Judgments - Reg. v. Secretary of State for the Home Department, Ex parte Launder  continued

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The Joint Declaration and the Basic Law

      In 1984, after two years of negotiation, between the United Kingdom and the P.R.C., an international agreement was entered into between these two countries entitled the Sino-British Joint Declaration on the Question of Hong Kong (the Joint Declaration). This is a legally binding bilateral treaty which has been registered with the United Nations both by the United Kingdom and by the P.R.C. The agreement binds the United Kingdom, as the outgoing sovereign state, to transfer sovereignty over Hong Kong to the P.R.C. with effect from 1 July 1997. In the United Kingdom the Hong Kong Act 1985 was passed to make provision for the transfer of sovereignty and other matters consequential on the change of sovereignty and jurisdiction in implement of the Joint Declaration. The P.R.C. for its part undertook, upon the resumption of the exercise of sovereignty, to establish in accordance with article 31 of the Constitution of the P.R.C., a Hong Kong Special Administrative Region which would enjoy a high degree of autonomy, except in foreign and defence affairs which were to be the responsibility of the Central Peoples' Government. Paragraph 3(3) of the Joint Declaration states:

     "The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged."

      Annex I to the Joint Declaration sets out an elaboration by the P.R.C. of its basic policies regarding Hong Kong. Among the many provisions set out in this Annex are those relating to its Constitution, and its legal and judicial systems. In regard to the Constitution Part I of Annex I states, in sentence 42:

     "The National People's Congress of the People's Republic of China shall enact and promulgate a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (hereinafter referred to as the Basic Law) in accordance with the Constitution of the People's Republic of China, stipulating that after the establishment of the Hong Kong Special Administrative Region the socialist system and socialist policies shall not be practised in the Hong Kong Special Administrative Region and that Hong Kong's previous capitalist system and life-style shall remain unchanged for 50 years."

      In regard to the legal system Part II of Annex I states, in sentence 53:

     "After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature."

      In regard to the judicial system Part III of Annex I states, in sentences 59 to 62:

     "Judicial power in the Hong Kong Special Administrative Region shall be vested in the courts of the Hong Kong Special Administrative Region. The courts shall exercise judicial power independently and free from any interference. Members of the judiciary shall be immune form legal action in respect of their judicial functions. The courts shall decide cases in accordance with the laws of the Hong Kong Special Administrative Region and may refer to precedents in other common law jurisdictions."

      Sentence 68 of the same Part contains this provision:

     "The power of final judgment of the Hong Kong Special Administrative Region shall be vested in the court of final appeal in the Hong Kong Special Administrative Region, which may as required invite judges from other common law jurisdictions to sit on the court of final appeal."

      Basic Rights and Freedoms are the subject of further provisions which are set out in Part XIII of Annex I, among which are the following provisions in sentences 150, 152 and 153:

     "The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law.

     "The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law . . .

     "Every person shall have the right to confidential legal advice, access to the courts, representation in the courts by lawyers of his choice, and to obtain judicial remedies. Every person shall have the right to challenge the actions of the executive in the courts."

      It can be seen from these necessarily brief quotations that the Joint Declaration provides specifically for the maintenance of Hong Kong's existing judicial system, except for the changes which are required to vest the power of final adjudication in the court of final appeal in place of that vested at present in the Judicial Committee of the Privy Council. Hong Kong is to keep its own legal system based on the common law. That system will, for the next 50 years, be kept entirely separate from that which applies elsewhere in the P.R.C. The power of final adjudication will rest with the court of final adjudication in Hong Kong, not a supreme court in the P.R.C. The provisions of Part XIII of Annex I contain a striking declaration of the P.R.C.'s commitment to the protection of human rights in the Hong Kong S.A.R., bearing in mind the fact that the P.R.C. is not yet a party to either of the multinational treaties referred to at the end of that article.

      The Joint Declaration was initialled on 26 September 1984, signed at Beijing on 19 December 1984 and ratified by Parliament on 27 May 1985. In accordance with provisions set out in Annex II a Sino-British Joint Liaison Group was set up to conduct consultations on the implementation of the Joint Declaration and to discuss matters relating to the smooth transfer of government in 1997. In June 1985 a Basic Law Drafting Committee was set up by the P.R.C. which consulted with a liaison committee in Hong Kong. On 4 April 1990 the President of the P.R.C. promulgated the Basic Law for the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law). On the same date in a Decision of the National People's Congress on the Basic Law it was declared:

     "The Basic Law of the Hong Kong Special Administrative Region is constitutional as it is enacted in accordance with the Constitution of the People's Republic of China and in the light of the specific conditions of Hong Kong. The systems, policies and laws to be instituted after the establishment of the Hong Kong Special Administrative Region shall be based on the Basic Law of the Hong Kong Special Administrative Region."

      The Basic Law is a lengthy document. It contains 159 articles. It would not be practicable to quote here all the provisions which are relevant to the respondent's case. But in summary it may be said to have implemented in full the treaty obligations owed to the United Kingdom by the P.R.C. under the Joint Declaration. It has also reflected throughout the principle of "one country, two systems" by which it had been declared as a matter of policy that the socialist system and policies would not be practised in the Hong Kong S.A.R. Then there are the provisions in Chapter III relating to the fundamental rights and freedoms of the residents of Hong Kong. Article 28 states that "No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment." These rights and freedoms are extended by article 41 to persons other than Hong Kong residents. Among the provisions in section 4 of Chapter IV relating to the Judiciary there are the following articles:

     "Article 85

     The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.

     Article 86

     The principle of trial by jury previously practised in Hong Kong shall be maintained.

     Article 87

     In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.

     Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs."

      Article 158 provides that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People's Congress, but that the Standing Committee shall authorise the courts of the S.A.R. to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the region. So the power of interpretation of those parts of the Basic Law which relate to matters which have declared to be internal to the S.A.R. is to be devolved to the courts of the S.A.R.

      These two documents are impressive both in their attention to detail and in their recognition of fundamental principles. The whole approach is founded on the rule of law. It is entirely consistent with modern concepts of legality. No criticisms have been made in these proceedings on the respondent's behalf about the content of the documents. The question which he has raised is whether the rule of law will turn out to be an illusion in the real world after the handover. The thrust of his attack is that the provisions are still at the executory stage. They have not yet been brought into effect. Their operation in practice has yet to be tested. The respondent contends, by reference to many recent examples of departures from human rights norms within the P.R.C., that there is a substantial risk that in various respects the Joint Declaration will not be adhered to by the P.R.C. after the handover. In so far as his prospects of receiving a fair trial, and of appropriate punishment if found guilty, are concerned he says that the present system in Hong Kong cannot be relied upon to continue beyond 30 June 1997. Questions have also been raised on his behalf as to whether the P.R.C. might so interpret the Basic Law as to deny him a fair trial in view of the provisions of article 19, which declares that the courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. He fears that, as a foreign national, he will be vulnerable to a decision by the Chief Executive that the prosecution in his case is an act of state, which would not be reviewable by the courts of the S.A.R. He also questions the reasonableness of the Secretary of State's judgment that extradition arrangements, and in particular the specialty protection required by section 6(4) of the Act of 1989, will be in place by 1 July 1997.

The Decisions by the Secretary of State

      The provisions of the Extradition Act 1989 which are relevant to the decisions which are under review in this case are in sections 6 and 12 of that Act. Section 6 imposes general restrictions on the return of a person under the procedures set out in Part III of the Act. Subsection (4) of the section provides:

     "A person shall not be returned, or committed or kept in custody for the purposes of such return, unless provision is made by the relevant law, or by an arrangement made with the relevant foreign state, Commonwealth country or colony, for securing that he will not, unless he has first had an opportunity to leave it, be dealt with there for or in respect of any offence committed before his return to it other than-- (a) the offence in respect of which his return is ordered; (b)an offence, other than an offence excluded by subsection (5) below, which is disclosed by the facts in respect of which his return was ordered; or (c) subject to subsection (6) below, any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with."

      Section 12, which appears in Part III of the Act, provides that the decision to return a person into the custody of the requesting state is at the discretion of the Secretary of State. Subsection (2) sets out various circumstances in which it is provided (a) that the Secretary of State shall not make an order under that section and (b) that he may decline to make an order. The relevant subsection in this case is subsection (1), which confers a general discretion on the Secretary of State in these terms:

     "Where a person is committed under section 9 above and is not discharged by order of the High Court or the High Court of Justiciary, the Secretary of State may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides under this section to make no such order in his case."

      The power which is given to the Secretary of State by section 12(1) to make no order in his case is an important part of the protections which the law provides to persons who are the subject of an extradition request. A provisional warrant for his arrest must first be issued under section 8 of the Act. Section 9 provides that, once arrested, he must be brought as soon as practicable before a court for committal to await the decision of the Secretary of State as to his return to the foreign state, Commonwealth country or colony which made the request. His committal is subject to review under the procedures set out in section 11, by which he has the right to make an application for habeas corpus in the High Court. Then there is the Secretary of State's discretion under section 12(1) not to order his return which, as these proceedings have demonstrated, is subject to judicial review by the court in the exercise of its supervisory power. Even after he has issued the surrender warrant the protections are not at an end. The Secretary of State has a continuing duty to keep the matter under review until the person is removed from this country for return to the place which made the request. This is because he has the power, should circumstances change, to withdraw the warrant before it has been implemented. It was in recognition of this duty that, although not obliged to do so by the statute, the Secretary of State agreed to consider the representations made in the light of his original decision letter before issuing his decision of 21 December 1995 not to reverse his earlier decision and withdraw the surrender warrant.

      The evidence as to the basis on which the Secretary of State arrived at his decision on 31 July 1995 that the respondent was to be returned to Hong Kong, and his further decision on 21 December 1995 that there was nothing in the respondent's latest representations which led him to reverse that decision, is to be found in the letters themselves and in the supporting affidavits--the affirmation by Mr. David Ackland, who wrote the first letter, and the affidavit by Dr. Susan Atkins, who wrote the second letter. The structure and content of these documents leads me to the following conclusions about the process of reasoning which the Secretary of State adopted when he took these decisions.

      First, it is stated expressly in these documents that the Secretary of State gave careful consideration to all the representations which had been made to him on the respondent's behalf. On the first page of the letter of 31 July 1995 it is stated: "The Secretary of State considered very carefully all the extensive representations made on behalf of Mr. Launder." In paragraph 2 on the second page it is stated: "The Secretary of State does not consider that the representations made by or on behalf of Mr. Launder are sufficient, either individually or cumulatively, to justify not surrendering him." Statements to the same effect are to be found in paragraph 3 of Mr. Ackland's affirmation. In paragraph 34 of his affirmation this statement appears:

     ". . . The Secretary of State has given careful consideration to each of the points raised on behalf of the Applicant concerning the position of Hong Kong after 1 July 1997 and has concluded that none of them, taken either individually or cumulatively, would lead him to believe that an order for return was unjust or oppressive."

In the letter of 21 December 1995 it is stated: "The Secretary of State has given careful consideration to the representations made by you on behalf of Mr. Launder to determine whether they give rise to sufficient grounds for withholding the surrender warrant." A statement to the same effect is to be found in paragraph 2 of Dr. Atkins' affidavit. No evidence has been shown to us which casts doubt on the accuracy of these statements by two senior officials of the Home Office.

      Secondly, it is clear that great weight has been given by the Secretary of State, in his analysis of what the Divisional Court described as the China Point, to the provisions of the Joint Declaration and the Basic Law. The discussion in paragraphs 2.6 to 2.9 of the letter of 31 July 1995 of the respondent's representations refers throughout only to the Joint Declaration and the Basic Law and, in regard to specialty protection, to an extradition ordinance to be enacted locally. These points are discussed in more detail in paragraphs 23 to 33 of Mr. Ackland's affirmation. In paragraph 34 it is stated: "On all the foregoing matters the Secretary of State has proceeded on the basis that the P.R.C. will honour its obligations and commitments under the established instruments." In her affidavit Dr. Atkins repeats and develops this analysis. In paragraph 5 she states that the Secretary of State "proceeded on the basis" that the P.R.C. would comply with its obligations under the Joint Declaration, and similar statements appear in paragraphs 7, 9, 14, 19 and 20.

      Third, no attempt is made to answer in any other way the many detailed representations on the respondent's behalf that, despite what is said in these instruments, the legal, penal and judicial system in Hong Kong after 1 July 1997 would not protect his right to a fair trial and, if convicted, to appropriate punishment. The respondent's argument is that the Secretary of State's approach, which faithfully reflects the evidence from Hong Kong through the affidavit of the Attorney General, Mr. Matthews, relies solely on the letter of the treaty and does not begin to address itself to reality. As the Divisional Court put it, the concerns which were expressed about this in the respondent's evidence were specific, reasoned and supported by evidential material and by argument. I shall not attempt to summarise this material. It is sufficient to say that it contains numerous examples of acts done or permitted to be done by the P.R.C. and its officials to illustrate the argument that in the P.R.C. the law is seen as the instrument of the Party and of the Executive, and that any legal framework, however fair and however comprehensive, cannot be expected to guarantee and independent system of justice after the handover. Neither of the decision letters or the supporting affidavits address contain any comments which are addressed to this issue.

      Fourth, the test which the Secretary of State has applied in reaching his decision was, as is apparent from the letter of 31 July 1995, whether it was unjust, oppressive or wrong to order the respondent's return. This reflects the wording of section 12(2) of the Extradition Act 1989, which provides that the Secretary of State shall not, in the case to which the paragraph refers, order the return if it appears to him that "it would, having regard to all the circumstances, be unjust or oppressive to return him." The use of this test indicates that the Secretary of State was aware that his primary concern was with the rights of the individual which as Mr. Parker accepted, must prevail over such public interest as there may be in maintaining good relations with the P.R.C.

      Fifth, there is no mention in either of the letters or in the affidavits of a collective Cabinet decision about the effects of the treaty arrangements or of any view taken on this matter by the Government. The views expressed are said to be those of the Secretary himself, in the exercise of his discretion. There is therefore a sound basis in the evidence for examining his decisions in the normal way to see whether there was a defect in the decision-making process in the manner described by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 233-234. But it has to be said that we are dealing here with decisions in which there is obviously a substantial policy content where, as Sir Thomas Bingham M.R. observed in Regina v. Ministry of Defence, Ex parte Smith [1996] Q.B. 517, the court must exercise great caution in holding a decision to be irrational. The area is a particularly sensitive one as it involves an assessment of the effect of treaty obligations undertaken between two sovereign states, as to which Lord Wilberforce's comments in Buttes Gas and Oil Co. v. Hammer (No.3) [1982] A.C. 888, 938 are especially relevant.

The Principles to be Applied in Extradition Cases

      In Atkinson v. United States of America Government [1971] A.C. 197, 232-233, Lord Reid said of the Extradition Act 1870 that it provided a safeguard for the fugitive because the Secretary of State always had the power to refuse to surrender a man committed to prison by the magistrate, and that it appeared to him that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. An express power to this effect has now been conferred on the High Court by section 11(3) of the Extradition Act 1989, as Lord Griffiths pointed out in Regina v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42, 63. The same test, as to whether it would be unjust or oppressive to return the man, is to be found in section 12(2) of the Act which deals with the powers of the Secretary of State. So there can be no doubt that the test which the Secretary of State applied in this case, as appears from the express references to this test in the concluding paragraphs of his letter of 31 July 1995, was the right one.


 
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