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【英文全文】8.18 維園集會案 吳靄儀親自陳詞:I stand the law' s good servant, but the people' s first

2021/4/16 — 12:17

編按:前年的 8.18 維園集會案今日(16 日)在西九龍裁判法院求情和判刑。被告之一的吳靄儀早上表示,解除代表律師職務,在庭上親自求情回顧自己從政以及大律師行業生涯。吳靄儀最後借用及稍為修改英國著名法官的名句,指自己是法律的僕人,但人民行先於法律,因為法律必須為人民服務,而非相反。(I stand the law' s good servant, but the people' s first. For the law must serve the people, not the people  the law.)。吳靄儀完成陳詞之後,庭內一片掌聲。

文末另附有陳詞中文版,由記者所翻譯,以英文版本為準。

以下是吳靄儀英文陳詞全文,陳詞重點另見報道

Your honour, I am grateful to your honour for allowing me to make this statement about my background and the personal conviction I have held in what I did.

I was called to the bar in 1988, but my early training was not in law. I had indulgent parents who allowed me to spend 10 years in the university in Hong Kong and then in Boston to study philosophy. There I learned about rigorous intellectual honesty in the pursuit of truth and alleviation of the suffering of mankind. 

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It was a sharp change for me to switch to law in 1981 when I went to Cambridge to read for a law degree. Those were the crucial years of Sino-British negotiations over the future of Hong Kong. My generation were embroiled in finding a way to preserve Hong Kong's freedoms and original way of life after the change of sovereignty. This was so important to all of us that, after I was called to the bar, I did not immediately start to practise, but took up an editorial post in the Ming Pao Daily News, because I accepted that it was critical to Hong Kong's future to have a strong free press, and at that stage I had some standing as a political commentator. 

I resumed my legal career in 1990, but in 1995 I was persuaded to stand for election in the legal functional constituency. Your honour, the legal profession, steeped in the common law tradition of civil liberty, did not believe in unequal elections, but they considered that so long as there was such a seat, they would not allow anyone to compromise the rule of law in their name. So I was elected their representative to hold that office in trust for the people of Hong Kong, to use it to uphold the system under which their rights and freedoms are protected by law. I was charged with a dual mission: to do my utmost to prevent legislation that would harm the rule of law, and to safeguard the institutions that underpin the rule of law. At the top of the list was judicial independence, and the administration of justice. 

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Those were the tasks to which I had voluntarily pledged to carry out. 

It meant, first of all, working conscientiously in LegCo's committees. 

I served in LegCo for 18 years (including the year from July 1997 to August 1998 when I was without a seat), and for 17 of those years I sat as Chairman of the Panel of Administration of Justice and Legal Services which had oversight of policies concerning the Judiciary, judicial provisions and establishment, including the allocation of land and costs for court buildings, legal policies, legal aid, the organisation of the legal profession, legal services, and legal education. Numerous issues were brought up, discussed and resolved.

Some of the work required search for novel dispute resolution. At the height of the heated dispute within the profession over higher rights of audience for solicitors, I put the matter before the Chief Justice and respectfully asked him to intervene so that the matter may be resolved, and seen by all to be resolved, on the public interest and not by unseemly turf fight. It was vital for the rule of law that the public continued to have confidence in the legal profession. 

The expansion of legal aid's supplementary scheme, assistance for unrepresented litigants, more user-friendly and helpful free community legal advice were among other examples for which extra effort had to be made to find solutions. Often there were setbacks. In 2002, when Audrey Eu SC was also in LegCo, we worked in partnership with NGOs on a proposal for a community legal services centre, to give people timely and useful legal advice. Although it was rejected by the government at the time, in due course the idea bore fruit elsewhere. 

I had found that, frequently, tact, diligence and patience were what was needed. But at other times, when a fundamental value was violated, strong statements and response were required. In June 1999, in the wake of the Court of Final Appeal's landmark decision on the right of abode in Ng Ka Ling, the NPCSC issued its first interpretation of the Basic Law to overturn the court's decision. This shook the world's faith in the power of final adjudication of the court. In protest, on 30 June, I and over 600 members of the legal profession went on a silent march, and stood in quiet respect and in solidarity in front of the CFA building then on Battery Path, to mark our unswerving support for the court in that critical hour, so that the community may not be demoralized. 

Your honour, the task in the defence of the rule of law also meant commitment to the process of law-making. I devoted a great deal of my time to vetting bills. It is recorded that I had worked in 155 bills committees. It is vital to the rule of law that the laws passed by the legislature are sound, rights-based, and measure up to the highest standards. For, judges are bound to apply the law as it is, not as what they would wish it to be. Lawyers are in a better position than most to know how a piece of legislation would work - or would not work - when it comes to be tested in the courts. In this I worked closely with the profession to whom I will always be grateful. We did our best to see to it that rights were not inadvertently or unnecessarily compromised. The law should give protection to rights, not take them away, especially in Hong Kong, where structural democracy is still absent. The people relied on the law to protect them, and the courts are the ultimate arbiter of the law. We are mindful that when the court applies a law which takes away fundamental rights, the confidence in the courts and judicial independence is shaken, even though the fault lies in the law, not with the judge who applies it, and that would strike at the foundation of our rule of law. 

Your honour, the importance of that duty was driven home to me by the words of a distinguished judge - Associate Justice Anthony Kennedy of the United States Supreme Court as he then was - when he came to Hong Kong at the invitation of the then Chief Justice Andrew Li to give a speech to the Judiciary and the legal profession on 8 February, 1999. He was deeply moved by the challenges lying ahead of us, and the important role of an independent Judiciary. He submitted: "One requisite for judicial independence is that judges have the jurisdiction, the right, and the official capacity to decide all matters, susceptible to judicial resolution, that are necessary to ensure liberty and human freedom If a judiciary does not have jurisdiction to this extent, then the members of the bar and the members of the larger society must continue to press to expand the jurisdiction. This is vital, because if the bar and the society seem indifferent to a too-narrow judicial charter, there is a risk that the judiciary will in fact or perception aid and abet a larger scheme to deprive persons of their liberty." 

Those were strong words, your honour, but I recognized their authority, and I had ever taken them as marking the ultimate loyalty a barrister owes to judicial independence. Your honour knows that there is no disrespect, to say that the defence of judicial independence is not for the benefit of judges themselves, but so that they can be in a position fearlessly to uphold the rule of law.

The defence of the rule of law is a two-way street. I believed that the representative of the legal profession in LegCo has a duty also to listen, to consult and explain the law to the community: to alert people to their rights and obligations, to clarify what is obscure, to reduce bewilderment, to invite them to voice their concerns and point out errors, to address those concerns with sincerity, and represent them forcefully to the government; and where their needs cannot be addressed through the law, to work with them towards other solutions. 

One of the ways for me to keep in touch with the public was by writing articles to the local press, in plain language accessible to the general reader. For everyone ought to understand the law under which he lives. Throughout those years, and even up to now, I have never abandoned that exercise. Less frequently, I publish academic articles and contributions to academic forums, particularly on matters in need of law reform. 

Your honour, working with the government in LegCo had impressed upon me, that the rule of law is not just about the law, but equally about governance. For laws are made for the "peace, order and good governance of Hong Kong". Laws that protect rights tend to win the people's trust in their government, and trust facilitates good governance. So elected representatives have the duty to speak up to the government of the day: to advise and counsel, to admonish and to warn, constantly: do our laws take rights seriously? The law is not perfect and lawyers know more than anyone else how imperfect the law is. So why should people respect and obey the law? There are, of course, many answers, but the answer I gave myself is this: we can ask people to obey the law if it is the best approximation to justice. Which implies that we are duty bound to listen to criticisms of the law, and make sincere efforts to make the law better, and correct mistakes as much as possible. Justice is the soul of the law without which the rule of law descends to the level of rule by force, even if it is force by majority. 

In the course of this trial, your honour's attention was drawn to a debate on the POO in LegCo on 21 December 2000. In that debate, I pointed out the defects existing in its provisions. They were defects which had long troubled the legal profession, I warned the government that we must seriously consider reform if we were to avoid the law being disobeyed in desperation. Someone in a panel discussion had raised the issue of civil disobedience and the Secretary for Security had called it a threat. But it need not be taken as a threat, but should act as warning or reminder, I urged the government not to shut out rational discussion for reform, because by its recalcitrance, the government was in danger of creating the very conditions which made civil disobedience inevitable and justifiable: something which none of us wished to see. 

Those years in LegCo had repercussions for me for life because, your honour, defending the rule of law means we ourselves must take rights seriously, and that is a lifelong endeavour. 

There is no right so precious to the people of Hong Kong as the freedom of expression and the freedom of peaceful assembly. Not only is the freedom to speak the truth the core of human dignity, it is also the last safety valve in a democratic society, as remarked by our illustrious judges repeatedly. Respecting those rights is also part and parcel of defending the rule of law.

I had learned that the rule of law not only has to be defended in court, or in LegCo, but also in the streets and in the community. Your honour, I had spoken countless times in LegCo. But I also realize that it is not good enough for me to make speeches in beautiful words and measured dignity in the precincts of the Legislative Council, shielded by the privilege of absolute freedom of speech and debate, and immunity from legal action. When the people, in the last resort, had to give collective expression to their anguish and urge the government to respond, protected only by their expectation that the government will respect their rights, I must be prepared to stand with them, stand by them and stand up for them. Otherwise, all my pledges and promises would be just empty words. 

Your honour, the Hong Kong people is a peace-loving and well-disciplined people. Their resolute self-restraint even in highly emotional situations has been proved time and again. In the critical hours of the handover between 30 June and 1 July 1997, the great event passed without a hitch. In the march of half a million on 1 July 2003, not a single pane of glass was broken, Even in 2019, when over 1 million marched on 9 June, and over 2 million marched on 16 June. The peace and good order of the massive crowds astonished and won the admiration of the world. 

And in the incident of the present trial, this was demonstrated again. By the estimation of the organizers, over 1.7 million participated in the day's event. But whatever the exact figure, the huge and dense crowds in and around the venue, the resolute patience with which the crowds waited in the pouring rain, were captured in undisputed footages preserved for all posterity. The number and the perseverance spoke volumes for the intensity of the feelings in the community, and yet the self-restraint was for all to see. It is not disputed even by the prosecution that the event was entirely peaceful and orderly, without any untoward event. The crowd had kept faith with the organizers who enjoined them to be "peaceful, rational and non-violent". At such times we cannot be seen to abandon the people but must stand side by side with them, in the hope that peace may prevail. 

The positive effect of the peacefulness of that demonstration was acknowledged by the CE, Mrs Carrie Lam 2 days later, remarking that it would facilitate dialogue between government and the public. In the event, the dialogue on that occasion did not continue for long, but it was a step in the right direction. I believe we should nurture hope, and continue, as Justice Kennedy urged upon the legal profession gathered together in that distinguished company: You must speak reason to your litigants. You must speak justice to society. You must speak truth to power. 

Your honour, I came late to the law, I have grown old in the service of the rule of law, I understand Sir Thomas More is the patron saint of the legal profession, He was tried for treason because he would not bend the law to the King's will. His famous last words were well authenticated. I beg to slightly adapt and adopt them: I stand the law's good servant but the people's first. For the law must serve the people, not the people the law. 

Your honour, please permit me to thank my counsel. Their tireless dedication and excellence have made me proud to be a member of the bar. 

This is my statement. Thank you, your honour.

Dated the 16th Day of April, 2021

(以下為吳靄儀陳詞中文版 ,由記者翻譯,以英文版本為準)

我於1988年成為大律師,但她並非一開始便接受法律訓練。我有一對寬容的父母,容許我花十年時間在香港和美國波士頓修讀哲學。我學會從追求真理和減輕人類苦難當中,要忠於事實。

我轉向法律的重大轉變,在於1981年到劍橋修讀法律。那些年正是中英就香港未來談判的重要時期,我這一代人捲入了尋找如何在移交政權後,保留香港自由和原來生活的方法。由於這是非常重要的,因此我成為大律師後,並無即時執業,而是加入「明報」參與編採工作,因為我認為擁有新聞自由,對香港未來是至關重要的,其時我身為政治評論員亦有些地位。

1990年,我重回法律界,及在 1995 年參選立法會法律界功能界別選舉。法律工作者認為,普通法的傳統是尊重公民自由,雖然他們不相信不平等的選舉,但認為只要能取得席位,就不會允許任何人以法律專業之名違背法治。因此,我代表法律界當選議員,藉以用維護市民的權利和自由。我承擔著雙重使命:竭盡所能去阻止立法損害法治,以及維護制度以鞏固法治,而排在首位的必然是司法獨立和司法公正。上述這些工作都是我自願去做。

這代表了我首先要一絲不苟地投入立法會的工作。我為立法會總共服務了 18 年(包括沒有當選的 1997 年 7 月至 1998 年 8 月),當中的 17 年擔任司法及法律事務委員會主席一職,負責檢視政策對司法機構、司法條款及制定等,包括土地的分配、法院大樓的開支、法援、法律服務及教育等。提出、討論及解決了眾多議題。

有些工作是關於另類排解糾紛的方法,法律界曾熱烈討論應否讓事務律師享有更多權力,於是我便將此事告知首席法官,並邀請他介入,以便在公眾利益上解決問題,而不是通過不合情理的權力鬥爭,且讓所有人都看見問題被解決,令公眾繼續對法律界充滿信心,同時對法治至關重要。

除外,我的工作亦包括擴充法律援助輔助計劃,從為無律師代表的訴訟人提供援助,更加人性化協助,再到免費社區法律諮詢等等,均需要付出額外努力,來尋找解決方案,且常伴隨著挫折。 2002 年,我與資深大律師余若薇在立法會上,提出與非牟利組織合作,共同建立社區法律服務中心的建議,以便為人們提供及時且有用的法律諮詢。儘管當時政府沒有接納這個議案,但在適當的時候,這個想法在其他地方結出了碩果。

我發現,在這些時候通常需要圓滑、勤奮和耐心的特質。但是在其他時候,當一個核心價值被侵犯時,就需要強而有力的表態和回應。在 1999 年 6 月,終審法院就吳嘉玲一案,作出具有里程碑意義的裁決後,全國人大常委會隨即對《基本法》釋法,以推翻終院的裁決,其做法動搖了全球對終院具最終判決權的信念。為了抗議,在同月 30 日,我和 600 多位法律工作者發起了靜默遊行,在終院大樓前及中環炮台里前聲援,以表達我們對法院的堅定支持。在這個關鍵時刻,相信這樣做就會使社會不再灰心喪氣。

捍衛法治的任務同時意味著對立法過程的承諾。我花了很多時間來審議財政議案,並曾在 155 個法案委員會工作過。就法治而言,確保立法會通過的法律健全、建基於權利及達到最高標準,是十分重要的,因為法官必須原則判案,而不是隨心所欲。與大多數人相比,律師的處境要好得多,他們知道法例在法庭被審議時,會如何起到作用或不起作用。

在這方面,我經常心存感激,因為我可與法律工作者緊密合作,並且竭盡所能,確保不會無意或不必要地損害市民的權利。法律應該保護權利,而不是剝奪權利,尤其是在香港,這個仍然缺乏結構性民主的地方。市民依靠法律保護他們,而法院是法律的最終仲裁者。

我們需謹記,當法院執行剝奪基本權利的法律時,即使是法律本質的過錯,而不是執行該法律的法官,亦對法院和司法獨立的信心有所動搖,同時對法治的基礎造成沉重打擊。

我會選擇這樣做,主要是受美國最高法院大法官 Anthony Kennedy 所啟發,他在 1999 年 2 月 8 日,受首席法官李國能邀請來港,在眾多法律界人士面前演講。他對於我們面臨的挑戰以及獨立的司法機構的重要作用深受感動,並稱:「司法獨立的必要條件是,法官有管轄權、權利和公職,從而解決所有有關法律的事項,這些條件都是保障自由所必備的。如果司法機構沒有司法管轄權,就是由大律師公會的成員和社會上的群眾繼續施加壓力,以擴大管轄範圍。這是至關重要的,因為如果大律師公會和社會對過於狹窄的司法憲章漠不關心,便會存在著風險,令人認為司法機構實際上可能正在執行一個剝奪人身自由的計劃。」

我十分認同上述說話,我曾經將之視為一個大律師對司法獨立的無上忠誠。法官你必定能了解到當中沒有任何不尊重,捍衛司法獨立並不是為了法官本身的利益,而是使他們能夠無所畏懼地維護法治。

捍衛法治的路有兩條。我相信立法會的法律工作者有責任聆聽、諮詢和向社會解釋法律:提醒人們擁有的權利和義務,澄清晦澀之處,降低他們的困惑,並邀請他們表達意見及指出錯誤。立法會亦理應以誠懇的態度解決這些問題,並向政府反映,如遇上無法通過法律解決的事情,立法會應與市民攜手,尋求其他解決方案。

我以通俗易懂的文字在本地傳媒撰寫文章,是我與公眾保持聯繫的其中一種方式,因為每人都應該了解其賴以生存的法律。在過去幾年甚至現在,我很少發表學術文章,但我從未放棄撰寫文章。

我與立法會合作的經歷,讓我留下深刻的印象。法治不僅與法律有關,而且等同管治。制定法律為了香港的和平、秩序和良好管治,保護權利的法律往往能取得人民對其政府的信任,人民的信任亦有助良好管治。因此,議員有責任向政府表達意見,不斷提供諮詢、建議、告誡和警告:我們的法律是否認真對待權利?

我知道法律並不完善,律師比起其他人,更知道法律有多不完善。那麼,為甚麼人們要尊重及遵守法律?當然可以有很多答案,但我給自己的答案是:「如果法律與正義最相似,我們便可要求人們服從法律」。這意味著,我們有責任聽取對法律的批評,盡我們最大的努力完善法律、糾正錯誤。正義是法律的靈魂,沒有法律,社會便會降至武力管治,即使它是多數人的武力。

審訊期間引起我的注意的,是 2000 年 12 月 21 日,立法會就《公安條例》進行的辯論。在那次辯論,我指出條例的缺陷,而那些缺陷長期困擾著法律界。我警告政府,若要避免人們在絕望中違反法律,就必須認真考慮改革。有人在討論中提出「公民抗命」,時任保安局局長稱這是威脅。

我認為不必視「公民抗命」為威脅,而是一種警告或提醒。我勸政府不要阻止關於改革。

理性討論,因政府正處於危險的處境,創造條件使「公民抗命」變得不可避免和合理。我們都不希望看到這一點。

在立法會的日子,影響我的一生。捍衛法治,代表我們必須認真對待權利,這是畢生的努力。對香港人而言,言論自由和和平集會自由,是最寶貴的權利。 正如法官一再指出,說出真相的自由,不僅是人類尊嚴的核心,也是民主社會的最後一道安全閥。故尊重上述權利,也是捍衛法治的重要部分。

我亦了解到不僅須在法院或立法會捍衛法治,還有街頭和社區。我在立法會上發言無數,但我還是意識到在言論自由、不受法律訴訟的特權庇護下,在立法會以優美言語、端莊環境下,發表演說是不足夠的。

當人民在最後關頭,不得不集體表達他們的痛苦,敦促政府作出回應時,僅期望政府能尊重他們的權利。我必須準備與他們站在一起,與他們站在一起,為他們站起來。否則,我所有的承諾將只是一句空話。

香港人是喜愛和平和非常有紀律的。過去多個情緒高漲的情況下,香港人都堅定地保持克制。在1997年6月30日及7月1日,重大的交接順利進行;2003年7月1日五十萬人遊行,無一塊玻璃被打破;即使直到2019年,6.9和6.16的超過一百萬和二百萬遊行,廣大群眾的井然有序,都令人震驚並贏得世界的佩服。

涉案的事件亦證明了上述觀點。根據組織者的估計,超過170萬人參與當日活動,不論實際數字,在舉行場地內和周圍的巨大又密集人群,在傾盤大雨中耐性地等待,都被拍下來,無可爭議,而且流傳後代。當日的參與人數和毅力,顯示了香港人對社會強烈的感情,他們的克制亦被所有人看見。即使控方都無爭議,當日活動是完全和平和有序,並無仼何不幸事件發生。群眾與組織者秉持「和平、理性和非暴力」信念。在這樣的時刻,我們不能拋棄人民,而是必須與他們並肩而行,希望和平會戰勝。

行政長官林鄭月娥於兩日後,亦認證和平示威的正面影響,表示這可以促進政府和公眾的對話。雖然,在那一次中,對話並沒有維持很久,但它已邁向正確方向。我相信,我們應該培養希望,並如大法官 Kennedy 呼籲法律人員一樣你必須要向你的與訟人說出理性,向社會講述公義,向政權說出真相。

我遲了進入法律界,我在服務法治期間變老了。我知道前任大法官 Thomas More 是法律界的聖人。他因叛國罪而受到審判,因為他不願違反法律,以遵守國王的意願。他著名的遺言得到充分驗證,我將其稍為改寫:我是法律的僕人,但人民行先於法律,因為法律必須為人民服務,而非人民為法律服務。

請允許我感謝我的律師,他們的不懈努力和優異,讓我為自己是大律師一員而感到自豪。這是我的陳詞,感謝閣下。

2021 年 4 月 16 日

 

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