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港終院非常任法官 英最高法院院長:國安法令人憂 是否續來港視乎法治狀況

2020/7/17 — 22:48

《港區國安法》通過後,外界關注會否影響香港的司法獨立,亦有指國安法的條文或會與普通法原則有衝突。終審法院非常任法官韋彥德 (The Right Honourable Lord REED) 今日 (17 日) 發表聲明,明言國安法會帶來擔憂,但終審法院的法官們將盡力履行《基本法》第 85 條下,「法院獨立進行審判,不受任何干涉」的責任。身為英國最高法院院長的韋彥德又指,英國最高法院的法官是否會繼續在港,擔任終審法院非常任法官,要視乎在港履行職務時能否實現法治,及司法獨立。

韋彥德於 2011 年獲委任為英國最高法院法官,並於 2020 年獲委任為院長。他在 2017 年獲香港委任為終審法院海外非常任法官,亦是現時非常任法官中,唯一一名仍在英國最高法院就任的法官。

他在聲明中直指,港區國安法將帶來一些擔憂 (give rise to concerns), 又說國安法的影響,要視乎條文如何實施。但他強調,終審法院的法官們,會盡力履行《基本法》第 85 條的職責,堅持維護司法獨立,不受任何干涉。他又引述即將退休的終審法院首席法官馬道立,指司法獨立及法治是香港的基石,亦受《基本法》保障,而司法機構的憲制責任,便是維持並保護它們。

廣告

本身是英國最高法院院長的韋彥德,指英國最高法院會持續審視香港的狀況,並與英國政府討論。至於英國的法官是否會繼續來港擔任終審法院海外非常任法官,則要視乎香港司法獨立及法治的狀況。

聲明全文如下:

廣告

Statement from the President of the UK Supreme Court, The Right Hon Lord Reed of Allermuir

17 July 2020

Until the return of Hong Kong by the UK to China in 1997, Hong Kong's final appeal court was the Judicial Committee of the Privy Council in London, whose judges were the members of the Appellate Committee of the House of Lords. Following the Handover, the final appeal court became the Hong Kong Court of Final Appeal. Article 82 of the Hong Kong Basic Law provides that 'the power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal'.

At the time of the Handover, the then Lord Chancellor (the Rt Hon Lord Irvine of Lairg) and the Chief Justice of Hong Kong (the Hon Andrew Li) agreed that the House of Lords would provide two serving Law Lords to sit on the newly created Hong Kong Court of Final Appeal, as part of the UK's continuing commitment to safeguarding the rule of law in Hong Kong. Details of this agreement were announced by Lord Irvine in Hong Kong on 8 September 1997.

Ever since, two serving judges of the House of Lords and, since its establishment in 2009, the UK Supreme Court, have been provided in accordance with that agreement. They have made an important contribution to the work of the Court of Final Appeal, not only in civil and commercial cases, but also in cases concerned with rights of protest and free speech. Serving judges do not receive any additional remuneration for their work in Hong Kong, but a fee is paid to the Supreme Court. The Court of Final Appeal also includes retired judges from the UK and from other common law jurisdictions, including Australia and Canada.

Currently, I am the only serving judge provided under the agreement, as the other serving judge, Lady Hale, retired from the Supreme Court earlier this year and has not yet been replaced on the Hong Kong court. No serving UK judge has been scheduled to sit in Hong Kong this year.

The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen. Undoubtedly, the judges of the Court of Final Appeal will do their utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that 'the Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.' As the Chief Justice of Hong Kong, the Hon Geoffrey Ma, recently said: 'The independence of the Judiciary and the rule of law are cornerstones of the Hong Kong community, and they are guaranteed under the Basic Law. It remains the mission and the constitutional duty of the Hong Kong Judiciary to maintain and protect them.'

The Supreme Court supports the judges of Hong Kong in their commitment to safeguard judicial independence and the rule of law. It will continue to assess the position in Hong Kong as it develops, in discussion with the UK Government. Whether judges of the Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law.

 

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