We must define rule of law before we hope for it
In his budget plan for the new financial year unveiled on Feb 26, Financial Secretary Paul Chan Mo-po stated that the respect for the rule of law and judicial independence was among the cornerstones underpinning Hong Kong’s success. As such, a budget of HK$450 million ($58 million) has been reserved for the Department of Justice to implement the Vision 2030 for Rule of Law project. This project, which is expected to last for 10 years, was first brought up in the policy address delivered in October. Under this project, the SAR government hopes to build a dedicated and open platform for stakeholders such as young people, lawyers and academics to exchange ideas on this issue. Through communication, research and capacity-building activities, the goal is to help Hong Kong society get a better understanding of the correct concept of rule of law, and to promote the development of the international rule of law.
Regardless of political stances, people in Hong Kong generally agree that the most important characteristic that makes Hong Kong unique is its robust rule of law, which has earned universal recognition and has been a “golden signpost” indicating an excellent business environment. A common perception is that so long as Hong Kong’s rule of law remains robust under “one country, two systems”, the other core values Hong Kong residents cherish will be protected and improved on. Therefore, the rule of law has become an indispensable necessity to the city. However, the social turmoil triggered by the extradition law amendment bill last year has undermined the rule of law. The police responsible for maintaining public law on the front lines of the conflict are criticized; the Department of Justice responsible for criminal prosecutions has been assailed; and the judiciary that symbolizes legal authority, fairness and justice has been repeatedly criticized and blamed. All of a sudden, Hong Kong’s rule of law was under serious threat.
Nonetheless, it is pleasing to note that the recently released World Justice Project Rule of Law Index 2020 reaffirms Hong Kong’s ranking as No 5 in the East Asia and Pacific region, and No 16 globally. Moreover, Hong Kong’s scores in the three components relating to the rule of law — property rights, judicial effectiveness and government integrity — have all increased in the Heritage Foundation’s recently released 2020 Index of Economic Freedom.
According to the survey on public perceptions toward the rule of law in Hong Kong released by the Bauhinia Foundation Research Centre on Dec 18, 52.2 percent of respondents expressed dissatisfaction with the overall state of the rule of law, with only 11.7 percent expressing satisfaction.
Probably in response to the public’s suspicion and wavering belief in the rule of law, Chief Justice Geoffrey Ma Tao-li and Secretary for Justice Teresa Cheng Yeuk-wah explained the concept of the rule of law and tried to clarify misunderstandings of it in their speeches for the opening ceremony of this legal year. Ma interpreted the rule of law from the perspective of justice, emphasizing equality before the law, clear restrictions on the exercise of individual or collective rights from the law, and the need for the court to ensure fairness in the execution of justice. Cheng, on the other hand, explained both the connotations of the substantive rule of law, and the procedural rule of law for fair trials and due process in showing that the law can be understood, is stable, and predictable.
The Chinese are fond of the saying, “there are a thousand Hamlets in a thousand people’s eyes”, which means that there can be thousands of interpretations for one text. In understanding the rule of law, different values, political positions, and even culture, history, education, and real-life experiences may affect people’s views. Some views have become “one size fits all” truths that have stood the test of time. For example, A.V. Dicey, is known for his expertise in the constitution of the United Kingdom and his book, published in 1885, established the well-known “three elements” of the rule of law. Lord Bingham, a former lord chief justice of the UK Supreme Court, introduced the “eight principles” of the rule of law in his book
On the contrary, arguments such as “break the law to achieve justice” or “civil disobedience” may have been put forward as purely academic viewpoints on the relationship between freedom of speech and the modern rule of law, which, once truly occurring in a society, can endanger and affect the spirit of the rule of law.
Ever since 1997, the premise of the rule of law in Hong Kong is utterly inseparable from the principle of “one country, two systems” and the Basic Law. Due to the “one country, two systems” principle and the provisions of the Basic Law, Hong Kong was able to retain the common-law system and the spirit of the legal system before the handover. This ensured the continual function of such aspects as common law, equity, various ordinances and regulations, subsidiary legislation, and customary law. At the same time, because of the fact that Hong Kong is part of the People’s Republic of China, common law in Hong Kong is bound to be different from other common-law jurisdictions. The
Chinese Constitution is the statutory basis for the establishment of special administrative regions and the formulation of their Basic Laws. The National People’s Congress and its Standing Committee have the power to interpret the provisions of the Basic Law. National laws apply to Hong Kong after they are listed in Annex III to the Basic Law. Such legal characteristics that came into being with the “one country, two systems” principle have naturally become an integral part of the rule of law in Hong Kong.
Therefore, the Vision 2030 for Rule of Law project must clearly explain the definition and meaning of the rule of law applicable to Hong Kong. It should aim to establish and cultivate the correct interpretation and spirit of the rule of law in society. At the same time, the project should also aim to promote the awareness, understanding and respect of the differences between the legal systems and the spirits of the rule of law between Hong Kong and the mainland. On one hand, we must promote Hong Kong society to gradually understand the socialist rule of law on the mainland, to understand the progress and development of the rule of law there, and to eventually eliminate prejudice and misunderstanding about the mainland’s rule of law. On the other hand, it is necessary to strengthen mainland residents’ respect and understanding of the rule of law in Hong Kong, to make good use of Hong Kong’s rule of law in international business transactions.