HK’s continued success depends on rule of law

The rule of law remains the cornerstone of Hong Kong’s status as an international financial, trade and logistics center as well as a center for international legal and dispute-resolution services in the Asia-Pacific region. In the full implementation of “one country, two systems” and the Basic Law, Hong Kong’s rule-of-law ranking has always been at the forefront of the international community, which proves that Hong Kong’s rule of law has a solid foundation. After the enactment and implementation of the National Security Law for Hong Kong, Hong Kong restored social order and security, and the rule of law in Hong Kong has been further consolidated. The rule of law is a long-term and unremitting subject that needs to be evaluated in a timely manner according to social development.

The importance of the rule of law in modern society has been reiterated on various international forums. This is in line with Goal 16 of the UN’s Sustainable Development Goals, to promote just, peaceful and inclusive societies. More specifically, Target 16.3 is defined to “promote the rule of law at the national and international levels and ensure equal access to justice for all”. This target includes 1) a proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms; and 2) unsentenced detainees as a proportion of the overall prison population.

The concept of rule of law has been defined by numerous judges and scholars, particularly the chief justices of the Hong Kong Judiciary. Former chief justice Andrew Li Kwok-nang identifies three overarching principles under the rule of law. First, under the rule of law, everyone — namely, those who govern and those who are governed — is subject to the same laws; second, disputes between citizens and disputes between citizen and government are resolved impartially by an independent judiciary; and third, the rule of law involves the effective protection of human rights. In 2019, then-chief justice Geoffrey Ma Tao-li also listed six indicators of the rule of law in terms of judicial independence, including transparency of the legal system, access to the outcome of court proceedings, transparency of reasoning of judicial decisions, an independent system of judge appointments, access to justice, and views of the legal profession. Chief Justice Andrew Cheung Kui-nung affirmed at the Rule of Law Signature Engagement Event in 2021 that Hong Kong is a society that is governed by the rule of law, in the sense that Hong Kong is subject to the laws made publicly and administered openly by the courts, which apply the laws equally to all people and authorities within the jurisdiction.

However, the international community has failed to come up with a uniform definition for the rule of law. The underlying value of the rule of law may vary depending on the ways we define the concept; more difficult is the assessment of the rule of law in practice. Existing literature on the rule of law generally covers three areas: how the law is promulgated, how the law is enforced, and how the law is applied in the legal processes. Four principles are identified to define the rule of law: a) the laws are transparent, fair, stable, and protect fundamental rights; b) the process by which the laws are enacted, administered and enforced is accessible, fair and efficient; c) the government and officials are accountable under the law; and d) justice is delivered by competent and independent entities.

Although the overarching principle of the rule of law is to some extent clear — which mainly revolves around equality before the law, an independent judiciary and the protection of human rights — a reliable measurement of the rule of law has long been subject to scholarly debate. The indicators chosen and the variety in the sources of data differ across various international ranking reports on the rule of law.

At the moment, prominent and influential rule of law indexes include the following four: the World Bank’s Worldwide Governance project (GovData 360), the Heritage Rule of Law by the Heritage Foundation, Freedom House Indicators, and the World Justice Project Rule of Law Index.

In line with the existing projects, three major areas are categorized to assess the rule of law: law enforcement, judiciary, and corrections. It can be observed that the indicators chosen and the source of data varies among different ranking reports, but these data largely rely on subjective elements, such as perception-based general public surveys, selective expert polls, and legislative reviews. It would be most meaningful to assess the rule of law through the collection of objective data. There is a need to explore the value of relevant data and strengthen the correlation between data and indexes.

The rule-of-law database of Hong Kong was launched on Nov 5, 2021, as one of the important projects under the Vision 2030: Rule of Law initiative. It aims to provide a thorough understanding on how the rule of law has been practiced in Hong Kong without excessively relying on external databases.

The rule-of-law assessment is not easy work, requiring serious consideration of its target, assessment methods and rational framework. The assessment methods and the level of data governance should be regularly updated to keep the index up to date. Through continuous comprehensive research and refinement of theories and their application in practice, we can gradually improve the theoretical basis and the practicality of the rule-of-law index assessment.

Hong Kong’s continual success and prosperity as an international financial center hinges on the rule of law. The maintenance of Hong Kong’s long-term stability relies heavily on adhering to and improving “one country, two systems”, maintaining the constitutional order of Hong Kong as determined by China’s Constitution and the Basic Law of the Hong Kong Special Administrative Region, safeguarding national sovereignty and security, and promoting the further development and consolidation of the rule of law in Hong Kong society. An objective assessment of the rule of law based on available data will be vital to the successful implementation of the rule of law. We will need to continue our research and contribute to the maintenance of the rule of law in Hong Kong.

Yun Zhao is Henry Cheng Professor in International Law, The University of Hong Kong; Adrian Lai is a barrister-atlaw; and Ronald Sum and Edward Liu are solicitors and partners of international law firms. All four are members of the International Legal and Dispute Resolution Services Expert Group of the HKSAR government.

The views do not necessarily reflect those of China Daily.