steering Committee on the Use of Chinese in Courts or the Legal Practitioners Liaison Meeting. Specific issues concerning legal education should also be dealt with by the Advisory Committee on Legal Education. The Executive Council has approved the setting up of this new committee.

10. The new committee will be titled "Committee on Bilingual Legal System" (the Committee) and its terms of reference are set out in Annex A.

Membership

11. The Committee will comprise representatives from the Department of Justice, the Judiciary, the Legal Aid Department, the Education and Manpower Bureau, the Official Languages Agency, the legal profession, and not more than three lay members to be appointed by the Chief Executive. Representative(s) from the academic sector (the Law Faculty of the University of Hong Kong and the City University) will be invited to sit on the Committee when the need arises. The membership is at Annex B.

12. The Committee will be chaired by the Secretary for Justice. The appointment of the Secretary for Justice as the Chairman demonstrates the Government's commitment in building a fully bilingual legal system.

Annex A

Terms of Reference of the

Committee on Bilingual Legal System

Having regard to Articles 8 and 9 of the Basic Law (which provides that subject to certain exceptions the laws previously in force shall be maintained and provides for the use of Chinese and English as official languages), and the Special Administrative Region's position as a major international trading and financial Centre, the Committee is to advise the Government -

  1. on a clear statement of the policy and long-term goal of bilingualism in law;

  2. on how the long-term goal should be attained;

  3. on how the efforts of the Judiciary, various departments, professional bodies and academic institutions can be co-ordinated to enhance the efficiency and effectiveness of bilingualism in law, and to avoid repetition of efforts, if any;

  4. on how the interests of users of legal services can be best served and protected taking into consideration (a), (b) and (c); and

  5. on the resources required for implementing the goal with respect to bilingualism in law.

Annex B

Membership of the

Committee on Bilingual Legal System

Chairman

Secretary for Justice

Membership

one representative from the Bar Association
one representative from the Law Society
one representative from the Judiciary
Director of Legal Aid or his representative
Secretary for Education and Manpower or his representative
Commissioner for Official Languages or her representative
representative(s) from the Department of Justice
not more than three lay members to be appointed by the Chief Executive

Secretary

to be provided by the Department of Justice