New directions and trends
7.1 Sourcesoflaws
There is confidence that the common law will continue to play an important role in the development of laws in the legal system of the HKSAR. There is also a view that there will be more use of comparative law.[250]
One major issue impinging on the future development of law in the HKSAR is whether the SCNPC will interpret the Basic Law again in the coming years.
The former Secretary for Justice, Elsie Leung, was criticised by some members of Hong Kong's legal community for allowing too many interpretations by the SCNPC. When Wong Yan Lung assumed his duty as the Secretary for Justice after the resignation of Elsie Leung in 2005, he promised that he would try to avoid any situation that would need the Basic Law to be interpreted by the SCNPC again. In case such an interpretation is needed, he said would try his best to limit the impact as much as possible. Despite this promise, the SCNPC still made an important decision for Hong Kong's political development[251] on the basis of a previous interpretation. Even though this power is in accordance with the provisions of the Constitution and the Basic Law, it is still widely considered to be �uncommon law' in Hong Kong's legal community.Past experience tells us that, during times of constitutional controversy, there is a big temptation for the HKSAR Government and the Chinese Government to use this convenient constitutional tool to suppress different opinions. One cannot exclude the possibility that the SCNPC will exercise its power to interpret the Basic Law again.
In the years ahead, one can foresee that there will be at least two constitutional controversies. The first is the amendments to the Basic Law and electoral laws to introduce universal suffrage for the election of the Chief Executive and all members of the LegCo. The second is the enactment of the law to implement art 23 of the Basic Law requiring the HKSAR to legislate to prohibit any act of treason, secession, sedition, subversion against the CPG.[252]
7.2 Legalinstitutions
The SCNPC has promised that the Chief Executive will be elected by universal suffrage in 2017 and all members of the LegCo may be elected by universal suffrage in 2020.
The changes in the methods of election of the ChiefExecutive and the LegCo will inevitably change the interrelationship between the execÂutive authorities and the legislature in the HKSAR and their responsiveness to the expectations of Hong Kong people for the manner and substance of the governance of the territory.The HKCFA has learnt how to relate to the SCNPC in an appropriate manner to avoid conflict following their first clash in 1999. The HKCFAhas not encountered another real challenge since 1999, by carefully avoiding direct conflict with the SCNPC.[253] Again, there is no guarantee that the HKCFA will not be involved in another constitutional controversy with the SCNPC in the future. A possibility is a legal challenge to the constitutional status of the ICCPR.
7.3 Legalprofessions
There will be changes to the rights of audience in the courts of the HKSAR. The HKSAR Government has introduced a Bill to grant higher rights of audience to solicitors.[254] This is based on the recommendation made by the Working Party on Solicitors’ Rights of Audience established by the Chief Justice. Solicitors may apply to a board called the Higher Rights Assessment Board for higher rights of audience before the High Court and the Court of Final Appeal. The Assessment Board will comprise members appointed by the Chief Justice from serving or former judges, members of the legal profession and officers of the DOJ, as well as a lay member also appointed by the Chief Justice. To be eligible for applying to the Assessment Board for higher rights of audience, an applicant must have at least five years’ post-qualification experience and comply with certain rules, which may include requirements respecting completion of an approved advocacy course and passing of related assessments, to be made by the Assessment Board. In addition, the Assessment Board must be satisfied that the applicant has acquired recent litigation experience and is in all respects a suitable person to have the higher rights of audience for which the application is made.
In 2005, the Conditional Fees Sub-Committee under the Law Reform ComÂmission published a consultation paper on conditional fees. It was suggested that the ban on conditional fees should be lifted for certain types of civil litigation.[255] Conditional fees are a form of â€?no win, no fee’ arrangement. If the case is unsuccessful, the lawyer will charge no fees. In the event of success, the lawyer charges his usual fee plus an agreed flat amount or percentage â€?uplift’ on the usual fee. This is different from the American form of contingency fee, where the lawyer’s fee is calculated as a percentage of the amount of damages awarded by the court. Up to now, there is still no legislative measure to introduce the scheme.
7.4 Legalculture
Whether Hong Kong people will raise their expectations for legal protection of inborn rights and judicial independence will await further study.
Change in one aspect of legal culture can be foreseen. Following internaÂtional trends, both the judiciary and the HKSAR Government have been active in promoting the use of alternative dispute resolution processes. Thejudiciary has issued a new practice direction on meditation[256] and recognises that its duty is to facilitate the settlement of disputes by active case management. If the court considers it appropriate, it will encourage the parties to use alternative dispute resolution procedures such as mediation to settle a dispute. In exercising its discretion on costs, the court may take into account all relevant circumstances including any unreasonable failure of a party to engage in mediation where this can be established by admissible materials.
The DOJ has introduced the �Mediate First Pledge' program. It encourages companies in Hong Kong to promise to use mediation to resolve disputes before pursuing other alternative dispute resolution processes or litigation before the courts by signing a �Mediate First' pledge. It is expected that institutional reform can change the culture of the people in the long run. In fact, using mediation to resolve disputes is consistent with the spirit of Chinese culture.
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