Opinion Politics & Protest

Minding our privileges and questions: the Justice Sec.’s ‘confidential’ legal advice to election officers

This is a hard time to be Secretary for Justice, and would still be even if you hadn’t turned up with a large collection of illegal structures and an ethically dubious tax dodge. So I hesitate to join the chorus of complaints about the new secretary’s department.

On the other hand, errors which go uncorrected are likely to be repeated. So…

teresa cheng

Teresa Cheng. Photo: HKFP/Catherine Lai.

The Department of Justice seems to have stumbled into a serious misunderstanding about its privileges with regard to answering questions. The legal political issue of the day concerns why Returning Officers might reject the candidacy of people who meet the stated formal requirements for running in an election, and whether they have the right to do so.

In defence of the Returning Officers concerned, who in the Hong Kong system are all District Officers, so full-time card carrying members of the central Civil Service, officials have assured us that they were acting on legal advice. However a nameless spokesman added last week that the content of this advice cannot be disclosed, due to “attorney-client privilege”.

Actually this is the American term. In the English legal system it is known as legal professional privilege. In her latest Legco appearance the Secretary for Justice used neither term, but seemed to be relying on the concept when she said that the legal advice given to Returning Officers could not be disclosed because it was confidential.

agnes chow

Agnes Chow shows her election race disqualification notice to reporters. Photo: In-Media.

The idea of legal professional privilege is that communications between a client and his or her lawyer cannot be disclosed … by the lawyer. The obligation on the lawyer is absolute, and in order to help observance a court will not compel the parties to a case to give evidence on what passed between them and their lawyers, much less compel the lawyers themselves.

Readers may think that this is a preposterous idea when applied to the advice the Department of Justice gives to other government departments. The idea that government lawyers are independent thinkers giving professional advice to a “client” who is the rest of the government is popular with government lawyers. It enables them to conceal from themselves the fact that they have forsaken the excitements and hazards of private practice for the tedium and security of the Civil Service.

But in practice there is no more reason to regard the lawyers as separate from the government than, say, the slope engineers or the sewage works designers.

However this line of thought is erroneous. The House of Lords, no less, has determined that in-house lawyers are still in a lawyer-client relationship with their employers. They just happen to have only one client. So in principle it will not do for a government lawyer to tell us what advice he or she gave the rest of the government.

But, and it is a big but, you will notice that this obligation of confidence does not apply to the client. The client is free at any time to discuss his legal situation in whatever detail he wishes, or to “waive the privilege” as the jargon has it, and authorise his lawyer to tell all on his behalf.

The Department of Justice.

The Department of Justice. Photo: GovHK.

So where a government department or official seeks legal advice from the Department of Justice, there is an obligation on the lawyer consulted to keep the matter under his hat. But that does not mean a blanket ban on disclosure. If lawmakers are taking an interest in the matter there is no legal bar to the government, as the client, telling them what the legal advice provided was.

I realise that this places the Secretary for Justice in a tricky ambiguous position. Is she the lawyer, the client, or both? And it would be quite understandable, if this ambiguity was too painful, if questions were referred to some other official who was clearly on the client side of the fence.

But I’m afraid as an excuse for keeping secret what should be public, this excuse does not fly. If officials are taking controversial steps on legal advice, then of course the public and its representatives have every right to know what that advice was.

Actually we are only in this situation because the legal system has displayed a curious anomaly when dealing with election matters. When the government wishes to disqualify elected legislators, the law is a rocket-assisted hare. When it is invited to protect the rights of candidates and electors from arbitrary interference by officials, on the other hand, the law is a paraplegic tortoise.

One of the candidates disqualified last year filed an immediate challenge in the High Court and the case was heard in May. Since then no judgement has materialised. Another challenge was filed in October last year. It has not yet been heard.

Probably whichever side loses will wish to appeal. At the rate we are going, the terms of office of those elected in the last election will have expired before the judiciary gets round to a final verdict on the validity of the election. This is the rule of law …as depicted in Bleak House.

Minding our privileges and questions: the Justice Sec.'s 'confidential' legal advice to election officers