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【中譯全文】吳靄儀陳詞:法律應侍奉人民 而非人民臣服法律


8.18流水式集會案,李柱銘、吳靄儀等7名被告經審訊後被判罪成,今日被判囚8至18個月。本案第三被告吳靄儀被判囚12個月,緩刑2年。她今早在庭上選擇自辯,娓娓道來自己逾半世紀的工作、對法治的信念。陳詞末段,她引用並稍為修改英國哲學家Thomas More被處死前的遺言:「I stand the law's good servant but the people's first. For the law must serve people, not the people the law.(我是法律的忠僕,但我首先是人民的公僕。因為法律應該侍奉人民,而非人民臣服於法律。)」

眾新聞將吳靄儀在庭上的英文陳詞全文翻譯成中文。

吳靄儀今早到達西九龍裁判法院。周滿鏗攝

吳靄儀在庭上陳詞的中譯全文

法官閣下,感謝閣下容許我陳詞述說我個人背景,及在工作中一直持守的個人信念。

1988年,我獲認許為大律師,但我早年並非學習法律。寬容的雙親讓我花十年時光先後在香港和波士頓的大學修讀哲學。我學習到在追求真理和如何減輕人類痛苦的過程中,必須篤行慎思明辨。

我在1981年到劍橋大學修讀法律,對我而言這是巨大的轉變。那時中英談判正在進行,是香港前途的重要年頭。我們這一代人,致力尋求如何在主權移交後,維持香港的自由和原來的生活方式。這對所有人極為重要,乃至我成為大律師後,並沒有立即開始執業,而是選擇到《明報》擔任編輯工作。因為我深信強而自由的新聞傳媒對香港未來至關重要,我當時作為時事評論員也漸有一定地位。

吳靄儀年輕時的照片。資料圖片

1990年我恢復法律工作,但在1995年,我被說服參選立法局法律界功能界別。法官閣下,法律界浸淫普通法公民自由的傳統,不接受不平等的選舉,但亦認為有這個議席時,不容許任何人以他們的名義損害法治。當我被選為法律界的代表、獲得港人信任,我要透過這個議席,守護受法律保障、維護港人權利與自由的法律制度。我承擔著雙重使命:竭盡所能防止損害法治的法律,同時守護這個支撐法治的制度。最重要的是,是司法獨立和實踐公義。

這些是我自願承諾要履行的使命。這首先代表要在立法會各委員會內認真盡責地工作。

我擔任立法會議員18年(包括由1997年7月到1998年8月臨立會時期,我沒有議席的一年),其中17年我擔任司法及法律事務委員會主席,負責監督司法機構相關法律政策和編制,包括法院的建築位置及費用、法律政策、法律援助、法律專業組織、法律服務和法律教育。在委員會上提出、討論和解決了大量議題。

部分工作需要以新穎的方法化解爭議。在事務律師於較高級法院出庭發言權的爭議上,基於公眾利益,我請終審法院首席法官介入以化解爭議,而不是讓他們不恰當地爭奪地盤。維持公眾對法律專業的信心,對法治至關重要。

其他需要加倍努力尋求解決方法的例子,還包括擴展法律援助輔助計劃,以協助沒有法律代表的訴訟當事人,並向市民提供更友善和有用的免費社區法律諮詢服務。但計劃經常面對挫折。2002年,當余若薇資深大律師也在立法會時,我們與非政府組織合作,提出一項設立社區法律服務中心的建議,為市民提供及時和實用的法律諮詢服務。儘管當時政府拒絕接納建議,但在適當的時候,這個想法會在其他地方結出果實。

我發現,我們經常需要圓滑地處理紛爭的技巧,需要勤奮和耐心。但當一項基本價值被違反時,就需要強而有力的聲明和回應。1999年6月,終審法院在吳嘉玲案就居留權爭議作出判決後,全國人大常委首次就《基本法》釋法,推翻終院的裁決。人大釋法動搖了世界對本港法院終審權的信心。6月30日,我和超過600名法律界人士參與靜默遊行以示抗議,我們團結地在當時砲台里的終審法院門前默站,在那關鍵時刻表達對法院的堅定支持,好讓社會不會泄氣。

1999年6月,法律界發起首次黑衣靜默遊行,抗議人大就吳嘉玲案釋法。蘋果日報圖片

法官閣下,捍衛法治也代表積極投入法律制定程序。我投放了大量時間審議法律,記錄顯示,我曾參與155個法案委員會的工作。立法機關通過的法律要健全,以權利為本位,達到最高標準,對法治而言至關重要。因為,即使法律條文不如法官所願,他們有責任應用條文。在法律條文在法庭受測試時,律師比大多數人更適合知道一套法律行或行不通。因此,我與我法律界緊密合作,並為此常存感激。我們竭盡所能,確保人民的權利不會被任意或不必要地損害。法律應該保護人民的權利,而不是剝奪權利,尤其是在香港這個仍然沒有民主架構的地方。人民依靠法律來保護他們,而法院是法律的最終仲裁者。我們時刻記掛,當法院用一條剝奪人民基本權利的法律時,即使錯在法律條文而非運用法律的法官,公眾對法院和司法獨立的信心也會動搖。這會打擊法治的根基。

法官閣下,一位傑出的法官 ─前任美國最高法院大法官 Anthony Kennedy,在1999年2月8日應時任終審法院首席法官李國能的邀請,來港向司法機構和法律界發表演說。他的演說讓我清楚明白到這份責任的重要性。對於我們面臨的挑戰和司法獨立的重要角色,他深受觸動。

他提出:「司法獨立其中一個前提,是法官在有管轄權、權利和官方身分去決定所有與自由所需的事情。如果法院並無這種程度的管轄權,法律界及社會大眾必須持續爭取擴大管轄權。這是至為關鍵,因為如果法律界和社會都對過分狹窄的司法章程都不為所動,法庭面對事實或觀感上可能協助及教唆剝奪人身自由的陰謀的風險。」

這是十分強硬的言辭,法官閣下,但我認同其權威性,我甚至從此視為大律師忠於司法獨立的極致。法官閣下,無意冒犯,但守護司法獨立並不是為法官的自身利益,而是為了讓法官能夠無畏地捍衛法治。

前任美國最高法院大法官 Anthony Kennedy。維基百科圖片

守護法治是雙向的。我相信立法會的法律界議員有責任向社會聽取意見、諮詢和解釋法律:提醒市民他們擁有的權利和義務、釐清含糊難明的事情、減少市民的困惑、邀請市民表達關注和指出錯誤、真誠地回應這些關注、在政府面前有力地代表他們。當法律沒法回應市民的需要,我便需要與他們一起尋求解決方法。

以一般讀者易明的語言投稿本地傳媒,是我與公眾保持接觸的其中一種方法。因為所有人都應明白他生活環境中的法律。這些年來,即使到今日,我從未放棄這做法。我有時也會出版學術文章及投書給學術論壇,尤其是需要法律改革的議題。

法官閣下,在立法會與政府共事,令我意識到法治不只是牽涉法律,同樣地涉及管治。因為法律必須是為了「香港的和平、秩序及良好管治」。有能夠保障權利的法律,政府更易贏得人們的信任,信任有助良好管治。所以民選代表有責任向當朝政府提出異議:時刻建議、忠告、規勸、甚至警告:到底我們的法律有否認真看待權利?律師比任何人都清楚,法律並不完美。為什麼人們要尊重及服從法律?這當然有眾多答案,但我是這樣回答自己:如果法律是最接近公義,我們才可要求人們遵守法律。這意味著,我們有責任聆聽對法律的批評,真誠地完善法律,及盡可能修正錯誤。公義是法律之魂,沒有公義,法律只是以力量統治,甚至是多數人的暴力。

去年4月,吳靄儀因本案被捕後到中區警署接受拘捕。資料圖片

在審訊的過程中,閣下應察悉到,2000年12月21日立法會有關公安條例的辯論。在辯論中,我指出現行條例的不足,並警告政府我們必須認真考慮改革,避免在絕境時違反法律。事務委員會中有人提及公民抗命的議題,而時任保安局局長稱之為一種威脅。但我們不一定這樣看待公民抗命,應視為一種警告或提醒。我當時促請政府不應關上理性討論改革的大門,因政府的頑固恐怕反而令公民抗命變得無可避免及有理據,這是無人想見到的。

在立法會的這些年影響我一生。法官閣下,捍衛法治代表我們必須認真對待我們的權利,這也是畢生的奮鬥。

對香港人而言,沒有比表達自由和集會自由更彌足珍貴。表達真相的自由,不單是關乎人的尊嚴,正如我們顯赫的法官多次指出,這也是民主社會的最後安全閥。尊重這些權利,是捍衛法治不可分割的部分。

我明白到,不只要在法庭或立法會內守護法治,也要在街頭和社區守護。法官閣下,我在立法會內無數次發言,但我意識到,在議事廳內受特權保障及免受刑責的亮麗言詞及循規蹈矩並不足夠。當人們走到最後一步表達不滿及集體要求政府回應、預期政府會尊重他們的權利,我必須準備站在他們一邊,與他們同在,為他們站出來。否則,我所有的誓言及承諾都會淪為空話。

2019年8月18日,170萬港人冒雨參與民陣「流水式集會」。資料圖片

法官閣下,香港人是熱愛和平及非常守秩序,時間一再印證,他們在非常情緒高漲的情況下,仍然堅持自我克制。在1997年6月30日及7月1日主權移交的關鍵時刻,這重大日子順利度過;2003年7月1日50萬人上街,並無任何一個玻璃窗被打爛。即使在2019年,超過100萬人在6月9日遊行,然後200萬人在6月16日遊行,大量群眾和平及秩序良好,令全世界感到意外且稱許。

今次審訊的事件中再次印證了這點。主辦單位估計,超過170萬人參與了818當日活動。不論確實數字為何,龐大綿密群眾齊集現場和周圍,案中不受爭議片段為後世紀錄了群眾在雨中的堅忍。人數及他們的堅毅訴說著社會強烈的反應,即便如此,當中的克制是有目共睹的。即使控方也不爭議,是當日完全和平有序,並無任何不幸事件發生。

群眾相信及加入組織者的「和平理性非暴力」。當刻我們不能拋下群眾,我們一定要與他們並肩而行,期望和平來臨。

該次遊行和平進行,其正面效果是兩日後獲特首林鄭月娥確認,認為會有利政府與公眾的對話。該次對話並不持續太久,但走出了正確的方向。我相信,我們應當繼續孕育希望,呼籲法律界齊集加入優秀的行列之中,正如Kennedy法官所言:您必須以理說服與訟雙方;您必須向社會彰顯公義;您必須向當權者說真話。

法官閣下,我較別人遲進入法律界,而我現在於法治服務歷程中年華漸老。Sir Thomas More是法律專業的至聖。他因為不服從國王意願扭曲法律,因此被判叛國。他著名的遺言早被充分證實。容我稍為修改及套用如下:我是法律的忠僕,但我首先是人民的公僕。因法律應該侍奉人民,而非人民臣服於法律。

法官閣下,請容許我感謝我的代表律師們。他們孜孜不倦的投入及追求卓越,令我對作為大律師一份子深感自豪。

以上是我的陳詞,謝謝您,法官閣下。

吳靄儀在庭上陳詞原文(英文)

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.

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 as 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.

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 the 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 recognised their authority, and I had ever taken them as marking the ultimate loyalty a barrister owes to a 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 resolutions.

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 of 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 this 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 the 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 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 organisers, 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 for 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 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.




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