The Rule of Law in Hong Kong Is In­tact and Ro­bust

Global Asia - - CONTENTS CONTINUED - By Chan Chak-ming

Po­lit­i­cal de­bate in hong Kong has in­creas­ingly in­cluded ex­pres­sions of fear that le­gal cer­tainty is be­ing eroded. these fears are mis­placed.

Hong Kong’s rep­u­ta­tion as one of Asia’s world-class cities and an im­por­tant global fi­nan­cial hub is deeply rooted in its com­mit­ment to the rule of law. It is a con­cept that its res­i­dents cher­ish.

But since the stu­dent-led prodemoc­racy demon­stra­tions that rocked the city in 2014, po­lit­i­cal de­bate in Hong Kong has in­creas­ingly in­cluded ex­pres­sions of fear that the rule of law is be­ing eroded. CM Chan ar­gues that those fears are mis­placed and that the rule of law is in­tact and ro­bust. “Rule OF law” is a com­plex con­cept with very dif­fer­ent mean­ings in dif­fer­ent ju­ris­dic­tions. In hong Kong, it has been cher­ished as one of the city’s “core val­ues.” the Ox­ford English Dic­tio­nary de­fines it as “the author­ity and in­flu­ence of law in so­ci­ety … the prin­ci­ple whereby all mem­bers of a so­ci­ety [in­clud­ing those in gov­ern­ment] are con­sid­ered equally sub­ject to pub­licly dis­closed le­gal codes and pro­cesses.”1 For the pur­pose of this ar­ti­cle, I shall fo­cus on “le­gal­ity,” “equal­ity be­fore the law” and “ju­di­cial in­de­pen­dence,” which are uni­ver­sally ac­cepted as es­sen­tial com­po­nents of the rule of law. I will then ar­gue that the rule of law re­mains ro­bust in hong Kong, not­with­stand­ing the lack of full de­moc­ra­ti­za­tion in its po­lit­i­cal sys­tem.

rule of law be­fore and af­ter 1997

In many ways, hong Kong’s Ba­sic law was de­signed to pre­serve the rule of law af­ter 1997, when hong Kong’s sovereignty was re­turned to China, by, for in­stance, ex­pressly stat­ing that the laws pre­vi­ously in force in hong Kong (namely, the com­mon law, rules of eq­uity, ordinances and cus­tom­ary law) should be main­tained, save for any that con­tra­vene the Ba­sic law.2

In hong Kong, the no­tions of le­gal­ity and equal­ity have been deeply en­trenched in the gov­ern­ment. all hong Kong cit­i­zens, re­gard­less of their race, re­li­gion and so­cial sta­tus, are sub­ject to the same laws, and no one — in­clud­ing the gov­ern­ment — can take any ac­tions that deprive a cit­i­zen’s rights un­less there is a le­gal jus­ti­fi­ca­tion. any ag­grieved per­son can re­sort to the courts for ad­ju­di­ca­tion. In sup­port, the Ba­sic

law guar­an­tees that hong Kong courts are in­de­pen­dent of the ex­ec­u­tive.3

the english po­lit­i­cal philoso­pher a.v. Dicey fa­mously listed three cru­cial el­e­ments for the rule of law, namely that: ev­ery per­son is pro­tected equally be­fore the law; no one is pun­ish­able with­out breach­ing the law; and in­di­vid­ual rights are pro­tected by le­gal prece­dence and not a con­sti­tu­tion. the first two el­e­ments have re­ceived wide­spread en­dorse­ment and are be­yond doubt. the last, how­ever, may not be ap­pli­ca­ble in hong Kong, as Dicey’s third el­e­ment orig­i­nated from the united King­dom, which does not have a writ­ten con­sti­tu­tion. un­like its former colo­nial sov­er­eign, hong Kong has a writ­ten con­sti­tu­tion in the Ba­sic law. sep­a­ra­tion of pow­ers has some­times been re­garded as im­por­tant to main­tain the rule of law. the par­a­digm model is that of the united states, where gov­ern­ment power has been clearly di­vided into ex­ec­u­tive, leg­isla­tive and ju­di­cial branches, with proper checks and bal­ances.

as a former Bri­tish colony with a po­lit­i­cal struc­ture more akin to the Bri­tish West­min­ster model, hong Kong has seen a cer­tain de­gree of fu­sion be­tween the ex­ec­u­tive and leg­isla­tive branches. For in­stance, the former colo­nial gover­nor, as the rep­re­sen­ta­tive of the Bri­tish monarch, was the head of both the gov­ern­ment and the leg­isla­tive Coun­cil, but the ju­di­ciary was clearly in­de­pen­dent even in colo­nial days. this tra­di­tion of ju­di­cial in­de­pen­dence has been pre­served and guar­an­teed by the Ba­sic law af­ter the 1997 han­dover. nowa­days, hong Kong’s po­lit­i­cal struc­ture has adopted some fea­tures of the us-style sep­a­ra­tion of pow­ers, with hong Kong’s leg­isla­tive Coun­cil com­pletely sep­a­rated from the gov­ern­ment.

I would ar­gue that such changes in hong Kong’s po­lit­i­cal sys­tem since the han­dover, cou­pled with the power of the stand­ing Com­mit­tee of the na­tional Peo­ple’s Congress (NPCSC) to in­ter­pret the Ba­sic law (see be­low), have given an un­for­tu­nate im­pres­sion that China is in­ter­fer­ing with hong Kong af­fairs and/or un­der­min­ing hong Kong’s rule of law. “One Coun­try, two sys­tems” is unique and un­prece­dented; there are no com­pa­ra­ble sys­tems in the world. One can­not sim­ply judge hong Kong’s sys­tem by com­par­ing it with other sov­er­eign states (as hong Kong is not an in­de­pen­dent coun­try).

I pre­fer to fo­cus on the known safe­guards to main­tain hong Kong’s rule of law that have been put in place since the han­dover. ar­ti­cle 2 of the Ba­sic law pre­serves hong Kong’s in­de­pen­dent ju­di­cial and fi­nal ad­ju­di­cat­ing power; ar­ti­cle 19 pro­vides that hong Kong shall be vested with ju­di­cial in­de­pen­dence; and ar­ti­cle 85 re­quires hong Kong courts to op­er­ate in­de­pen­dently, free from any in­ter­fer­ence. In ad­di­tion to these, the Ba­sic law de­votes an en­tire chap­ter to protecting var­i­ous fun­da­men­tal hu­man rights, in­cor­po­rat­ing the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights.4

the ju­di­cial sys­tem un­der ‘ONE Coun­try, two sys­tems’

un­der the Ba­sic law, hong Kong es­tab­lished its own Court of Fi­nal ap­peal (CFA) on July 1, 1997.5 the CFA has an un­com­mon com­po­si­tion in that it is made up of five judges, with four per­ma­nent lo­cal judges, and a non-per­ma­nent over­seas judge se­lected from a panel of judges from other com­mon-law ju­ris­dic­tions. another unique fea­ture of hong Kong’s ju­di­cial sys­tem is that un­der the Ba­sic law, the NPCSC has the ple­nary power to in­ter­pret the Ba­sic law and any in­ter­pre­ta­tion is bind­ing on the courts in hong Kong.6 the CFA has rec­og­nized the npcsc’s author­ity in the case of Lau Kong Yung and Oth­ers v The Direc­tor of Im­mi­gra­tion.7

un­der the Ba­sic law, hong Kong courts are au­tho­rized to in­ter­pret it. But un­der ar­ti­cle 158,

hong Kong courts have the duty to re­fer the in­ter­pre­ta­tion of ar­ti­cles con­cern­ing is­sues of na­tional de­fense, for­eign pol­icy and the re­la­tion­ship be­tween the Cen­tral Gov­ern­ment and hong Kong to the NPCSC. since 1997, the NPCSC has is­sued five in­ter­pre­ta­tions. From a com­mon-law view­point, such an in­ter­pre­ta­tion of law by a leg­isla­tive body (the NPCSC is the stand­ing com­mit­tee of China’s par­lia­ment) over­rid­ing hong Kong judg­ments may seem to have an ad­verse ef­fect on ju­di­cial in­de­pen­dence in hong Kong. how­ever, the npcsc’s power to in­ter­pret is com­pletely le­gal, valid and bind­ing un­der hong Kong’s unique con­sti­tu­tional or­der. I must also add that such in­ter­pre­ta­tions have no retroac­tive ap­pli­ca­tion what­so­ever, and do not af­fect pre­vi­ously de­cided cases.8

is the rule of law be­ing un­der­mined?

In 2017, when the Court of ap­peal im­posed cus­to­dial sen­tences on three stu­dent lead­ers of the Oc­cupy Cen­tral move­ment, many in­ter­na­tional com­men­taries billed it a se­ri­ous threat to the rule of law and ac­cused the hong Kong gov­ern­ment of a po­lit­i­cally mo­ti­vated con­vic­tion.9 un­for­tu­nately, this view, rightly or wrongly, is also shared by many lo­cal cit­i­zens. how­ever, if one reads the Court of ap­peal judg­ment care­fully, one can see that the ra­tio­nale be­hind the con­vic­tion was the de­fen­dants’ un­law­ful acts and not their po­lit­i­cal be­liefs. the de­fen­dants were sen­tenced not be­cause they ex­er­cised their law­ful rights to demon­strate, as­sem­ble, or free­dom of speech, but be­cause they had acted in con­tra­ven­tion of the law. Cit­ing this Court of ap­peal judg­ment to ar­gue that China is un­der­min­ing hong Kong’s rule of law is un­fair. (the case sub­se­quently went to the CFA, which ear­lier this year struck down the prison sen­tences handed to the three ac­tivists.)


lord Bing­ham, a former uk lord Chief Jus­tice, once sug­gested that the core of the rule of law is that “all per­sons and au­thor­i­ties … should be bound by and en­ti­tled to the ben­e­fit of law pub­licly and prospec­tively pro­mul­gated and pub­licly ad­min­is­tered in the courts.”10 his sug­ges­tion is still ap­pli­ca­ble to hong Kong to­day. In the lat­est Rule of law In­dex pub­lished by the World Jus­tice Re­port,11 hong Kong has once again been ranked a re­spectable 16th in the world, ahead of France (18th), the us (19th) and main­land China (75th). the rank­ing was com­piled through an as­sess­ment of 44 dif­fer­ent in­di­ca­tors un­der eight mea­sure­ments, in­clud­ing cor­rup­tion, fun­da­men­tal rights, or­der and se­cu­rity, civil jus­tice and crim­i­nal jus­tice. It is note­wor­thy that for the fun­da­men­tal rights cat­e­gory (which mea­sures a coun­try’s equal pro­tec­tion, free­dom of opin­ion and ex­pres­sion and other civil rights), hong Kong came in 29th, an im­prove­ment of two places from the pre­vi­ous re­port. the in­dex seems to sup­port my ar­gu­ment that hong Kong’s rule of law has not been un­der­mined. hong Kong’s des­tiny is in­ex­tri­ca­bly linked to that of China and the sovereignty of China must al­ways be fully re­spected, but to me, re­spect­ing China’s sovereignty and main­tain­ing the rule of law in hong Kong are not mu­tu­ally ex­clu­sive, as some may have sug­gested. Chan Chak-ming is a re­search fel­low at the hong Kong pol­icy re­search in­sti­tute/hong Kong Vi­sion, and prac­tices law in hong Kong.

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