Saturday, November 17, 2012

法治的最後防線

前律政司長兼基本法委員會副主任梁愛詩近日連串炮轟法官及司法制度,引來廣泛討論。有評論員引用人權案例《泰晤士報訴英國》質疑我對此案例認識不深,以藐視法庭罪妨礙梁愛詩之「言論自由」,應受譴責。
該 評論員以筆名見報,難以判斷是否法律界人士,但他似乎對藐視法庭之概念和原則一知半解,我認為有必要正其視聽。事實是,過去十多年我曾多次公開引用及解釋 《泰晤士報訴英國》之案例。該案涉及民事藐視法庭,與梁愛詩之言論有原則上的分別。在《泰晤士報訴英國》一案中,英國上議院堅持公眾傳媒在案件審理中,不 得公開討論該案所觸及之公眾議題。泰晤士報最終在歐洲人權法庭得直,導致英國修改關乎新聞自由之藐視法庭法。

我最近公開提及的,是刑事藐視 法庭(criminal contempt),所涉及的原則為若有人公開侮辱、威嚇法官,或意圖引致公眾對法官或司法體系產生疑慮,甚或失去信心,侵害法治,便可構成刑事藐視法庭 罪。最近一例子便是十多年前,有某傳媒機構容許一專欄作者每天辱罵大法官,結果其編輯被定罪入獄。傳媒上訴至終審庭亦被駁回。當時被告亦有引用《泰晤士報 訴英國》以圖解脫,但法庭認為原則有別,並不適用。刑事藐視法庭可說是言論自由之界線,是因為法治是脆弱的,若法律容許社會上言行有份量之人不斷公開質 疑、抨擊法 官或法制,導致市民對司法體系失去信心,法治便難以樹立,最後更可能導致這社會核心價值全面崩潰。因此,刑事藐視法庭是維護法治之最後防線,不容忽視。

從一國兩制之角度而言,香港若失去法治,也不用談甚麼五十年不變了!梁愛詩在這方面要慎言謹行,正是這原因。

9 comments:

Frankie Fook-lun Leung said...

Even if I agree with you, you cannot and should not use the rule of law as the excuse to suppress freedom of speech. She may attack the legal system as Michael Zander used to write articles and books to attack the British legal system. He got recognized as an expert. I wrote articles in the H K Economic Journal which were subsequently compiled into six books criticizing the colonial and post-colonial legal system too.

Frankie Fook-lun Leung said...

I am your last defense. I live outside H K. I am entirely free to tell the world what is going on in Hong Kong. I have no vested interest nor fear.

Frankie Fook-lun Leung said...

Remember what Shakespeare said: first thing to do, kill all lawyers. That is what happens in authoritarian countries. Unless H K people do not blindly follow those slogans of the lefties, rule of law in H K has no chance of survival.

Frankie Fook-lun Leung said...

If I were Elsie Leung, I would like her, decline to attend the Legco meeting. You cannot summon her. Your invitation can be declined. She does not care what you folks in H K say about her. She has got her mandate from Beijing. In Cantonese, she can say: Tsui or Chui.

Frankie Fook-lun Leung said...

Now there is a scramble for appointments of National People's Congress delegate honors, who cares about your OBE, Knighthood, Queen's Counsel,that kind of crepe.

Frankie Fook-lun Leung said...

You think you are such a big deal, elected by the people. The Chinese authorities don't think so. They think that legislators like you are just a bunch of monkeys shouting at each other in the Legco hall.

Frankie Fook-lun Leung said...

Most judges and lawyers in H K are politically naive. They believe or deluded or were misled to believe that after a transfer of sovereignty, life as a lawyer will be business as usual. Look at the flag outside your building. It is no longer the Union Jack. It is a five star RED.

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