HK shines when it comes to rule of law Global bench­marks put city near the top of ju­ris­dic­tions world­wide, a marked im­prove­ment on pre-handover sta­tus

China Daily (Hong Kong) - - 20TH ANNIVERSARY OF HKSAR - By LUIS LIU in Hong Kong luis­liu@chi­nadai­lyhk.com

When China and the United King­dom be­gan to ne­go­ti­ate Hong Kong’s fu­ture in the 1980s, there was skep­ti­cism about what would hap­pen to the city’s com­mon law sys­tem. Mis­trust by the in­ter­na­tional com­mu­nity en­dured after the Chi­nese gov­ern­ment pro­posed the un­prece­dented “one coun­try, two sys­tems” prin­ci­ple.

The past 20 years con­tin­ued to see crit­i­cism about the Hong Kong Spe­cial Ad­min­is­tra­tive Re­gion’s “fail­ure” which wors­ened the rule of law and ju­di­cial in­de­pen­dence — es­pe­cially from the city’s op­po­si­tion camp. How­ever, sta­tis­tics tell a dif­fer­ent story. The World Bank’s World­wide Gov­er­nance In­di­ca­tors pro­ject put Hong Kong at the 94.7 per­centile for rule of law in 2015. The fig­ures show the city out­ranked 94.7 per­cent of 113 coun­tries and re­gions as­sessed.

In the same year, the United King­dom was at 93.8 and the United States at 90.4. Sin­ga­pore — Hong Kong’s all-time ri­val — was at 96.6.

In 1996, a year be­fore Hong Kong’s re­turn to China after 150 years of Bri­tish rule, Hong Kong only scored 68.4.

At a sym­po­sium in Bei­jing com­mem­o­rat­ing the 20th an­niver­sary of im­ple­ment­ing the Ba­sic Law, top na­tional leg­is­la­tor Zhang De­jiang said the world-renowned in­dex showed the rule of law in Hong Kong, one of the is­sues that con­cern the in­ter­na­tional com­mu­nity most, had been proved a suc­cess.

Other in­di­ca­tors have shown sim­i­lar re­sults. In the World Jus­tice Pro­ject Rule of Law In­dex, one of the world’s lead­ing sources for orig­i­nal, in­de­pen­dent data on the rule of law, Hong Kong scored 0.77 out of 1 last year. This was 16th in global rank­ings and third in Asia, only be­hind Sin­ga­pore and Japan. Lead­ing the list are mainly Nordic coun­tries in­clud­ing Den­mark, Nor­way, Fin­land and Swe­den.

In the Global Com­pet­i­tive­ness Re­port 2016-2017 pub­lished by the World Eco­nomic Fo­rum last Septem­ber, an­other rep­utable in­dex, Hong Kong was the only Asian econ­omy that was ranked in the top 10 on ju­di­cial in­de­pen­dence out of 138 ju­ris­dic­tions, and came third among com­mon law ju­ris­dic­tions.

The inc um­bent Pres­i­dent of UK’s Supreme Court and a non-per­ma­nent judge of Hong Kong’s Court of Fi­nal Ap­peal David Neu­berger said con­cerns about the city’s ju­di­cial in­de­pen­dence had been ex­ag­ger­ated.

“The con­cern re­minds me of the wor­ries which some UK judges have about the fact that their email ad­dress ends with ‘.gov.uk’. ‘We are not part of the gov­ern­ment; we are in­de­pen­dent’, they cry.”

Thus dur­ing a visit to the UK for pro­mo­tion of Hong Kong’s le­gal sys­tem, Sec­re­tary for Jus­tice Rim­sky Yuen Kwok-ke­ung ex­pressed his hopes for the in­ter­na­tional com­mu­nity to look at fig­ures in­stead of just lis­ten­ing to opin­ions of some me­dia.

“Ad­mit­tedly, the rule of law has be­come a very pop­u­lar topic in Hong Kong, and it of­ten at­tracts at­ten­tion in the me­dia, in­clud­ing over­seas me­dia,” Yuen said.

“The views ex­pressed through th­ese chan­nels are ad­mit­tedly very di­ver­gent. On my part, I would in­vite you to make a dis­tinc­tion be­tween mere as­ser­tions on sub­jec­tive per­cep­tion on the one hand and ob­jec­tive facts on the other,” Yuen stressed.

Vet­eran po­lit­i­cal an­a­lyst and Ba­sic Law ex­pert Song Sio-chong said: “It is not hard to see Hong Kong’s strength in its le­gal sys­tem un­der the cur­rent ‘one coun­try, two sys­tems’, es­pe­cially when com­par­ing with other de­vel­oped coun­tries and re­gions.”

The Ba­sic Law pro­vided a real guar­an­tee on Hong Kong’s ju­di­cial in­de­pen­dence and rule of law, Song said.

The city’s high global rank­ings in the rule of law can be at­trib­uted to a so­ci­ety with lit­tle tol­er­ance for cor­rup­tion, and world­class or­der and se­cu­rity, Song stressed.

The city’s civ­i­lized law-en­force­ment au­thor­i­ties, civil jus­tice, ef­fec­tive ac­cess for civil­ians to le­gal ser­vices and free­dom of ex­pres­sions also added to its high scores, Song an­a­lyzed.

Fi­nal ad­ju­di­ca­tion

One change that makes the ju­di­ciary more in­de­pen­dent after 1997 is the shift of the fi­nal ap­pel­late court from out­side to within the city, Song said. It sym­bol­ized the re­turn of ju­di­cial power to Hong Kong, he added.

Be­fore and when the Ba­sic Law was pro­mul­gated in 1990, the fi­nal av­enue of ap­peal for cases heard in Hong Kong was the Ju­di­cial Com­mit­tee of the UK’s Privy Coun­cil. To ad­dress this inconsistency with China’s re­sump­tion of the ex­er­cise of sovereignty over the city, the Ba­sic Law stip­u­lates that a Court of Fi­nal Ap­peal (CFA) should be es­tab­lished in Hong Kong.

The move, which handed the power of fi­nal ad­ju­di­ca­tion to Hong Kong, has also raised the level of recog­ni­tion of Hong Kong’s le­gal sys­tem around the globe, Yuen noted. Yuen stressed that dur­ing the colo­nial days, de­ci­sions made by the Hong Kong courts were hardly cited by the fi­nal ap­pel­late courts in other com­mon law ju­ris­dic­tions. “How­ever, since the CFA was es­tab­lished, we have seen a sig­nif­i­cant change in the sce­nario,” Yuen stressed.

More­over, the Ba­sic Law lets judges from other com­mon law ju­ris­dic­tions sit on the CFA, al­low­ing the court to draw on their ex­pe­ri­ence while main­tain­ing close links with other ju­ris­dic­tions, Yuen said.

Cur­rently, out of 22 judges, 17 are of non- Chi­nese na­tion­al­i­ties, mainly from the UK, Aus­tralia and New Zealand, ac­cord­ing to the CFA judge list.

Hong Kong is one of the few ju­ris­dic­tions that al­low for­eign judges, be­sides Sin­ga­pore and Dubai, ac­cord­ing to a re­search by China Daily.

In terms of trans­parency, Hong Kong con­sis­tently re­mained in the top 20 economies with very low lev­els of cor­rup­tion in the world, ac­cord­ing to the Cor­rup­tion Per­cep­tions In­dex. The city was ranked the 15 th least cor­rupt place among 176 coun­tries and re­gions last year.

Mean­while, Hong Kong has main­tained its world-lead­ing safety record among global me­trop­o­lises, es­pe­cially at a time when many face de­clin­ing pub­lic or­der and es­ca­lat­ing ter­ror­ism threats, ac­cord­ing to a va­ri­ety of global rank­ings on safety and on per­sonal se­cu­rity.

No one is above the law. Every­one, re­gard­less of race, gen­der, reli­gion, po­lit­i­cal af­fil­i­a­tion, opin­ion or po­si­tion is equal be­fore the law.” Hong Kong gov­ern­ment

Le­gal aid

Other than quan­tifi­able as­pects, a num­ber of day-to-day prac­tices also mat­ter, Song said.

Peo­ple’s easy ac­cess to the courts or jus­tice car­ried great weight in as­sess­ing how the rule of law was val­ued, Song said. Among other com­mon law ju­ris­dic­tions, Hong Kong has a ro­bust le­gal aid sys­tem, he reck­oned.

“In ap­pro­pri­ate cir­cum­stances, ap­pli­cants for ju­di­cial re­views would be granted le­gal aid so that they would be in a po­si­tion to chal­lenge ad­min­is­tra­tive ac­tion or gov­ern­ment pol­icy with re­sources pro­vided by the gov­ern­ment.”

Mean­while, peo­ple of var­i­ous po­lit­i­cal views have been pro­vided with le­gal aid when they face lit­i­ga­tion, Song ex­plained. Those in­clude protesters who par­tic­i­pated in the il­le­gal “Oc­cupy Cen­tral” move­ment in 2014, and even those who cre­ated se­vere chaos in the Mong Kok riot last year, ac­cord­ing to of­fi­cial doc­u­ments.

Ac­cord­ing to law re­ports, many lead­ing con­sti­tu­tional or hu­man-rights cases went be­fore the court with the sup­port of le­gal aid. Ac­cord­ing to Hong Kong’s lat­est an­nual bud­get, the gov­ern­ment will fund its Le­gal Aid Depart­ment HK$996.8 mil­lion ($127.7 mil­lion), al­most the same as that of the last year amid a steady in­crease.

In some other com­mon law ju­ris­dic­tions, launch­ing a law­suit en­tails great costs and de­ter­mi­na­tion es­pe­cially dur­ing an eco­nomic slow­down, Song ob­served.

Some law firms some other ju­ris­dic­tions, such as the United States, have de­ducted their free ser­vice hours while there are likely to be le­gal aid bud­get cuts, he no­ticed.

How­ever, the Hong Kong gov­ern­ment per­se­veres. “Safe­guarded by an in­de­pen­dent ju­di­ciary, the rule of law en­sures a se­cure en­vi­ron­ment for peo­ple and or­ga­ni­za­tions and a level play­ing field for busi­ness,” the Hong Kong gov­ern­ment said.

“No one is above the law. Every­one, re­gard­less of race, gen­der, reli­gion, po­lit­i­cal af­fil­i­a­tion, opin­ion or po­si­tion is equal be­fore the law.

“Pri­vate in­di­vid­u­als, le­gal per­sons and pub­lic en­ti­ties all have the right to ac­cess courts to en­force le­gal rights or de­fend an ac­tion,” it added.

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