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我是法律的好仆人,但首先是人民的好仆人。 ——香港大律师吴霭仪法庭陈词

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2021年04月20日

香港资深大律师吴霭仪,前立法会议员,因组织和参加2019年8月18日“未经批准集结”而与其他八名活动人士一起被定罪,包括黎智英(Jimmy Lai)、李柱铭(Martin Lee)和李卓人(Lee Cheuk-yan)等民主运动领袖。吴获判缓刑。在2021年4月16日法庭陈词中,吴指出:“法律必须为人民服务,而非人民为法律服务。”以下是其陈词原文及中文译文。

英文原文

中文

Statement of Margaret Ng Ngoi Yee

8·18 维园集会案
吴霭仪庭上陈词

Source: Stand News
Visited on April 19, 2021

中国人权据《立场新闻》繁体译文编辑

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.

法官阁下,感谢阁下允许我对自己的背景和在自己的行为中所秉持的个人信念作此陈述。

我于1988年成为大律师,但我并非一开始便接受法律训练。我的父母对我很宽容,容许我花十年时间在香港和美国波士顿修读哲学。我学会从追求真理和减轻人类苦难当中,要忠于事实。

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.

我转向法律的重大转变,在于1981年到剑桥修读法律。那些年正是中英就香港未来谈判的重要时期,我这一代人困扰于寻找如何在移交政权后,保留香港自由和原来生活的方法。由于这是非常重要的,因此我成为大律师后,并无即时执业,而是加入《明报》参与编采工作,因为我认为拥有新闻自由,对香港未来是至关重要的,其时我作为政治评论员已有些地位。

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 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.

1990年,我重回法律界,及在 1995 年参选立法会法律界功能界别选举。法律工作者认为,普通法的传统是尊重公民自由,虽然他们不相信不平等的选举,但认为只要能取得席位,就不会允许任何人以法律专业之名违背法治。因此,我代表法律界当选议员,借以维护市民的权利和自由。我承担着双重使命:竭尽所能去阻止立法损害法治,以及保障制度巩固法治,而排在首位的必然是司法独立和司法公正。

上述这些工作都是我自愿承诺去做的。

 

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.

这代表了我首先要一丝不苟地投入立法会的工作。我在立法会总共服务了 18 年(包括没有当选的 1997 年 7 月至 1998 年 8 月),当中的 17 年担任司法及法律事务委员会主席一职,负责检视政策对司法机构、司法条款及制定等,包括土地的分配、法院大楼的开支、法援、法律服务及教育等。提出、讨论及解决了众多议题。

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.

有些工作是关于另类排解纠纷的方法,法律界曾热烈讨论应否让事务律师享有更多权力,于是我便将此事告知首席法官,并邀请他介入,以便在公众利益上解决问题,而不是通过不合情理的权力斗争,且让所有人都看见问题被解决。令公众继续对法律界充满信心,这对法治至关重要。

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.

另外,我的工作亦包括扩充法律援助辅助计划,从为无律师代表的诉讼人提供援助,更加人性化的协助,再到免费社区法律咨询等等,均需要付出额外努力,来寻找解决方案,且常伴随着挫折。 2002 年,我与资深大律师余若薇在立法会上,提出与非牟利组织合作,共同建立社区法律服务中心的建议,以便为人们提供及时且有用的法律咨询。尽管当时政府没有接纳这个议案,但在适当的时候,这个想法在其他地方结出了硕果。

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.

我发现,在这些时候通常需要机智、勤奋和耐心的特质。但是在其他时候,当一个核心价值被侵犯时,就需要强而有力的表态和回应。在 1999 年 6 月,终审法院就吴嘉玲一案,作出具有里程碑意义的裁决后,全国人大常委会随即对《基本法》释法,以推翻终院的裁决,其做法动摇了全球对终院具最终判决权的信念。为了抗议,在同月 30 日,我和 600 多位法律工作者发起了静默游行,在终院大楼前及中环炮台里前声援,以表达我们对法院的坚定支持。在这个关键时刻,相信这样做会使社会不灰心丧气。

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.

捍卫法治的任务同时意味着对立法过程的承诺。我花了很多时间来审议财政议案,并曾在 155 个法案委员会工作过。就法治而言,确保立法会通过的法律健全、基于权利及达到最高标准,是十分重要的,因为法官必须以原则判案,而不是随心所欲。与大多数人相比,律师的处境要好得多,他们知道法例在法庭被审议时,会如何起到作用或不起作用。

在这方面,我经常心存感激,因为我可与法律工作者紧密合作,并且竭尽所能,确保不会无意或不必要地损害市民的权利。法律应该保护权利,而不是剥夺权利,尤其是在香港,这个仍然缺乏结构性民主的地方。市民依靠法律保护他们,而法院是法律的最终仲裁者。

我们需谨记,当法院执行剥夺基本权利的法律时,即使过错在于法律本身,而不是执行该法律的法官,亦对民众对法院和司法独立的信心有所动摇,同时对法治的基础造成沉重打击。

Your Honour, the importance of that 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."

我会选择这样做,主要是受美国最高法院大法官安东尼·肯尼迪(Anthony Kennedy)所启发,他在1999年2月8日,受首席法官李国能邀请来港,在众多法律界人士面前演讲。他对于我们面临的挑战以及独立的司法机构的重要作用深受感动,并称:“司法独立的必要条件是,法官有管辖权、权利和公职,从而解决所有有关法律的事项,这些条件都是保障自由所必备的。如果司法机构没有司法管辖权,那么大律师公会的成员和社会上的群众必须继续施加压力,以扩大管辖范围。这是至关重要的,因为如果大律师公会和社会对过于狭窄的司法宪章漠不关心,便会存在着风险,令人认为司法机构实际上可能正在执行一个剥夺人身自由的计划。”

Those were strong words, Your Honour, but I recognized their authority, and I had ever taken them as marking the ultimate loyalty a barrister owes to 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.

我十分认同上述所说,我曾经将之视为一个大律师对司法独立的无上忠诚。法官您必定能了解到当中没有任何不尊重,捍卫司法独立并不是为了法官本身的利益,而是使他们能够无所畏惧地维护法治。

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 solutions.

捍卫法治的路有两条。我相信立法会的法律工作者有责任聆听、咨询和向社会解释法律:提醒人们拥有的权利和义务,澄清晦涩之处,降低他们的困惑,并邀请他们表达意见及指出错误。立法会亦理应以诚恳的态度解决这些问题,并向政府反映,如遇上无法通过法律解决的事情,立法会应与市民携手,寻求其他解决方案。

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.

我以通俗易懂的文字在本地传媒撰写文章,是我与公众保持联系的其中一种方式,因为每人都应该了解其赖以生存的法律。在过去几年甚至现在,我很少发表学术文章,但我从未放弃撰写文章。

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 to 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.

我在立法会与政府合作的经历,给我留下深刻的印象。法治不仅与法律有关,而且等同管治。制定法律为了香港的和平、秩序和良好管治,保护权利的法律往往能取得人民对其政府的信任,人民的信任亦有助于良好管治。因此,议员有责任向政府表达意见,不断提供咨询、建议、告诫和警告:我们的法律是否认真对待权利?

我知道法律并不完善,律师比起其他人,更知道法律有多不完善。那么,为什么人们要尊重及遵守法律?当然可以有很多答案,但我给自己的答案是:“如果法律与正义最相似,我们便可要求人们服从法律”。这意味着,我们有责任听取对法律的批评,尽我们最大的努力完善法律、纠正错误。正义是法律的灵魂,没有法律,社会便会降至武力管治,即使它是多数人的武力。

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.

在这次审判过程中,阁下注意到2000年12月21日在立法会就《公安条例》进行的辩论。在那次辩论中,我指出条例的缺陷,而那些缺陷长期困扰着法律界。我警告政府,若要避免人们在绝望中违反法律,就必须认真考虑改革。有人在讨论中提出“公民抗命”,时任保安局局长称这是威胁。

我认为不必视“公民抗命”为威胁,而应视为一种警告或提醒。我劝政府不要阻止关于改革的理性讨论,因政府正处于创造条件使“公民抗命”变得不可避免和合理的危险处境:我们都不希望看到这一点。

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 that 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.

在立法会的日子,影响我的一生。捍卫法治,代表我们必须认真对待权利,这是毕生的努力。对香港人而言,言论自由和和平集会自由,是最宝贵的权利。正如法官一再指出的,说出真相的自由,不仅是人类尊严的核心,也是民主社会的最后一道安全阀。故尊重上述权利,也是捍卫法治的重要部分。

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 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.

我亦了解到,法治不仅必须在法院或立法会进行捍卫,而且还必须在街头和社区进行捍卫。我在立法会发言无数,但我还是意识到在言论自由、不受法律诉讼的特权庇护下,仅在立法会以优美的言语和尊严发表演说是不足够的。

当人民在最后关头,不得不集体表达他们的痛苦,敦促政府作出回应时,仅期望政府能尊重他们的权利。我必须准备与他们站在一起,与他们站在一起,为他们站起来。否则,我所有的承诺将只是一句空话。

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 order of the massive crowds astonished and won the admiration of the world.

香港人是喜爱和平和非常有纪律的。过去多个情绪高涨的情况下,香港人都坚定地保持克制。在1997年6月30日及7月1日,重大的交接顺利进行;2003年7月1日五十万人游行,无一块玻璃被打破;即使在2019年,6·9和6·16的超过一百万和二百万人的游行,广大群众的井然有序,都令人震惊并赢得世界的佩服。

And in the incident of the present trial, this was demonstrated again. By the estimation of the organizers, 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 by 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.

目前的审判事件亦证明了上述观点。根据组织者的估计,超过170万人参与当日活动,但不论确切的数字如何,在举行场地内和周围的庞大而密集的人群,在倾盘大雨中耐心地等待,都被拍下来,无可争议,而且流传后代。当日的参与人数和毅力,显示了香港人对社会强烈的感情,他们的克制亦被所有人看见。即使控方对此都无争议:当日活动是完全和平和有序的,并无仼何不幸事件发生。群众与组织者一直秉持着“和平、理性和非暴力”的信念。在这样的时刻,我们不能抛弃人民,而是必须与他们并肩而行,希望和平会取胜。

The positive effect of 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.

行政长官林郑月娥于两日后,亦承认和平示威的正面影响,表示这可以促进政府和公众的对话。虽然那次对话并没有持续太久,但它已迈向正确方向。我相信,我们应该培养希望,并如大法官肯尼迪呼吁法律人员一样,你必须要向你的诉讼当事人讲出道理,向社会讲述公义,向政权说出真相。

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.

我进入法律界很迟,我在服务法治期间变老了。我知道前任大法官托马斯·莫尔(Thomas More)是法律界的圣人。他因叛国罪而受到审判,因为他不愿违反法律去遵守国王的意愿。他著名的遗言得到充分验证,我将其稍为改写:我是法律的好仆人,但首先是人民的好仆人,因为法律必须为人民服务,而非人民为法律服务。

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.

阁下,请允许我感谢我的律师,他们的不懈努力和卓越表现,让我为自己是大律师公会一员而感到自豪。这是我的陈词,感谢阁下。

Dated the 16th Day of April, 202

2021年4月16日