馬道立

「法治並非政治概念」 馬道立律師會周年大會發言全文

香港終審法院前首席法官馬道立,周二(26 日)在香港律師會周年大會,獲頒授律師會榮譽會員。馬道立接受查詢時,向《立場新聞》提供了當晚演辭,全文如下:

1. President of the Law Society, Council Members, Members of the Law Society, Ladies and Gentlemen, it is a great honour to be conferred with Honorary Membership of the Law Society. I am grateful to you Madam President and the Council as well as of course all Members of the Law Society. 

2. A legal practitioner (this is the statutory term used to refer to both solicitors and barristers in the Legal Practitioners Ordinance), owe duties in the discharge of their responsibilities. However, unlike the governing statutes for other professions or occupations, the LPO contains not only provisions that relate directly to the discharge of the functions of the relevant profession or occupation, there is a particular emphasis on the responsibilities of legal practitioners regarding the public interest. For solicitors, they are said to be officers of the court. This reinforces the common law position that solicitors, like barristers, owe duties to the court. The term "duties owed to the court" does not of course refer to any duties owed to judges in a personal sense. The true meaning of this concept has always been that duties are owed to justice and the administration of justice. In other words, what is here engaged is the wider public or community interest.

3. Primary among the duties owed in the public interest is the support of the rule of law. It is critical to know what this means. The rule of law is not a political concept. It is a concept that has as its foundation the law itself and its spirit. The rule of law contains a number of facets. The independence of the judiciary is one. This too is not a political concept. It means that in the determination of legal disputes (whether civil or criminal), judges will discharge their responsibilities without fear or favour or bias or self interest. This is consistent with, indeed required by, the Basic Law and the Judicial Oath. Another facet of the rule of law is the fundamental requirement of fairness and equality before the law; these are the very qualities that define justice itself.

4. The Law Society, of which I am now a proud member, has throughout its impressive history understood the true meaning of the rule of law. Not only that, the Law Society has actively supported it and has when the occasion has demanded it, unambiguously spoken out. It also seeks to help the community understand the rule of law. The Law Society's "teen talk" initiatives aims to educate young people on the importance of the rule of law. So too with Law Week, another event organized by the Law Society.

5. It is right and in the public interest to speak out in support of the rule of law in Hong Kong. That said, the Law Society has other important functions to discharge: for instance, administrative, regulatory, community and educational responsibilities. All these functions are also very much performed by it in the public interest. I have already touched upon one, the educational responsibilities. I would also like to mention briefly one of the more important community responsibilities of the Law Society. Over the years I have greatly admired the Pro Bono Scheme of the Law Society. Many solicitors, individually and also through the participation of their firms, devote much time to providing free legal advice. Such advice may be regarded as rudimentary to a lawyer but they make a real difference to those who are in need of it. It may not occur even to the majority of the public that so many solicitors tirelessly devote their time to pro bono work. But it is an important aspect of the work that the Law Society does in the public interest and fully deserves our support.

6. Once again, I thank the Law Society for the honour.

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