Rule of Law in Hong Kong

THE RULE OF LAW IN HONG KONG1

Richard Cullen

Email: [email protected]

Professor Monash University

Melbourne Australia

1 This work relies on some arguments drawn from previous research and writing including, in Part 3, Forging an Identity: The Hong Kong Special Administrative Region (unpublished manuscript).

Civic Exchange is a non-profit organisation that helps to improve policy and decision-making through research and analysis. The views expressed in this report are those of the author and do not necessarily represent the opinions of Civic Exchange.

ACKNOWLEDGEMENTS

This preparation of this paper has been supported by a research grant under the Civic Exchange, Democracy 2004 project. It has also benefited from discussion and input at a seminar (based on a draft of the paper) conducted in the Faculty of Law at the University of Hong Kong in June 2005. I would like, especially, to thank Yip Yan-yan of Civic Exchange. Thanks are due, too, to Christine Loh of Civic Exchange, Chan Siu-kuen and Fu Hua-ling. Civic Exchange would like to thank Peter and Nancy Thompson for their generous grant to pursue this research. The views expressed remain those of the author. (Note: All web-based references were operative at the time of writing. The author has retained a hard copy file of relevant web-based materials.)

TABLE OF CONTENTS

1.0 INTRODUCTION 1 2.0 THE RULE OF LAW – AN OVERVIEW 1

2.1 Historical Development 1 2.2 Contemporary Understanding 3 2.3 Rule of Law Reality 6

3.0 THE RULE OF LAW – HONG KONG AND CHINA 8 3.1 Hong Kong and the Rule of Law 8 3.2 China and the Rule of Law 12 3.3 The Basic Law and the Rule of Law 16

4.0 THE FUTURE OF THE RULE OF LAW IN HONG KONG 21 4.1 Calibrating the Rule of Law 21 4.2 Democratization in Hong Kong 23 4.3 Law-making in Hong Kong 23 4.4 Article 158 and the Rule of Law 25 4.5 The Rule of Law Debate 27

5.0 CONCLUSION 28 GLOSSARY OF ABBREVIATIONS USED 34

The Rule of Law in Hong Kong

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1.0 INTRODUCTION

There is considerable disagreement about the meaning of the term “the Rule of Law.” 2 There is, for example, disagreement about whether the term relates to outcomes or to process3 and whether the Rule of Law is based mainly on natural law or positive law principles.4 There is also disagreement (about the detailed meaning of the term) between the Common Law World (CLW) – of which Hong Kong is part – and parts of the world which have a different political-legal tradition such as the Mainland of the People’s Republic of China (PRC). 5 Notwithstanding these differences of opinion, there is quite wide agreement within the CLW – and often beyond – on the basic requirements for any political-legal system to make a credible claim that the Rule of Law operates within that system.6

This paper assumes that we do have a sound collective understanding of the core elements of what we mean when we refer to the Rule of Law. The paper explains, in Part 2, the origins of this concept. It also reviews key elements of the Rule of Law as it is widely understood today. In Part 3, I note the impact and broad understanding of the Rule of Law within the Hong Kong Special Administrative Region (HKSAR) and the Mainland of the PRC. Part 4 considers the future of the Rule of Law in the HKSAR. Part 5 is the conclusion.

This paper has two main aims: to make a considered contribution to the discussion about the Rule of Law in Hong Kong; and to stimulate further debate on this topic.

2.0 THE RULE OF LAW – AN OVERVIEW 2.1 Historical Development

The Rule of Law, as a concept, has developed over a very long period of time. The Ancient Greeks considered at length the problem of how to produce virtuous citizens and a virtuous society. There was some theorizing by Plato about the advantages of making the Ruler (however titled – e.g.: Prince, King, Emperor) subject to law.7 Various ancient Eurasian civilizations had detailed legal codes – so there was plenty of law, potentially, to which a Ruler could be made subject. The more popular and enduring view over many centuries was, however, that the Ruler was above the law. If the Ruler answered to anyone, then it was to God.8 Rulers (and their friends)

2 See, for example, Kleinfeld-Belton, Rachel, Competing Definitions of the Rule of Law, Carnegie Papers at: http://www.carnegieendowment.org/files/CP55.Belton.FINAL.pdf. See, also: Li, Bo, What is Rule of Law? at: http://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htm; Peerenboom, Randall, A Government of Laws, Democracy, Rule of Law and Administrative Law reform in the PRC (2003) 12 Journal of Contemporary China, 45 (Peerenboom-A); and Peerenboom, Randall, China’s Long March Toward Rule of Law (Cambridge University Press, Cambridge, 2002) (Peerenboom-B). 3 Kleinfeld-Belton, Ibid. 4 Peerenboom-B, op. cit. note 2, 127. 5 Peerenboom-A, op. cit. note 2, 50-54. 6 Ibid., 51. 7 See, Thomas, Melissa, The Rule of Law in Western Thought, at: http://www1.worldbank.org/publicsector/legal/western.htm. 8 Ibid.


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devoted significant energy to explaining that they (the Rulers) had been appointed by God in some way.9 This political theory (separately coined) was popular in ancient China as well as in other ancient civilizations.10 Sometimes Rulers resolved this very basic “answerability” or “legitimacy” problem by explaining to their subjects that they were God.11 Although the Rule of Law concept is not a pure and simple creation of the Common Law, it was in Common Law England that the political and economic circumstances came to pass which gave rise to the comparatively rapid development of the theory over a period of around 200 years commencing in the 17th century.12 In the aftermath of the English Civil War and the final vanquishing of the absolutist Stuart monarchy, the Bill of Rights Act of 1689 was passed. The key Rule of Law features of this Act of Parliament were that: Kings could no longer suspend or dispense with laws; Kings were obliged to acknowledge the privileges of Parliament; and Kings could not impose taxation without approval from Parliament. Power shifted decisively, at this time, from the Monarchy to Parliament.13 The Rule of Law concept provided both justification for this change and the means to lock the change into place. The disastrous loss of the American Colonies by George III about a century after the Bill of Rights Act was passed provided the pretext for the commencement of the next significant shift of power from the Monarchy to Parliament – and the creation of the “figurehead” Constitutional Monarchy we have today in the UK.14 The Rule of Law concept is widely regarded as having been encapsulated as a doctrine of the Common Law by the English Lawyer, A. V. Dicey in 1885.15 Dicey drew on the ideas of other scholars, including Professor W.E. Hearn of the University of Melbourne in crafting his formulation.16 Originally the concept had been applied

9 Ibid. 10 In the Chinese tradition, the concept is best captured in the familiar term, the “Mandate of Heaven.” This concept was used to justify the transfer of power from an Emperor (or Dynasty) who, through lack of virtue, had forfeited the Mandate, which then passed to the conqueror who established the next Dynasty. The creation of the concept is usually attributed to the Confucian philosopher Mencius (371-289 B.C.). See, O’Neill, Hugh B. Companion to Chinese History (Facts of File, New York, 1987) 187. 11 The later Roman Empire, for example, produced a number of Emperors who were worshiped as Gods, see, Roman Gods, at: http://www.allabouthistory.org/roman-gods.htm. Until Japan’s defeat in World War II, Japanese Emperors (including the war time Emperor Hirohito (1901-1989)) were also revered as Gods. See, Hirohito, at: http://www.ramskov.nu/krih/ww2/personer/hirohito.htm. 12 Kleinfeld-Belton, op. cit. note 2, 8. An earlier, key turning point was the signing of the Magna Carta, by King John, in England, in 1215. This was, primarily, a “Barons’ Charter.” It was King John’s Barons who demanded this written, legal protection from arbitrary Royal decisions and it was they whom it protected most of all. The political ethics embodied in the Magna Carta (which in certain circumstances unambiguously subjected the King for the first time to the application law of the land) established foundations for building the basic doctrines of the Rule of Law in later centuries, however. See, further: http://www.britannia.com/history/magna2.html: and http://www.archives.gov/exhibit_hall/featured_documents/magna_carta/. See also Anderson, Benedict, Imagined Communities (Verso, London, 1991, 118). 13 Ibid., Kleinfeld-Belton, 9. 14 Apart from losing the American colonies during the reign of George III, England saw its national debt increase almost sixfold to more than 800 million pounds sterling between 1760 and 1820 (George III, Chambers Biographical Dictionary (Chambers Harrap, Edinburgh, 1997) 727). The erosion of Royal power during the latter part of the reign of George III continued under George IV. See: http://www.answers.com/topic/george-iv-of-the-united-kingdom. 15 Dicey, Albert Venn, An Introduction to the Law of the Study of the Constitution (1885), at: http://www.constitution.org/cmt/avd/law_con.htm. 16 See, Spigelman, J.J., Foundations of Administrative Law – The Spann Oration, at: http://www.lawlink.nsw.gov.au/sc%5Csc.nsf/pages/cj_070998.


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principally to mediate the relationship between the Monarch and Parliament. Now it was also was being applied – in the wake of the massive social, economic and political changes wrought by the Industrial Revolution – to mediate the relationship between the Government and its citizens. Dicey’s blueprint provided that:

• No person is to be punished other than for a breach of a properly established law which breach had to be demonstrated at a hearing before the ordinary courts of the land; • No person is above or beyond the law regardless of their rank and no persons are to be exempted from a duty to obey the law which governs citizens of the realm; and • The general principles of the [UK] Constitution are to be found through judicial decisions determining the rights of private persons in particular cases brought before the courts.17

In Dicey’s time, this formulation was significantly driven by a concern to protect the rights of citizens of property – and a colonizing Britain – rather than rights of citizens generally. But the principles expounded lent themselves to general application. Over time, in many jurisdictions, these general rules have been applied for the benefit of ever widening circles of a given population.18

2.2 Contemporary Understanding

Rachel Kleinfeld-Belton offers a comparatively complex definition of what the term Rule of Law encompasses. She says, first, that:

[T]he Rule of Law is not a single unified good but is composed of five separate, socially desirable goods, or ends: (1) a government bound by law, (2) equality before the law, (3) law and order, (4) predictable and efficient rulings, and (5) human rights. These ends are distinct, likely to meet different types of resistance and support within countries undergoing reform, and often in tension with one another in practice.19

She also notes that many “practitioners of rule-of-law development programs” tend to stress the institutional attributes which are seen as necessary to establish the Rule of Law, such as comprehensive laws, a good court system and adequately trained law enforcement agencies. She is critical of this approach, arguing that many failures to develop effective Rule of Law regimes stem from a misconceived pre-occupation with institutional factors. Her primary argument is that moving to an “ends-based” definition would bolster all efforts design to introduce (or presumably, maintain) Rule of Law reform. 20

17 Constitutional Keywords, at: http://www.law.ualberta.ca/ccskeywords/rule_law.html. 18 See, Ghai, Yash, Hong Kong’s New Constitutional Order (2nd Edition) (Hong Kong University Press, Hong Kong, 1999) 2; and, Ghai, Yash and Kohut, John, A World in Transition, at: http://www.unesco.org/courier/1999_11/uk/dossier/txt01.htm. 19 Kleinfeld-Belton, op. cit. note 2, 3. 20 Ibid.


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Bo Li argues, more minimally, that the Rule of Law: (a) places limits on the arbitrary or abusive use of power by government; (b) demands equality before the law so that (quoting Dicey) “everyman, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;” and (c) demands due process, or a formally rational, legal system.21

Other scholars take yet further, often differing, views.22 There is scope to debate the detail of what the Rule of Law means continually. Randall Peerenboom deals with this hazard well, however, when he argues that:

Debates about the meaning of the Rule of Law should not blind us … to a broad consensus as to its core meaning and essential elements. At its most basic, Rule of Law refers to a system in which law imposes meaningful limits on the state and individual members of the ruling elite, as captured in a notion of a government of laws, supremacy of law and equality of all before the law.23

The essence of the Rule of Law can be stated in the following terms – relying primarily on Dicey’s formulation:

• Government must always be subject to the law and never above it. • All persons must be treated equally before the law regardless of status. • Laws must be fairly and transparently made. • Everyone subject to the application of the law is entitled to due process – that is

the fair and proper application of the law.

21 Li, op. cit. note 2. 22 See, for example: Raz, Joseph, The Rule of Law and its Virtue (1997) 93 Law Quarterly Review, 195; Carothers, Thomas, The Rule of Law Revival (1998) 77 Foreign Affairs, 95; Fuller, Lon L., The Morality of Law (Yale University Pres, New Haven, 1969); Allan, T. R. S., Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2003); Hart, H.L.A., The Concept of Law (2nd ed.) (Oxford University Press, New York, 1994); Finnis, John, Natural Law and Natural Rights (Oxford University Press, Oxford, 2001); Rawls, John, A Theory of Justice (Oxford University Press, Oxford, 1999); Dworkin, Ronald, Law’s Empire (Hart, Oxford, 1998); Radin, Margaret Jane, Reconsidering the Rule of Law (1989) 69 Boston University Law Review, 781; Fletcher, George P., Basic Concepts of Legal Thought (Oxford University Press, Oxford, 1996); de Soto, Hernando, The Other Path: The Invisible Revolution in the Third World (Harper & Row, New York, 1989); de Soto, Hernando, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (Basic Books, New York, 2000); Thompson, E.P. Whigs and Hunters: The Origin of the Black Act (Pantheon Books, New York, 1975); Fallon, Richard H., “The Rule of Law” as a Concept in Constitutional Discourse (1997) 97, Columbia Law Review, 1; Tsang, Steve (ed.) Judicial Independence and the Rule of Law in Hong Kong (Palgrave, Basingstoke, 2001); and Schor, Miguel, Rule of Law in (Clark (ed.)) Encyclopedia of Law and Society: American and Global Perspectives, at: http://www.law.suffolk.edu/faculty/addinfo/schor/TheRuleofLaw,Clark.doc. See, also, Hutchinson, Allan C. and Monahan, Patrick (eds.) The Rule of Law: Ideal or Ideology (Carswell, Toronto, 1987). In this volume Judith Shklar has questioned whether the Rule of Law “may well have become just another of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians” (Shklar, Judith, Political Theory and the Rule of Law in Allan C. and Monahan, Patrick (eds.) The Rule of Law: Ideal or Ideology (Carswell, Toronto, 1987). 23 Peerenboom-A, op. cit. note 2, 51. It is hard, too, to argue with eminent British (left-wing) historian E.P. Thompson who wrote that the Rule of Law is a “cultural achievement of universal significance” (see, Thompson, ibid., 265).


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Based on the “thin” Rule of Law as explained by Peerenboom, we can expand on this basic definition, by noting that for the Rule of Law to apply:

• All laws must be publicly and readily accessible. • Laws must be prospective (no retrospective laws), consistent and stable. • Laws must be generally acceptable to those to whom they apply.24

Institutional arrangements also need to be established for any Rule of Law system to operate well. Kleinfeld-Belton – who stresses the need always to bear outcomes in mind when conceptualizing our understanding of the Rule of Law – concedes this, too, is needed.25 These are typically identified as including: (a) an adequately staffed and trained, independent judiciary; (b) properly staffed and trained law enforcement agencies; and (c) an independent, properly trained, legal profession. Peerenboom’s “thick” Rule of Law establishes a number of additional normative prescriptions related to political morality which (coming from a Western Liberal context) usually stipulate a need for democratic government, a market economy and structured protections for individual, political and civil rights. 26 This elaboration meshes well with the “human rights” element in Kleinfeld-Belton’s list of ends-based, desirable, Rule of Law “goods.” She also stresses the need for a successful Rule of Law regime to generate genuine “law and order.” Her argument is that a failure to treat law and order as a desirable outcome (rather than as just a matter of institutional reform) seriously risks undermining any emerging (or existing) Rule of Law regime. The risk comes, especially from organized crime and from the military (alas, too often combined). 27 Probably the most compelling evidence for the soundness of this view can be seen, today, in the former Soviet Union. The way in which organized crime has permeated most levels of government and the operation of the general economy (since the collapse of the One Party State in 1989) has been a major factor enfeebling the establishment of both democracy and the Rule of Law in the post-Soviet, Russian Federation.28 I would add one further critical (primarily institutional) building block to the inventory above – a notable level of freedom of expression coupled with freedom of the press. Hong Kong remains probably the best example in the world of a largely successful, comparatively thin, Rule of Law regime. Hong Kong’s lack of democratic underpinnings (described below) means it lacks a truly thick Rule of Law system,

24 Peerenboom-A, ibid., 51. Peerenboom draws a distinction between “thin” and “thick” versions of the Rule of Law. His arguments in this regard are most completely set out in, Peerenboom, Randall, China’s Long March Towards Rule of Law (Cambridge University Press, Cambridge, 2002). See also the following review of this book: Fu Hua-ling, Review: China’s Long March Towards the Rule of Law (2004) 34 Hong Kong Law Journal, 205. Briefly, a thin Rule of Law regime is characterized by: clear procedural rules for law-making; publicly promulgated laws; no retrospective laws; laws made by a duly authorized law-making entity; relatively clear, consistent and stable laws; and fairly enforced laws. A thick Rule of Law regime enjoys important additional (political morality) features, typically including: democratic government; advanced protection for human rights and certain stipulations about property and economic system rights. 25 Kleinfeld-Benson, op. cit. note 2, 28. 26 Peerenboom-A, op. cit. note 2, 51-52. 27 Kleinfeld-Belton, op. cit. note 2, 11-12. 28 See, Lindberg, Richard and Markovic, Vesna, Organized Crime Outlook in the New Russia, at: http://www.search-international.com/Articles/crime/russiacrime.htm. The authoritarian tradition of both Imperial Russia and the Communist USSR is another important, obstructing factor.


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based on the taxonomy outlined above. Hong Kong’s independent judiciary has been vital in building this Rule of Law regime. But having what is still one of the more free media sectors in East Asia has greatly strengthened the system.29

It is worth noting, too, that, social scientists (rather than just lawyers) are playing a major role in theorizing about and promoting the Rule of Law. A prominent example is the economist, Hernando de Soto who has, for many years, purposefully argued in favour of the role of properly functioning legal systems in tackling Third World developmental problems.30

The ultimate purpose of a Western Liberal Rule of Law (or constitutional) system, as Ghai notes, is to limit government power and set down limits on how it may be exercised in order to leave room for private, civil society to flourish.31

2.3 Rule of Law Reality

With all important social breakthroughs the law of unexpected consequences applies. As an analogy, electricity is a wonderful invention, something we could not do without today – but it does kill people accidentally and it can start unwanted fires. It is somewhat similar – though normally less lethal – with the Rule of Law. Two examples, one from Australia and another from Hong Kong illustrate the point. In Canberra, Australia, in 1997, a young man by the name of Joe Cinque was killed by his girlfriend, Anu Singh, when she administered a massive dose of Rohypnol and heroin to him. Anu Singh sat and watched as, over a period of almost 36 hours, Joe Cinque died in their Canberra flat. Ms Singh had told a number of friends that she intended to kill Joe Cinque some time before she did so. Anu Singh was, at her option, tried for murder by judge alone (rather than by judge and jury). The single judge eventually found her not guilty of murder on the grounds of diminished

29 See, Chen, Zhiwu, Press Freedom Essential for Hong Kong’s Success, at: http://yaleglobal.yale.edu/display.article?id=2010. Professor Chen, who is Professor of Finance at the Yale School of Management, argues in this article that the Rule of Law and press freedom are highly correlated. (Freedom of expression and press freedom play a similar role in jurisdictions with a thick, democracy-backed, Rule of Law regime, of course.) A similar point is made by Francis Fukuyama when he talks about the democracy-transparency supporting role of independent media outlets in Ukraine and certain other former Soviet-bloc countries during elections held over the last few years. See, Fukuyama, Francis, Do We Really Know How To Promote Democracy, Presentation to New York Democracy Forum, 24 May 2005, at: http://www.ned.org/nydf/nydf.html. There is real concern that the media in the HKSAR is less free today than it was in the lead up to 1997. There is also, now, a greater concentration of ownership. Since the democratisation of politics in Taiwan, the media there has become markedly more open compared to Hong Kong in dealing with a range of issues (see, Borton, James, Media Tycoon and Anti-Beijing Typhoon, http://www.atimes.com/atimes/China/FK11Ad01.html). Hong Kong retains a greater diversity of media outlets, especially in print, than almost all cities of comparable size in the West, however, and numbers of HKSAR media outlets remain alert to and engaged with issues like the Rule of Law. 30 See: de Soto, Hernando, The Other Path: The Invisible Revolution in the Third World (Harper &Row, New York, 1989); and de Soto, Hernando, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (Basic Books, New York, 2000). 31 Ghai, op. cit. note 18, 83. Note, too, the detailed discussions (which began in 1999) on the nature of the Rule of Law in Asia (including in Hong Kong), organized by the Washington D.C. based, Mansfield Foundation. For further details see The Mansfield Dialogues on the Rule of Law, at: http://www.mansfieldfdn.org/programs/rol_dialogues.htm.


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responsibility. She was sentenced to 10 years jail for manslaughter. She served four years only, during which time she completed, in prison, the law degree which she was studying at the time of the killing and a Masters in Criminology. She is now free and, it seems, in good mental health. The parents of Joe Cinque remain devastated by the death of their son and by their firm belief that Anu Singh was fully responsible for actions when she killed their son.32

In 2004, the HKSAR Government gave its blessing to the “Link” Real Estate Investment Trust (REIT). This initiative bundled together more than HK$20 billion of shopping malls, parking spaces and related assets owned by the HKSAR Housing Authority for privatization (and listing) via the Link REIT. The initial public offering was massively over subscribed. There was enormous interest in the offering and widespread dismay when the listing had to be cancelled as a result of a request for judicial review of the very validity of the offering. Two aged tenants of the Housing Authority sought this review of the grounds that the listing was beyond the power of the Housing Authority and in breach of the Housing Authority’s obligations to its tenants. Hong Kong’s highest court, the Court of Final Appeal, refused to be rushed by the HKSAR Government lawyers, into a hurried appeal process. The listing of the Link REIT had to be postponed. An Editorial in the South China Morning Post on 18 December 2004, put it this way:

The top court’s ruling yesterday on the Link REIT listing is not a popular decision. But it is strictly in accordance with the Rule of Law – and therefore good for Hong Kong. There are undoubtedly unattractive consequences that flow from it. The listing has been placed in jeopardy the hopes of half a million investors have been dampened and the Housing Authority is facing losses it can ill afford. But the judges did what they are paid to do. They applied the law fairly and fearlessly. It is in cases such as this that the Rule of Law is really put to the test.33

Society’s hands are not, of course, tied by the judiciary – especially by a judgment at first instance. If the decision is one made at trial, then the dissatisfied side will usually be able to appeal an unacceptable decision. And, in appropriate cases, the legislature of a given jurisdiction is normally free to pass whatever laws are required (subject to any constitutional or bill of rights provisions) to override, for future purposes, judicial decisions which are seen to be unsound. But, in order to maintain that bedrock element of a Rule of Law regime – an independent judiciary – society has to accept and live with certain decisions of the judiciary (provided they are not tainted by corruption) no matter how bewildering or inconvenient or even, occasionally, outrageous they may seem.34

32 The full particulars of the case are explained in a comprehensive interview (of Anu Singh and Maria and Nino Cinque (the parents of Joe Cinque)) by a noted Australian radio broadcaster, Phillip Adams. See transcript at: http://www.abc.net.au/rn/talks/lnl/s1205918.htm. See, also, Garner, Helen, Joe Cinque’s Consolation (Pan Macmillan, Sydney, 2004). 33 Editorial: Justice upheld in Link ruling, South China Morning Post, 18 December 2004, A10. See, also, Jonsson, Anette, Where the reit went wrong, South China Morning Post, 18 December 2004, B1; Moir, Jane, Link mess was a backlash waiting to happen, South China Morning Post, 18 December 2004, B1; and Hui, Sylvia, Tung “came close to contempt” Weekend Standard, 18 December 2005, A5. 34 Judicial independence is discussed in more detail below. For further discussion of some dysfunctional aspects of the way the Rule of Law operates in the US, see, Thomas, Jeffrey E., Legal Culture and “The Practice”: A Post-Modern Depiction of Rule Of Law in America (2001) 48 UCLA Law Review, 1495.


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3.0 THE RULE OF LAW – HONG KONG AND CHINA 3.1 Hong Kong and the Rule of Law

The early period of British rule in Hong Kong was marked by a degree of uncertainty about exactly which legal system (British colonial or Chinese) should apply to which residents (Chinese and non-Chinese) and who (British or Chinese judicial officials) should apply any relevant, chosen law. Concern with maintaining law and order led the British to decide, early on, that they, the British, would be responsible for applying all law in the new colony. (This approach also helped to fend off any claims about remaining Chinese sovereignty in Hong Kong.) Chinese law was applied to Chinese Hong Kong residents in the area of civil (personal, family and property) law with British Common Law, at times modified to suit Hong Kong, normally applying in all other circumstances.35 The Rule of Law system applying during this era has been convincingly portrayed, however, as, “systematically biased against Chinese and other non-European defendants.”36 Peter Wesley-Smith describes the Rule of Law as being, throughout this period, “[a British] ideal more dramatically subverted than any other.”37

Hong Kong thus became heir to a strongly established Common Law legal system, based squarely on the Anglo legal tradition – but one which was seriously biased in the interests of the political and economic priorities of the British colonial system for many decades. Ghai argues, though, that the Hong Kong legal system eventually came to be based, with some imperfections, on the essential principles of the Common Law:

There was equality before the law. Individuals and groups aggrieved by a decision of a government official or public agency could go to the courts for redress. Courts could also review the legality of legislation and government policies.38

Arguably, the Chinese society where this doctrine too root was, in essence, receptive to this development. The building of a Rule of Law regime in Hong Kong can be said, using Albert Chen’s analysis, to have given an acceptable applied form to a Chinese tradition of concern about human rights embodied in Confucian values.39

35 Ghai, op. cit. note 18, 23-26. 36 Munn, Christopher, Anglo-China: Chinese People and British Rule in Hong Kong – 1841-1880 (Curzon Press, Richmond, 2001) 251. 37 Wesley-Smith, Peter, Book Review: Munn, Christopher, Anglo-China: Chinese People and British Rule in Hong Kong – 1841-18 (2003) (Jan.-Feb.) China Perspectives, 74. 38 Ibid., 24. Three years after the reversion of sovereignty, the official US view was that, despite controversy over the Right of Abode case and the Rule of Law (see further below), the Rule of Law was functioning well in Hong Kong, see: Bereuter, Doug, Eighth Report on the Hong Kong Transition, 2000, at: http://www.usconsulate.org.hk/ushk/htf/2000/080101.htm. 39 See, Chen, Albert H.Y., Chinese Cultural Tradition and Modern Human Rights, at: http://www.singapore-window.org/aihk1202.hftm.


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Fundamental to the establishment of the Rule in Hong Kong has been the creation of an independent judiciary whose task it is to interpret the meaning of the law.40 It is fair to say that Hong Kong has enjoyed a “separation (or balance) of powers” in that the judiciary has been established an arm of government which is genuinely detached, within Hong Kong’s political structure, from the executive and legislative arms of government.41 Other key institutional factors fostering the growth of the Rule of Law in Hong Kong include the well established and trained private legal profession, (providing legal advice to residents) and well trained government legal officials. A sound tradition of legal research and offshore and local legal training at university level have also helped.42

The Rule of Law has, in a way, assumed greater political and ideological importance in Hong Kong than in most other Common Law jurisdictions. To understand why this is so, we need to consider, in a little more detail, certain aspects of Hong Kong’s political and economic development under British rule.

Prior to World War II, the British had made no effort to introduce any level of democracy in Hong Kong. This was consistent with their approach, until then, across most of the “non-white” parts of the British Empire. After the defeat of Japan in 1945, the Civil War in China between Chiang Kai-Shek’s Kuomintang (KMT) and the Chinese Communist Party (CCP) led by Mao Zedong resumed. By 1949, the defeated KMT had retreated to the island of Taiwan. The new People’s Republic of China led by the CCP was proclaimed on October 1, 1949.

Although the People’s Liberation Army (of the CCP) was on the border with Hong Kong, by 1949 no attempt was made to invade. By 1950, China had entered the war on the Korean Peninsula on the side of North Korea. This made any near-term invasion of Hong Kong unlikely for several reasons. First, the limited resources of the new PRC were already stretched by the war in the north-east – and the British were, by now, well dug in, in Hong Kong. Next, the Korean War demonstrated the advantage to Beijing of having this British enclave in the south-west. Following the

40 See, Ghai, op. cit. note 18, 24. See, also, Chan, Johannes M.M., Judicial Independence: A Reply to the Comments of the Mainland Legal Experts on the Constitutional Jurisdiction of the Court of Final Appeal, in (Chan, Fu and Ghai (eds.) Hong Kong’s Constitutional Debate: Conflict over Interpretation (Hong Kong University Press, Hong Kong, 2000) 63. 41 The modern “separation of powers” doctrine traces back to Montesquieu (with the concept itself dating back to the time of Aristotle). Baron de Montesquieu, writing in 1748, thought that England – which divided power between the king (who enforced laws), Parliament (which made laws), and the judges of the English courts (who interpreted laws) – was a good model of how to separate powers. He thought it most important to create separate branches of government with equal but different powers. That way, the government would avoid placing too much power with one individual or group of individuals (see, http://www.rjgeib.com/thoughts/montesquieu/montesquieu-bio.html). The fact that Montesquieu chose England as an example is curious in one sense. As a matter of law, the UK has maintained to this day the situation – unknown elsewhere in the developed CLW – where superior, executive, legislative and judicial powers are all conferred on a single individual, the Lord Chancellor who is: the President of the (judicial) House of Lords; the Speaker of the (legislative) House of Lords and a Cabinet Minister (see, Burke, John, Osborn’s Concise Law Dictionary (6th ed.) (Sweet & Maxwell, London, 1976) 70). As a matter of practise, the UK does enjoy a separation of the judiciary from the executive and Parliament – sometimes described as a “balance of powers” (see, http://www.dca.gov.uk/consult/courts/discuss/004.htm). In a similar way Hong Kong can be said to have enjoyed a de facto separation - or balance - of powers during the latter period of British rule (see Ghai, op. cit note 18, 262-264). The Basic Law (see, further, below) has established a more formal separation of powers for the HKSAR (Ghai, ibid.). 42 Ghai, ibid., 24.


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outbreak of the Korean War, the Western powers placed an embargo on the export of strategic goods to the PRC. China was, nonetheless, able to obtain some important supplies through Hong Kong.43

Out of this experience grew a largely unspoken, mutual understanding between Beijing and London. The essence of this understanding was that, provided Hong Kong did not become any sort of strategic threat to the PRC, the British presence there would be tolerated pro tempore. The key elements of this modus vivendi, according to Norman Miners, included: no significant moves towards democracy in Hong Kong; no effective Taiwanese (that is, KMT) presence in Hong Kong; and no impediments to China participating in and profiting from the Hong Kong economy.44

Under this arrangement, Hong Kong enjoyed near continuous significant growth in prosperity for a period of five decades following the end of World War II. In 1945, Hong Kong’s per capita Gross Domestic Product (GDP) was, by some estimates, lower than that of India and Kenya.45 By 1992, Hong Kong’s per capita GDP had overtaken that of the UK. By 2004, Hong Kong was ranked at 23 in a global, “highest GDP per head” table, ahead of Canada and Australia.46 Wealth distribution in Hong Kong remains very uneven; significant poverty persists. But there is no denying that the city-state has materially transformed itself remarkably over the decades since 1945 from a war ravaged colony of less than 800,00047 to a leading international financial hub and regional service centre with a population of some 7 million.48

Despite the lack of democracy, Hong Kong was allowed, post World War II, to develop, under British rule, into the freest society in East Asia. The press and the media generally were able to flourish49 and, as we have noted, the Rule of Law, implemented primarily through an independent judiciary, put down deep roots. 50 Meanwhile the task of governing Hong Kong remained in the hands of a London appointed Governor working with a Civil Service notable for its very high level of political engagement.51

43 Miners, Norman, The Government and Politics of Hong Kong (5th ed.) (Oxford University Press, Hong Kong, 1991) 4. 44 Ibid, 6. 45 Bartholomew, James, The Welfare State Made Britain Poor. Extract from book at: http://www.moneyweek.com/article/593//the-welfare-state-made-britain-poor.html. 46 Pocket World in Figures 2005 (The Economist – Profile Books, London, 2004), 28. 47 See, http://www.demographia.com/db-hkhist.htm. 48 See, http://www.info.gov.hk/yearbook/2003/english/chapter04/04_01.html. 49 Bonnin, Michel, The Press in Hong Kong – Flourishing but Under Threat (1995) 1 (September) China Perpectives, 48. 50 See, Ghai, Yash, Praise is not enough South China Morning Post, 22 March 1998. See, also, Jones, Carol, Politics Postponed in (Jayasuriya (ed.)) Law, Capitalism and Power in Asia (Routledge, London, 1999). 51 An alternative meaning given for the term “bureaucracy” in the Chambers 21st Century Dictionary (Chamber, Edinburgh, 1996) is “a country governed by officials.” Hong Kong was, and still largely is, a bureaucracy in this sense. For further discussion of the structure and operation of Hong Kong’ system of government (with its, 18th century, George III, British ancestry) see, Loh, Christine and Cullen, Richard, Political Reform in Hong Kong (2005) 14, Journal of Contemporary China, 147.


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Politically, Hong Kong remained fairly stable over the decades after World War II. Early on, after the Cultural Revolution began in the Mainland in 1966, Hong Kong was rocked by an unprecedented level of rioting and violent politics for several years.52 This has been the exception to the rule, however.

Without question, the experience of rapid economic growth in post-war Hong Kong helped maintain stability. The Hong Kong Government also moved, from the 1970s onwards, to address community needs by major spending programs devoted, for example, to housing, infrastructure, health and hospitals and education and through an institutionalized consultation process.53 At the same time officials discouraged any moves towards democratic government. The unofficial agreement with the PRC mandated this and, perhaps even more importantly, Hong Kong business interests and the government itself preferred this.

It is this unusual political and economic history which helps explain the special political and ideological importance of the Rule of Law in Hong Kong. Ghai puts it this way:

The Rule of Law became a powerful means to legitimize colonial rule, particularly as the ideology of a democratic and accountable government could not be pressed into service. The Rule of Law so selectively conceived was especially congenial to business, the raison d’etre of Hong Kong.54

One particular government initiative conveyed a widespread understanding to the “grass roots” of what the Rule of Law could mean in practical terms; this was the establishment of the Independent Commission Against Corruption (ICAC) in 1974. Within a year or so of the ICAC commencing operations, major inroads were made into the massive level of corruption prevailing in the colony. The Hong Kong Police Force (previously regarded as “the best police force money could buy”) was brought to account with numbers of corrupt police going to jail. In particular, the ICAC was successful in extraditing and prosecuting Chief Superintendent Godber who was jailed for four years in 1975.55 Ever since the ICAC broke the back of endemic corruption in Hong Kong, the city-state has enjoyed an enviable reputation for being a “clean” city. In 2004, Hong Kong ranked equal 14th (with Austria) in a world-wide Corruption Perceptions Index, ahead of, for example, the USA, France, Germany and Japan and just behind Canada and the UK.56

One other intriguing aspect of Hong Kong’s profile is its well established, international personality. Hong Kong has never been a separate State recognised in International Law. But, as Roda Mushkat has explained, Hong Kong had, prior to the handover “stately attributes” (which have been retained). Hong Kong has been an autonomous international actor for many years. This international personality provides the HKSAR

52 Wong, Cheuk Yin, The 1967 Leftist Riots and Regime Legitimacy in Hong Kong at http://www.hku.hk/hkcsp/ccex/ehkcss01/issue3_ar_lawrence_wong.htm. 53 See, Ghai, op. cit note 18, 29-31. See, also, Miners, Norman, Consultation with Business Interests: The Case of Hong Kong (1996) 18 Asian Journal of Public Administration, 245. 54 Ghai, ibid., 16, 25. 55 Ibid. 56 Pocket World, op. cit. note 46, 63.


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with a special linkage to the outside world. It is an association which, amongst other things, helps strengthen Hong Kong’s relationship with other fully-fledged, Rule of Law jurisdictions.57 In summary, Hong Kong’s practical experience of the Rule of Law, especially since the end of World War II, has been both real and deeply convincing. This sense of the meaning and importance of the Rule of Law as a key, highly positive aspect of what makes Hong Kong, Hong Kong, has been heightened by two factors in particular. First, there is the fact that Hong Kong is still denied the right to choose its own government and all members of the legislature according to democratic principles. Next, each time Hong Kong residents look across the border to the home of the post-1997 sovereign, the Mainland PRC, the drawbacks of the absence of the Rule of Law, as it is understood in Hong Kong, become starkly apparent.58

3.2 China and the Rule of Law

The PRC has inherited a quite different legal tradition to that of Hong Kong. Imperial China generally shunned comprehensive legalism as far as possible. As the doomed Manchu or Qing Dynasty neared it final collapse in the early 20th century, some efforts were made to introduce a modern legal structure but little came of this reform movement until after the Republic of China was established in 1912.59 The dominant legal model for China has been the Civil Law of continental Europe which traces its roots to Roman Law as well as being influenced by the Dutch and the French during their periods of historical ascendancy.60 The model, moreover, was not imported directly into China from Europe but, rather, through Japan. Modernizing China looked on Japan with a mixture of admiration, awe and anxiety given the extraordinarily rapid development of the institutions of a modern state which occurred in Japan after the Meiji restoration in 1868.61 Japan, in modernizing its legal structure, had looked particularly to the Second Reich of Bismarck’s Germany.62 Following the victory of the Chinese Communist Party in 1949 in the Chinese Civil War, yet another legal influence emerged in China in the form of the legal culture of the former Union of Soviet Socialist Republics.63 Today, the PRC legal system is undergoing vast change. In this current era, the Common Law influence is quite significant, though principally in commercial law and via legislation from the CLW.64 The PRC remains, in terms of fundamental political

57 Mushkat, Roda, One Country, Two International Personalities: The Case of Hong Kong (Hong Kong University Press, Hong Kong, 1997). See, too, Cooray, M.J.A., Hong Kong in China: The Promise of “One Country Two Systems”. A Review of Roda Mushkat, One Country Two International Personalities: The Case of Hong Kong (1997) 42 McGill Law Journal, 751. 58 Canadians have long used the US, in a similar way, to confirm the comparative wisdom of many of their key social policies (such as universal health care and strict firearms laws). 59 See, Chen, Albert H.Y., An Introduction to the Legal System of the People’s Republic of China (3rd ed.) (Butterworths, Hong Kong, 2004) Chapter 3. See, too, O’Neill, op. cit. note 10, 55-58. 60 See, Civil Law (Legal System) at: http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 61 O’Neill, op. cit. note 10, 132-134. 62 See, Civil Law (Legal System) at: http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 63 See, Encyclopedia: Legal System, at: http://www.nationmaster.com/encyclopedia/Legal_system. 64 See, Chinese Law, at: http://www.biography.ms/Chinese_law.html. See, also, Ghai, op. cit. note 18, 95.


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structure, a Leninist State.65 The market-based reforms of the last two decades have resulted in a rapidly waning Marxist influence but Leninist approaches to governance and social control remain significant. China’s three thousand year (plus) tradition of authoritarian government remains intact. This tradition and current PRC political practice continue to deny any full and serious application of the Rule of Law doctrine as it is understood in Hong Kong. 66 The CCP has, however, sought, since the late 1970s, to rely increasingly on legalized modes of governance driven by the memory of the appalling excesses of the “rule of man” as epitomized by Chairman Mao Zedong’s governance, especially during the Cultural Revolution.67 China still seems, predominantly, to see the “Rule of Law” in this rather negative way. It is concept which captures the commitment in China never again to subject the nation to the extremes of a rule of man doctrine.68 Reliance by the CCP on progressively more legalized governance systems also are seen as an important way to provide stronger foundations for the One Party State (OPS) during a period of rapid modernization.69 That same modernization is another key strategy in strengthening the position of the CCP within the OPS. By delivering economic growth through a massive modernization of the vast Chinese economy, the CCP is able to present itself as the fundamental instigator of widening mass prosperity. China’s economic growth since the death of Mao Zedong in 1976 has been stunning with an average growth rate of

65 Leninism refers to the significant theoretical contributions made by Vladimir Ilyich Lenin to the development of Marxist thought. Crucially, Lenin stressed the need for a single revolutionary party comprised of committed activists to act, for a substantial period, as the “vanguard” in forging revolutionary change for the mass of society – and to achieve the complete overthrow of Capitalism. (Lenin also stressed the activist role to be played by developing countries and the peasantry in the pursuit of world-wide revolution.) Lenin’s emphasis on the crucial role of the State provided the clearest justification for the need for a One Party State – and the need for the State to maintain the closest possible control over society so as to protect the revolution, the Party and the State itself. It follows from this that serious alternative political parties or movements cannot be tolerated within a Leninist State and dissent itself always remains, at the very least, suspect. In Leninist thinking, the concept of a “loyal opposition” is even more a contradiction in terms than, for example, a “wealthy pauper.” Leninism thus emphasizes a firm, fixated, ultimately sectarian mode for organizing the State – in order to secure the ultimate economic revolution (the move from Capitalism to Communism) envisaged by classical Marxist thought. Lenin was especially focussed on forging an optimum strategy for implementing Marxism rather than crafting any radical rethinking of fundamental Marxist economic principles. See, further, Leninism and Marxism in (Bullock, and Trombley (eds.)) The New Fontana Dictionary of Modern Thought (HarperCollins, London, 2000) at 476 and 505-506, respectively. 66 See, Peerenboom-A, op. cit. note 2, 49. Leninism’s emphasis on a single (Communist) party maintaining control of the State remains a fundamental principle of political life in the PRC Mainland. See, further, Leninism, at: http://en.wikipedia.org/wiki/Leninism. The inability of the CCP to tolerate any sort of competition is clearly explained in Zhao, Suisheng, Political Liberalization without Democratisation: Pan Wei’s Proposal for Political Reform (2003) 12 Journal of Contemporary China, 333, at 354. 67 See: discussion in Ghai, op. cit. note 18, 86-92; and Peerenboom, ibid., 46. See, too, the short but telling review of Mao’s legacy based on an interview with Li Rui, previously one of Maos’ personal secretaries, in Watts, Jonathan, China must confront dark past, says Mao confidant, at: http://www.guardian.co.uk/china/story/0,7369,1497274,00.html. As Schor (op. cit. note 22) comments, the US Supreme Court observed more than 200 years ago that the Rule of Law is diametrically opposed to the rule of individuals in the seminal US constitutional case Marbury v Madison in 1803 (see, also: http://www.landmarkcases.org/marbury/pdf/marbury_v_madison.pdf ). 68 Chen, op. cit. note 59, 30-38. 69 Zhao, op. cit. note 66, 334.


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around 10% from 1980-2000.70 When one considers that this has been achieved in a country with 1.3 billion people, the growth figures are ever more notable. As it happens, this economic transformation has relied heavily on foreign investors who have been increasingly vocal about the need for an improved PRC legal system. Growing individual wealth with in China is now producing a class of citizens who are adding to the clamour for a stronger legal system, especially for protecting property rights. 71 China’s economic growth has been markedly uneven (with poorer, non-coastal regions and “rust-belt” industrial Provinces lagging very badly). It has also been accompanied by an explosive growth in corruption. But China has, on World Bank estimates, lifted 300-400 million people out of abject poverty in a single generation, an unprecedented achievement in world history.72 It is fair to say that, for the first time in over two centuries, China has been (since the end of the Maoist era) steadily offering more reasons for hope than despair about the future. The CCP’s increasing reliance on “legalism” has not, as we have noted, undermined the OPS in any significant way. By a number of measures it has actually strengthened the position of the CCP. But it has also had the effect of driving significant research effort, within the Mainland as well as without, to understand the full implications of the Rule of Law and how a genuine (thin) Rule of Law regime might be developed and applied in the Mainland. One proposal that has generated much discussion is that put forward by Pan Wei from the School of International Studies at Peking University.73 Pan Wei argues that the PRC should introduce what he terms a “consultative” Rule of Law system in three phases over a 20 year period. There are five foundation components in this system: • A neutral civil service; • An autonomous judiciary; • Extensive social consultative institutions; • An anti-corruption body; and • More extensive – but still limited – freedoms of speech, media, assembly and

association.74 Phase one, which would last for 5 years, would stress education, selling the system and initial institutional reforms. Phase two would see further institutional reforms while phase three would see the remainder of the foundation components put in

70 Srinivasan, T. N., China and India: Growth and Poverty, 1980-2000 at http://www2.gsb.columbia.edu/ipd/poverty/papers/Srinivasan. 71 Peerenboom-A, op. cit. note 2, 46. See too, Fukuyama, op. cit. note 29, where the author stresses the linkage between middle class economic growth and democratic political transitions. 72 See Watts, Jonathan, Chinese lesson in how to put food in the mouths of millions, at: http://www.guardian.co.uk/china/story/0,7369,1225686,00.html. According to this article, China has accounted for some 75% of all the people, world-wide, raised from abject poverty since 1978. 73 The (lengthy) articles referred to earlier by Peerenboom-A (op. cit. note 2) and Zhao, op. cit note 66 each discuss Pan Wei’s proposal to introduce a Rule of Law system in the China without democracy in great detail. 74 Peerenboom, ibid., 45.


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place.75 The CCP could remain, according to this scheme, the sole or leading party but its role would eventually revert to that of a pragmatic, system-maintaining party. It could, in due course, finally shed its last Leninist trappings and move towards becoming a latent social-democratic party.76 Pan Wei’s proposal has been criticised by Peerenboom, inter alia, for a certain lack of understanding of the nature of the Rule of Law and for being overly optimistic about the power of the Rule of Law to act as a positive force in China.77 Peerenboom, also, however, praises Pan Wei for his initiative in crafting a program which is concrete and which has a timetable.78 He concludes that: Pan has provided some useful proposals, which combined with other reforms, could fundamentally change the nature of the Chinese polity.79 Peerenboom’s own view is that it is possible for China to establish what he has termed a thin Rule of Law Regime.80 He also argues that democracy is not currently a viable option for the PRC.81 Fareed Zakaria (editor and columnist at “Newsweek” magazine) has recently questioned the wisdom of introducing democracy in countries ill prepared for it. In his view, developing societies (such as China) do best when they are able to construct preliminary constitutional foundations under what he calls “liberal authoritarian regimes.” Too much democracy in societies not prepared for it can, he argues, inflame ethnic and other divisions.82 Francis Fukuyama makes a different but related point when he argues that countries such as the US cannot “promote” democracy. Democracy is, he says, fundamentally driven by demand from local actors – elites, the masses or civil society – that want it.83 In summary, Mainland China remains subject to a political-legal system which simply cannot be described as Rule of Law based in anything like the sense that this term is understood in Hong Kong. Most fundamentally, the CCP, the ruling party in China, does not consider itself (or at least its upper echelons) as being subject to any higher authority such as the Rule of Law. It takes this view for legal-ideological and practical-political reasons. That said, China has moved a very long way in terms of its reliance on legalized governance since the end of the Maoist era. Beijing increasingly uses legal arguments and legal frameworks when engaged in political dialogue – including with Hong Kong. As economic and social changes continue to unfold at a remarkable rate in China, yet more pressure is placed on the fundamentals of the PRC political structure. These and other factors are driving a wide-ranging

75 Ibid. 76 Zhao, op. cit. note 66, 336. 77 Peerenboom-A, op. cit. note 2, 47. 78 Ibid., 46. 79 Ibid., 67. 80 His arguments are set out in detail in Peerenboom, Randall, China’s Long March Towards Rule of Law (Cambridge University Press, Cambridge, 2002). They are also canvassed in Peerenboom-A, op. cit. note 2. See Section 2.2 for a discussion of the basic differences between “thin” and “thick” Rule of Law regimes. 81 Peerenboom-A, op. cit. note 2, 50. 82 See: Zakaria, Fareed, The Future of Freedom (W.W. Norton, New York, 2003); and also, Judis, John B., Book Review: Putting Liberty First: The Case Against Democracy, at: http://www.foreignaffairs.org/20030501fareviewessay11224/john-b-judis/putting-liberty-first-the-case-against-democracy.html. 83 Fukuyama, op. cit note 29, 4-5.


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exploration of how to help the political structure cope. This investigation, in turn, has placed the entire scope of the Rule of Law ideology under scrutiny in China as never before. A principal zone of study in this regard is Hong Kong. As a result of historical events, the HKSAR has become Beijing’s primary Rule of Law “laboratory.”84

3.3 The Basic Law and the Rule of Law

In 1999, Hong Kong’s Basic Law85 was unequivocally described by Hong Kong’s Court of Final Appeal (CFA) in Ng Kar Ling & Others v Director of Immigration (Right of Abode case) as the Constitution of the HKSAR.86 Although the Basic Law does not incorporate and entrench the Rule of Law by name, it does emphasise that the HKSAR Government must only act in accordance the law and that residents are entitled to seek judicial review of acts of the executive authorities.87 Article 8 of the Basic Law also provides that: The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region. The Basic Law guarantees, too, a wide range of fundamental rights and freedoms in Chapter 3 including: freedom of speech (Article 27); freedom of the person (Article 28); freedom from unlawful or arbitrary entry (Article 29); freedom and privacy of communication (Article 30); freedom of movement (Article 31); freedom of conscience and religion (Article 32); freedom of choice of occupation (Article 33); freedom to engage in research (Article 34); and freedom to access confidential legal advice and to sue the executive authorities (Article 35). Further relevant provisions are: Article 2 (where the NPC authorizes the HKSAR to enjoy independent judicial power); and Article 17 (although this Article allows the SCNPC to invalidate HKSAR laws if they are considered to be not in conformity with the Basic Law, there is no

84 Hong Kong has demonstrated how effective the Rule of Law can be in providing comparative government legitimacy even when that government lacks any democratic mandate. It is fair to say that the HKSAR, now a part of the PRC, continues to do this. Numerous commentators have noted the way that the Rule of Law contributes to both the legitimacy and longevity of governments (see, for example, Schor, Miguel, Rule of Law in (Clark (ed.)) Encyclopedia of Law and Society: American and Global Perspectives, at: http://www.law.suffolk.edu/faculty/addinfo/schor/TheRuleofLaw,Clark.doc). See, too, Loh, Christine, Political Reform & Civil Society: Hong Kong’s Role Within Greater China (Lecture, 25 November 2004, School of Law, City University of Hong Kong, at: http://www.civic-exchange.org/n_pub_cont_04.htm, where the author argues that Hong Kong’s role in participating in the national debate over the future and role of the HKSAR within the PRC will test the vitality of civil society in Hong Kong. See, too, Kumar, Raj, Moving Beyond Constitutionalization and Judicial Protection of Human Rights – Building on the Hong Kong Experience of Civil Society Empowerment (2003) 26 Loyola International and Comparative Law Journal, 281. 85 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China a law of the National People’s Congress of the PRC, was promulgated and adopted by the NPC on April 4, 1990. It came into force on 1 July 1997 when sovereignty over Hong Kong reverted from the UK to the PRC and Hong Kong became the HKSAR. 86 Ng Kar Ling & Others v Director of Immigration [1999] HKLRD, 315, at 337. 87 See, Articles 64 and 35 of the Basic Law. See, also, Ghai, op. cit. note 18, 266.


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power in the Article allowing SCNPC invalidation on the grounds of non-conformity with the Constitution of the People’s Republic of China (1982)).88 On the face of it, the Basic Law thus goes a considerable way in entrenching not just the Common Law system but also the Rule of Law, within the Constitution of the HKSAR. As part of this process, it stresses a fundamental aspect of the Rule of Law; judicial review of (most89) executive acts. Were the HKSAR legal system either self contained (like Australian or Canadian systems now are, for example90) or linked to a similar Common Law system (as Hong Kong was prior to 1997 91 ), this would reinforce the prima facie, convincing substance of the guarantees in the Basic Law. This, of course, is not the case. Since July 1, 1997, the Hong Kong legal system has had to function beneath the umbrella of the PRC legal system or, to be more frank, under the aegis of the PRC political system.92 The primary, clear, constitutional reason for this may be found in the Basic Law, alongside the guarantees of the Rule of Law in the HKSAR. Article 158 of the Basic Law provides that:

The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress…

Article 159 goes on to set out a process for amending the Basic Law but it is Article 158 which has turned out to be the crucial provision as the awkward process of accommodating Hong Kong’s Common Law system within the PRC political-legal tradition has unfolded. Since the change of sovereignty, the Standing Committee of the National People’s Congress (SCNPC) has interpreted the operation of the Basic Law three times. Each interpretation has been controversial. Each interpretation has raised serious questions about the underpinnings of the Rule of Law in Hong Kong. The first interpretation was probably the most controversial for a range of reasons including: being the first; because of the nature of the interpretation; and due to the

88 Other Basic Law provisions which stress the separateness of the HKSAR include: Articles 82 and 92 (foreign judges may be made members of the CFA and appointed to the HKSAR judiciary); Article 111 (the HKSAR shall maintain a separate currency); Article 116 (the HKSAR shall maintain a separate customs territory; and Articles 106 – 110 (which stress the separateness of the taxation and fiscal autonomy of the HKSAR). See discussion by Ghai, Yash, in (Chan, Fu and Ghai (eds.)) Hong Kong’s Constitutional Debate: Conflict Over Interpretation (Hong Kong University Press, Hong Kong, 2000) 48-49. 89 In all Rule of Law systems, exceptions to judicial review are allowed in special cases, for example with respect to certain defense and national security issues and in relation to the dissolution of Parliament. The range of possible exceptions applying in the UK was set out by the House of Lords in Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935, a case which has had wide influence beyond the UK. In general, the range of exceptions to the application of judicial review of executive action continues to narrow, with the executive being called upon to explain with significantly greater precision what constitutes a matter of national security, for example, see Secretary of State for the Home Department v Rehman (AP) [2001] UKHL, 47. 90 In the case of both Australia and Canada, the final legal recourse, in each case, is now to either the High Court of Australia or the Supreme Court of Canada. Final appeals to a court embedded within another legal system, the Judicial Committee of the Privy Council (JCPC) in the UK are no longer available. 91 And as New Zealand was until 2004, where the ultimate court of appeal was (as was the case in Hong Kong until mid-1997) the JCPC. See, http://www.justice.govt.nz/courts/privy_council.html. 92 Ghai, op. cit. note 88, xii.


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issues involved. In the Right of Abode case, in January 1999, the CFA concluded, amongst other things, that: (A) The CFA (and other Hong Kong courts) had an obligation to examine legislation

of the HKSAR to ensure that it was not in conflict with the Basic Law; (B) The Basic Law had been implemented to establish key PRC policies with

respect to the HKSAR for the 50 years subsequent to 1997; (C) The old interpretive restrictions on the powers of the Hong Kong courts under

the British colonial system did not apply to the HKSAR post-1997 as the Basic Law now conferred ultimate power on the courts of Hong Kong and any restrictions on their powers of interpretation had to be found within the Basic Law; and,

(D) It followed from the above that the CFA and courts of Hong Kong enjoyed a jurisdiction to examine, in certain cases, if legislative acts of the National People’s Congress (NPC) were consistent with the Basic Law.93

The CFA also concluded that the Basic Law was the fundamental constitutional instrument of the HKSAR. On the substantive issues in dispute, it was found that a number of the key provisions in the HKSAR Immigration Ordinance94 restricting the right of certain Mainland persons to claim a Right of Abode in Hong Kong, were invalid because they were inconsistent with the relevant Right of Abode related provisions in the Basic Law.95 The concerns expressed after this decision, especially by the HKSAR Government and its supporters and Beijing led the CFA to issue a remarkable “clarification” in late February, 1999, about one month after the decision was handed down in the Right of Abode case. In Ng Ka Ling & Others v Director of Immigration (No. 2) the CFA advised that, notwithstanding in commentary in the Right of Abode case: (a) it agreed that its power of interpretation of the Basic Law was derived from authorization from the SCNPC under Article 158 of the Basic Law; (b) it was not questioning the authority of the SCNPC to offer an interpretation under Article 158 of the Basic Law; and (c) it was not questioning the authority of the SCNPC and NPC to do any act which is in accordance with the provisions of the Basic Law.96

93 Ng Kar Ling & Others v Director of Immigration [1999] 1 HKLRD, 315, at 337. See, also, Chan Kam Nga & Others v Director of Immigration [1999] 1 HKLRD, 304, which dealt with certain other aspects of the Right of Abode claimants, including whether the were born before of after a parent became a Hong Kong permanent resident. For a most complete discussion of all the issues involved, including the constitutional matters and the substantive Right of Abode claims, together with transcripts of all the relevant cases and key documents and details of the public debate, see, Chan, Johannes M.M. Fu, H.L. and Ghai, Yash (eds) Hong Kong’s Constitutional Debate: Conflict Over Interpretation (Hong Kong University Press, Hong Kong, 2000). 94 The particular Ordinances in question were the Immigration (Amendment) (No. 2) Ordinance (1997) (the No. 2 Ordinance) and the Immigration (Amendment) (No. 3) Ordinance (1997) (the No. 3 Ordinance). They each amended the Immigration Ordinance (Cap. 115). Both the No. 2 Ordinance and the No. 3 Ordinance had been passed by the legislature the PRC appointed with effect from 1 July 1997, the Provisional Legislative Council (PLC) after Beijing’s dispute with the UK about the composition of the 1995, Hong Kong Legislative Council. (On these transition problems, see Ghai, op. cit. note 16, 72-80.) The CFA found, in the Right of Abode case, that the creation of PLC was consistent with the Basic Law (and laws it passed were thus, prima facie, valid). 95 Right of Abode case, op. cit. note 86. 96 Ng Kar Ling & Others v Director of Immigration (No. 2) [1999] 1 HKLRD, 577.


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Subsequently, the SCNPC issued, at the request of the HKSAR Government, their first Interpretation under Article 158 of the Basic Law on June 26, 1999. This, in essence, reversed the findings in the Right of Abode case so as to reduce drastically the categories of persons able to claim Right of Abode in the HKSAR. The document is less than three pages long. It basically claims that CFA interpretation was not in accord with the “intent” of the Basic Law without providing any detailed reasons. The Interpretation also says that the CFA should have sought an Interpretation of the SCNPC under Article 158 on the matters in issue.97 The unfolding of this episode provided quite a “rollercoaster ride” for the Rule of Law in Hong Kong. When the Right of Abode case judgment was first handed down, it was hailed for the way it strengthened the Rule of Law in Hong Kong – and this, shortly after the change of sovereignty.98 By December of 1999, the final retreat of the CFA conceding the SCNPC imposed limitations on its power of Basic Law interpretation was complete. 99 In Lau Kong Yung & Others v Director of Immigration,100 the CFA accepted it was bound by the SCNPC Interpretation of June, 1999 which it applied to the facts in this case; it sanctioned the removal (to the PRC Mainland) orders for a number of Right of Abode applicants.101 Over the course of the unhappy resolution of this saga, the HKSAR judiciary came under serious critical attack by those in Hong Kong and on the Mainland opposed to its approach. Even some members of the (expected to be impartial) Basic Law Committee joined in this criticism.102 The second SCNPC Article 158 Interpretation came in April, 2004. This Interpretation was designed to put a stop to momentum building within Hong Kong to accelerate discussion about a significant move towards increased democratization in 2007 (when a Chief Executive election is due under the Basic Law) and 2008 (when a Legislative Council (LegCo) election is due under the Basic Law).103 Under the relevant provisions in the Basic Law,104 the SCNPC has a key role to play but that role arose at end of any 2007-2008 possible democratic reform process.105 What the Interpretation did was stipulate that the SCNPC would need: (a) to consider a (newly required) report from the HKSAR Chief Executive explaining any claimed need to amend the methods for selection of the Chief Executive and/or the formation of LegCo; and (b) then determine if any reform were needed. This interpretation has turned the SCNPC from being a final arbiter under the Basic Law, as drafted, into being an entry-point, gatekeeper.106 The SCNPC, even more than in 1999, effected

97 Chan, et al, op. cit. note 93, 478-480. 98 Ghai, op. cit. note 88, xi. 99 Ibid. 100 [1999] 4 HKC 731. 101 Ibid. 102 See, Davis, Michael, The Basic Law, Human Rights and Democracy: Theory and Practice, in (Loh and Civic Exchange (eds.)) Building Democracy (Hong Kong University Press, Hong Kong, 2003) 12, at 24. 103 See, Articles 45 and 68 and Annex 1 and Annex 2 of the Basic Law. 104 Ibid. 105 See Article 7 of Annex 1 and Part 3 of Annex 2 of the Basic Law. 106 The fundamentals of this second Interpretation remind one of a story (possibly apocryphal) related to Sydney and Beatrice Webb (the Fabian Socialists who together founded the London School of Economics) which highlights the advantages of entry-point gate-keeping. Beatrice was reportedly criticized for dominating her husband. She responded by explaining that Sydney made all the important decisions in their work. She just decided which decisions were important and which were not.


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an amendment to the Basic Law with this Interpretation and attracted significant adverse commentary.107 The most recent SCNPC Interpretation, of Article 53 (and Article 46) of the Basic Law was delivered in April, 2005. Article 53 provides, inter alia, that in the event of the position of Chief Executive of the HKSAR becoming vacant mid-term, a new Chief Executive must be chosen within six months of the relevant Chief Executive stepping down. Article 46 provides that each Chief Executive is to serve for five years and shall not serve for more than two consecutive terms. Mr C. H. Tung, Hong Kong’s first Chief Executive was re-selected for a second five year term commencing from 1 July 2002. In March, 2005, he announced he was steeping down half-way through this second term. Beijing made it known that it wished for the HKSAR Chief Secretary, Donald Tsang (Mr Tung’s effective deputy) to take over from Mr Tung. But Beijing also made it clear that it only wished Mr Tsang – who is better regarded in the HKSAR than Mr Tung108 – to serve out the remainder of Mr Tung’s second term, until 30 June 2007. This is, it would seem, in accord with established practice in the PRC Mainland when a senior government official steps down mid-term. And it may be that Beijing remains keen to keep Mr Tsang, who had spent the vast majority of his working life in the Civil Service working for the British, on a two-and-a-half year rather five year rein.109 The problem was that the Basic Law makes no provision for a shorter than five year term for any Chief Executive, including any new Chief Executive replacing a incumbent who leaves office mid-term. This time Beijing demonstrated some initial reluctance to use the Article 158 power to solve this problem with another Interpretation.110 But as it became clear that any attempt to solve the problem by simple amendment to the Chief Executive Election Ordinance111 would attract an application for judicial review, Beijing decided it needed to act. On 27 April 2005, the SCNPC handed down its third Interpretation stating, inter alia, that a replacement Chief Executive is to serve the remainder of the term of the previous Chief Executive.112 In summary, although there is much in the text of the Basic Law which provides significant underpinning to the Rule of Law in Hong Kong, the regular deployment of Article 158, in particular, has given just cause for serious concern about the long-term impact on the Rule of Law of the Basic Law in operation.113

107 For a thorough coverage of the second Interpretation and the response in Hong Kong see: http://www.democracy2007.org.hk/whatsnewenglish/200404/20040407.htm. 108 See, Hong Kong leader wins approval in local poll, at: http://www.abc.net.au/ra/news/stories/s1365155.htm. 109 Bradsher, Keith, A knight to govern Hong Kong, at: http://www.iht.com/articles/2005/03/10/news/tsang.html. 110 Cheung, Jimmy, Beijing may settle chief’s term row, South China Morning Post, 21 March 2005, A1. 111 Cap. 569. 112 Beijing’s view on HK’s new chief, South China Morning Post, 28 April 2005, A3. For a telling criticism of the most recent resort to Article 158 see, Ghai, Yash, Just what can Beijing teach us, 13 April 2005, A17. 113 Michael Davis took the view, even before the second Interpretation had been handed down, that the first Interpretation had raised many serious questions with respect to health of the Rule of Law in Hong Kong (see Davis, op. cit. note 102, 22-25).


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4.0 THE FUTURE OF THE RULE OF LAW IN HONG KONG 4.1 Calibrating the Rule of Law

The discussion in Part 2 explained both the differences which exist about the precise nature of the term Rule of Law and also the substantial consensus about many of the core elements of the term. Before we consider Hong Kong’s future prospects for maintaining they Rule of Law, it may be timely to précis, at this point, the key elements previously reviewed in Part 2. The following list does not attempt to break these elements into separated “outcome” or “institutional” categories.114 Although there is some merit in these different perspectives, the factors which we are dealing with do not always easily fall into one or the other of these categories. In summary, a full (or thick) Rule of Law regime would normally include the following (non-prioritized) characteristics:115

1. A Government subject to the law and never above it. 2. All persons treated equally before the law regardless of status. 3. Every person subject to the application of the law entitled to due process. 4. Transparent procedural rules for making all laws. 5. A properly representative, primary law-making body (to which the Government

is accountable). 6. Prospective laws only (no retrospective laws). 7. A consistent and stable body of law. 8. An independent, well trained judiciary. 9. An independent, well trained legal profession. 10. Properly staffed and well trained law enforcement agencies. 11. Laws that are generally acceptable to those to whom they apply. 12. Laws and law enforcement mechanisms which maintain genuine and fair law

and order within the community. 13. Freedom of expression and freedom of the press. 14. Effective individual human rights protections. 15. Representative democratic government. 16. A clear separation between the State and political parties.

When we look at the Hong Kong experience of the last several decades, the “report card” on the Rule of Law to date is, overall, fairly positive. The story is not blemish free but, on most of the indicators noted above, the narrative has usually been more

114 A separation approach is suggested as useful by Kleinfeld-Belton in her article, op. cit. note 2. 115 This compilation is a distillation of characteristics listed across a range of publications (see Part 2.2). I have not included in this list any reference to any particular type of economic order, such as a market economy. The most successful market economies typically flourish where the Rule of Law is strong and the two phenomenon often do reinforce one another. But I do not see a market (or any other type of) economy as being key part of the definition of the Rule Law. The economic order within which a Rule of Law system operates will be an important part of the political-economic context, of course. Thus, heavily planned, State dominated economies are more likely to generate a less hospitable context for the Rule of Law because the State, in such economies, experience notable difficulties living easily with, for example, factors, 1 and 8. All the above points are important. Attempting to rank them was, I found, problematic and I could not see any clear benefit from trying to do so.


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affirmative than ominous. There are three conspicuous exceptions, however:

• The lack of an accountable, representative democratic government in the

HKSAR;

• The lack of a properly representative, primary law-making body in the HKSAR; and

• The way in which the independence of the HKSAR judiciary has been

compromised since 1999 through the resort to Article 158 of the Basic Law.

I am aware of other anxieties about the operation of the Rule of Law in the HKSAR beyond these three exceptions such as: the role of law enforcement officers;116 the significant problems with various kinds of group-based discrimination;117 concerns about the impartiality of the prosecutorial process;118 and the influence of the officially “invisible” Communist Party in Hong Kong.119 I wish to concentrate discussion on the above three exceptional concerns, however. These, in my view, are the areas of priority concern with respect to the Rule of Law in Hong Kong. I take this view because of the importance of the three primary concerns and because, in each case, accomplishing change requires interaction, at a fundamental level, with Beijing. The other concerns having an impact on the Rule of Law in Hong Kong are important – but the resolution of these concerns is more directly and primarily a matter for the HKSAR itself.

116 The ICAC and the Hong Kong Police have both been in the news over the last year for arguably making excessive use of their considerable powers (see: Kumar, Raj, Protecting Human Rights while Ensuring Corruption Free Governance: The Need for Establishing Hong Kong’s Independent Human Rights Commission (Part 1) (2004) (September) Hong Kong Lawyer, 99; Shamdasani, Ravina, Hong Kong: The search for answers, at: http://www.asiamedia.ucla.edu/article.asp?parentid=16157; and Vines, Stephen, Pull police into line, The Standard, 13 May 2005 at: http://www.thestandard.com.hk/stdn/std/Opinion/GE13Df01.html. Raj Kumar argues strongly that the HKSAR needs an independent Human Rights Commission to oversee the ICAC, inter alia. 117 See, for example: Petersen, Carole, Racial Equality and the Law (2004) 34 Hong Kong Law Journal, 459; Petersen, Carole, The Failure of the Hong Kong Court of Appeal to Recognise and Remedy Disability Discrimination (2000) 30 Hong Kong Law Journal, 6; Petersen, Carole, Conciliating Rights: A Study of Hong Kong’s Enforcement Model for Equality Rights, at: http://www.liv.ac.uk/law/slsa2005/Streams/equality.htm#5; and US Department of State, Country Reports on Human Rights Practices for 1999, at: http://www.usemb.se/human/human1999/hongkong.html. 118 As James Tang has explained: “The right to bring charges rests with the Justice Department of the SAR government. The decisions by the department not to prosecute two cases have become a matter of public attention. In February 1998 the Justice Department decided not to prosecute the Hong Kong branch of Xinhua News Agency for breach of the Personal Data (Privacy) Ordinance. The agency had failed to respond to a request to release information about former Legislative Councilor Emily Lau within 40 days as required by law. A second noteworthy decision was made when the department charged three executives from the Hong Kong Standard for fraud but did not prosecute the chairman of the newspaper, Sally Aw, who was also named in the case.” See, Hong Kong: The Challenges of Change, at: http://www.asiasociety.org/publications/update_hongkong_challenges.html. See, also, Chan, Johannes, Prospect for the Due Process under Chinese Sovereignty, in (Tsang, Steve (ed.)) Judicial Independence and the Rule of Law in Hong Kong (Palgrave, Basingstoke, 2001) Chapter 6. 119 Officially, there is no Communist Party (CP) branch in Hong Kong. Less officially, it is widely agreed that the CP is notably active in Hong Kong. This was the case before 1997 and it remains the case today. For further discussion see: Neumann, A. Lin, Hong Kong’s Red Shadows, at: http://www.atimes.com/atimes/China/FF10Ad06.html; and Porteous, Holly, Beijing’s United Front Strategy in Hong Kong, at: http://www.csis-scrs.gc.ca/eng/comment/com72_e.html. (Porteous works with the Canadian Security Intelligence Service.)


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4.2 Democratization in Hong Kong

The debate over the pace of democratization in Hong Kong is massive, lengthy and highly important. The effects of foot-dragging on this issue by Beijing and those in Hong Kong who wish to delay change as long as possible are starkly evident in the second Basic Law Interpretation (described above) on the procedure for achieving political change in the lead up to 2007-2008.120 Hong Kong’s “democratic deficit” has been widely noted and discussed. The Government of the HKSAR is, effectively, entirely appointed by Beijing. And LegCo remains seriously flawed as a law-making body because of its system of Functional Constituencies (see further below).121 There is not space here to canvass all the arguments on this major issue. Several things are clear, however. First, Hong Kong people want consistent, good governance and they do not feel they get this under Beijing-appointed, HKSAR Governments. Next, they know that they are ready for full democratization and they see this as the best long term solution to Hong Kong’s governance shortfalls.122 Finally, it is apparent that significantly increasing the overall rate of democratization would do more than anything else to strengthen the underpinnings of the Rule of Law in Hong Kong. 123 Conversely as long as full democratization is denied, the Rule of Law in the HKSAR remains compromised.124 What is most disturbing is that it is impossible to vote out of office any HKSAR Government which may be seen as insufficiently protective of the Rule of Law.

4.3 Law-making in Hong Kong

The Functional Constituencies (FC) scheme used in Hong Kong is unique within the current, global range of electoral systems. It gives half the seats in LegCo to 28 specific interest groups who represent less than 200,000 registered voters, some 13,000 of whom are corporate voters.125 FCs are specifically authorised by Annex II of the Basic Law. The FCs were introduced into Hong Kong by the British in 1985. At that time, it was said that they were meant to provide additional representative weight

120 As with the Rule of Law, there is significant debate about exactly what the term “democracy” means. There is, however, general agreement amongst many political scientists that for a system to qualify as democratic, there needs to be: genuine political competition; regular, free and fair elections; voter accountability; and all citizens must have an equal right to participate in the political process (see, Loh, Christine, Conclusion (in Loh, Christine (ed.) Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (Hong Kong University Press, Hong Kong, 2005) (forthcoming). 121 Hong Kong’s significant democratic deficiencies are explained in some detail in Loh and Cullen, op. cit. note 51. 122 See discussion in Loh, Christine, Introduction (in Loh, Christine (ed.) Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (Hong Kong University Press, Hong Kong, 2005) (forthcoming). 123 For a good review of many of the issues in the ongoing democratisation debate see, Loh, Christine and Civic Exchange (eds.) Building Democracy (Hong Kong University Press, Hong Kong, 2003.) 124 Leo Goodstat argues that: “Without a democratically-elected legislature, the Rule of Law lacks the open and accountable government essential to its well being, and it becomes vulnerable to threats from within Hong Kong itself. Unless an administration is answerable to a democratic legislature, maintenance of the Rule of Law can swiftly become a matter of expediency and dependent on the goodwill of officialdom.” (Goodstat, Leo F., Prospects for the Rule of Law: the Political Dimension in (Tsang, Steve (ed.)) Judicial Independence and the Rule of Law in Hong Kong (Palgrave, Basingstoke, 2001) 195.) 125 See www.voterregistration.gov.hk/eng/statistic3.html relating to distribution of registered electors by functional constituencies in 2003. See, also, Loh, op. cit. note 122.


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to certain economic and professional sectors claimed to be essential to future confidence and prosperity in Hong Kong.126 The last British Governor of Hong Kong, Chris Patten, introduced reforms for the 1995 LegCo elections which expanded the then franchise of FCs from around 180,000 to over 2 million. When these reforms were overturned with effect from July 1, 1997 by the Provisional Legislative Council, the number of FC voters was greatly reduced for the 1998 LegCo elections.127 For a detailed analysis of the FCs, see Civic Exchange’s Functional Constituency Research Project 2004.128 From a political theory point of view, the FCs look very much like a hangover from another era.129 From a Rule of Law viewpoint they represent a significant problem. In the first place the laws of Hong Kong are made by a legislature where half the members are elected other than by direct elections and often in circumstances where only very few votes are required to be elected or where eligible corporate votes decide the outcome.130 Next, the FC incumbents often see their work as protecting special interests rather than representing Hong Kong people generally.131 Finally, the voting rules for LegCo provide that whenever legislators propose motion debates, legislation and amendments to government legislation, they can only be passed if separate majorities of FC members and directly elected members are achieved.132 Hong Kong laws are not made by a fully representative, primary law-making body.

126 The Future Development of Representative Government in Hong Kong (Hong Kong Government Printer, Hong Kong, 1984) 9. See, also, “Turning the clock back to 1984”, Spike, 27 February 2004, 13. 127 Ma, Ngok and Choy, Chi-keung, The Evolution of the Electoral System and Party Politics in Hong Kong in Sing, Ming (ed.) Hong Kong Government and Politics (Oxford University Press, Hong Kong, 2003) 284, at 302. 128 See, in general, www.civic-exchange.org under “publications.” Note, in particular (at this website): Young, Simon N. M., Hong Kong’s Functional Constituencies: Legislators and Elections; Sing, Ming, To What Extent have the Members of the Functional Constituencies Performed the Balancing Role; Young, Simon, N. M. and Law, Anthony, A Critical Introduction to Hong Kong’s Functional Constituencies; and Li, Gladys and Kat, Nigel, Functional Constituencies: The Legal Perspective. Civic Exchange also has a comprehensive book on FCs due for publication in 2005 (Loh, Christine (ed.) Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (Hong Kong University Press, Hong Kong, 2005). This book has chapters featuring updated versions of the above articles, together with a wide range of other chapters. 129 See de Grazia, Alfred, Political Behaviour, Chapter 5 at: http://www.grazian-archive.com/politics/PolBehavior/C_05.html. The author notes that “Relatively few regions construct their constituencies by functional divisions of the population. Under the Fascist regime in Italy there existed a weak legislative body known as the Chamber of Corporations, which was based on constituencies of major occupations. The American National Industrial Recovery Administration from 1933 to 1935 gave certain powers to groups composed of the representatives of the various firms in particular industries. Russian factories until 1936 returned members to the local soviets or councils, which in turn sent members to the higher councils. English university men used to have special representation in the House of Commons. The Irish and Portuguese legislatures are based partially on functional representation.” 130 See, Loh, Christine, Functional Constituencies and Hong Kong LegCo Elections, at: http://www.asianresearch.org/articles/2301.html. Numbers of FC incumbents are regularly returned unopposed due to the lack of any real electoral competition. In the 2004 LegCo elections, around 60% of all FC members were either returned by corporate voting alone or by a mixture of corporate and individual votes. Only about 40% of FC members were returned solely by individual voters. Also in 2004, 11 FC seats were uncontested (see, Loh, op. cit. note 122). 131 Loh, Christine, Functional Constituencies and Hong Kong LegCo Elections, at: http://www.asianresearch.org/articles/2301.html. 132 Ibid. See, also, Part 2, Annex 2, Basic Law.


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There is little sign that the meaningful FC reform is likely soon.133 Unfortunately this difficulty is significant. The FC system represents the single most important, institutional, political-structure flaw in Hong Kong. Its continued presence is having a sustained negative impact on the Rule of Law. (Possible FC reform initiatives are discussed below, in the Conclusion.)

4.4 Article 158 and the Rule of Law

The problems arising from the use of the interpretation power in Article 158 of the Basic Law have already been discussed in Part 3. At a day-to-day level, it is here that the greatest threat to the health of the Rule of Law in Hong Kong has emerged. Major issues have arisen and have been debated (and in the first case, have been litigated). From the point of view of the HKSAR Government – and Beijing – problems have arisen in Hong Kong on three occasions where the “handy” solution lay with Article 158 and an Interpretation from the SCNPC. This resort to Article 158 Interpretations has been prejudicial to the Rule of Law in Hong Kong, protestations by the HKSAR Government notwithstanding. 134 The fundamental difficulty is that Article 158 has opened the way to insert the political decision making customs of the OPS (via the SCNPC) directly into: (a) Hong Kong’s judicial regime; and (b) Hong Kong’s primary constitutional document – in particular, because the Basic Law itself leaves open the question of the proper procedure to be applied when Article 158 is employed.135 It is true that the Basic Law specifically provides for the SCNPC to issue Interpretations. The principal role of the Basic Law is to put flesh on the bones of the “Two Systems” side of the “One Country – Two Systems” equation, however.136 The Basic Law is meant to embody, constitutionally, the essence of Hong Kong’s political inheritance. And the Rule of Law is at the very centre of that heritage. When Article 158 is used: to override detailed considered judgments with short restatements of policy; and to effect what plainly amount to amendments to the Basic Law with need to resort to Article 159, this jostles the foundations of the Rule of Law in Hong Kong. A single (important) provision in the Basic Law is having the effect – because of the way in which it has been deployed – of periodically destabilising the entire instrument. It seems unlikely that this outcome is a deliberate aim of either Beijing or the HKSAR Government. In each case when Article 158 has been used, both Beijing and the HKSAR Government have been bent on achieving some particular policy objective where either the CFA or the Basic Law (or both) appeared to be blocking the way. There are some signs that both Beijing and the HKSAR Government are a little more “gun-shy” about using Article 158 than in the past. The resort to Article 158 in April, 2005 to resolve the debate about the appropriate term to be served by a replacement Chief Executive was delayed apparently in the hope that some other solution may

133 Loh, Ibid. 134 See, CAB refutes any suggestion that HK's high degree of autonomy affected, at: http://www.info.gov.hk/cab/cab-review/eng/media/p072504.htm. 135 Ghai, op. cit. note 88, 50. 136 Ibid., 44 – 50.


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have been found.137 In this particular case, this third use was the least controversial exercise of the power. Hong Kong people were keen to see the problem resolved,138 especially after the delays induced, through judicial challenges, to the launch of a major investment trust in late 2004.139 There are also signs, discussed in Part 2, that there is a growing attempt, amongst certain Mainland academics and others, to understand how something like a valid, thin Rule of Law regime might be developed over time in the PRC. After the first Interpretation, Ghai argued that: It is essential to find some way to maintain coherence in the Basic Law jurisprudence, threatened by the application of rules of different legal systems to different provisions of the same document, and determinations by bodies constituted, one on the principles of a court and the other of a legislature. The way is the judicialization of Article 158.140 The need for an agreed procedural code to govern the use of Article 158 is now even more evident.141 Without the development of such a code, Article 158 retains the potential to destabilize both the Basic Law and the Rule of Law each time it is activated. Ghai laid out a formula for judicializing the use of Article 158 in 2000. He recommended that: 1. The SCNPC agree, as a matter of convention, that it would not undertake an

Interpretation under its general powers. 2. The SCNPC agree that, when exercising its power of interpretation on

reference from the HKSAR, the term “interpretation” would be understood in its Common Law sense of explaining the meaning of a term rather than adding fresh stipulations.

3. A system be introduced to allow relevant parties affected to put arguments forward to be considered by the SCNPC.

4. The SCNPC give reasons for its decision by an analysis of the law. 5. The Basic Law Committee should restrict comments by its members on matters

where they would have to give advice to the SCNPC.142

137 See, Cheung, Jimmy and Cheung, Gary, “This is the only option that is in the interests of Hong Kong, is lawful and constitutional”, South China Morning Post, 7 April 2005, A1. It may be that the HKSAR Government and Beijing drew the process out to “soften” objections to using Article 158. But, even if this were so, it shows an increased awareness of the problems associated with using Article 158. 138 See: Yeung, Chris, Apathy and terms of engagement, South China Morning Post, 7 April 2005, A2, and Gordon, Peter, Basic facts of HK life, at: http://www.thestandard.com.hk/stdn/std/Opinion/GD20Df0.1.html. 139 See: Jonsson, Anette, Where the reit went wrong, South China Morning Post, 18 December 2004, B1; and Hui, Sylvia, Tung “came close to contempt” Weekend Standard, 18-19 December 2005, A5. 140 Ghai, op. cit. note 88, 50. 141 See, Editorial – Basic principles and openness called for, South China Morning Post, April 28, 2005, A12. Basic Law Committee member, Albert Chen, has also called for a mechanism to guide future interpretations. The Basic Law Committee advises the SCNPC on Basic Law matters. See, Cheung, Jimmy and Leung, Ambrose, NPC makes it official: next chief will serve two years, South China Morning Post, April 28, 2005, A1. 142 Ghai, op. cit. note 88, 51.


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This blueprint for creating a set of operational rules for Article 158 remains comprehensive and sound. It provides a firm basis on which to construct an agreed usage understanding. The emphasis has to be on an agreed understanding. One could be forgiven for thinking, at the outset, that Beijing has little need to consider modifying the current approach. As things presently stand, maximum flexibility is realized. But at what cost? Each time the Rule of Law wobbles after the invocation of Article 158 under the current “flexible” procedures, credibility and confidence are undermined. By using Article 158 in accordance with an agreed procedure, these notably bad side effects could be minimized.143 Especially if, as should be the case, it were agreed that clear amendments to the Basic Law should be made in accordance with the provisions of Article 159. Finding an agreed set of Article 158 usage procedures is a thorny task. It will require a commitment to dialogue in Beijing and Hong Kong on this issue which has not been evident to date. Tackling this problem meaningfully offers substantial benefits to Beijing as well as Hong Kong, however. Ghai puts it this way: The Mainland and Hong Kong have a common interest in finding a suitable approach to Basic Law questions. “One Country Two Systems” is an important aspect of the PRC’s foreign and domestic policy and its success is central to China’s scheme for Greater China. It is essential to find a legal basis for that success instead of dissipating energies in polemics.144

4.5 The Rule of Law Debate

We know that the discussion of what the Rule of Law has meant and does mean is extensive and that it will continue to be so. We stand to learn much, over time, from such discussions. The primary participants in the ongoing conversation tend to be lawyers with judges being more listened to that most, as what they say in court is not just commentary; it has a practical impact, immediately, on real persons. It is good, therefore, to see the CFA taking a positive lead in this crucial Hong Kong public discussion. This is especially so given the testing of the court’s nerve in 1999. In May 2005 the CFA handed down its decision in Yeung May Wan & Others v HKSAR.145 In this case the CFA took a purposive, comparative approach when examining the right of Falun Gong practitioners to demonstrate peacefully in Hong Kong. The court found that these demonstrators enjoyed a right to demonstrate protected by Article 27 of the

143 They are bad for: the HKSAR Government; Beijing; and the people of Hong Kong. Lowered confidence in Hong Kong’s commitment to the Rule of Law undermines confidence in Hong Kong as one of East Asia’s most preferred places in which to do business. See, See, Chen, Zhiwu, Press Freedom Essential for Hong Kong’s Success, at: http://yaleglobal.yale.edu/display.article?id=2010. 144 Ghai, op. cit. note 88, 52. If the Hong Kong and Beijing were able to craft a widely agreed process for the use of Article 158 it would substantiate a new capacity in Beijing for sophisticated negotiation outside of the traditional OPS mindset which would be bound to be noticed in Taiwan. 145 FACC 19/ 2004 See: http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=45100&QS=%28Falun%7CGong%29&TP=JU.


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Basic Law (which protects freedom of speech, press, assembly, association and demonstration). The CFA said these freedoms were at the heart of Hong Kong’s system. In quashing the original public place obstruction convictions, the CFA found that the minor obstructions were not unreasonable, especially in the light of Article 27, and the convictions could not stand. The judgment was welcomed for the way it strengthened the protection of human rights in Hong Kong and also the Rule of Law.146 Other judges and commentators regularly discuss Rule of Law issues in Hong Kong often taking differing points of view. It is fundamentally healthy for the Rule of Law that the widest range of views on this topic continue to be aired.147

5.0 CONCLUSION

The Rule of Law is a concept which has been actively developed over many years. A turning point in its maturation is widely agreed to have occurred when A. V. Dicey summarized its broad parameters in 1885.148 Since then, the theory and practice of the Rule of Law have been the subject of an immense amount of commentary. Despite the ongoing, extensive discussion about the nature of the Rule of Law, there is wide agreement about the core elements of this concept. Based on Dicey’s formulation: • Government must always be subject to the law and never above it. • All persons must be treated equally before the law regardless of status. • Laws must be fairly and transparently made. • Everyone subject to the application of the law is entitled to due process – that is

the fair and proper application of the law. This fundamental position has been appreciably developed over the last 100-plus years. Today’s expanded (non-prioritized) 149 list of key Rule of Law elements includes:

146 See: Hogg, Chris, HK quashes Falun Gong convictions, at: http://news.bbc.co.uk/1/hi/world/asia-pacific/4515503.stm; and Ghai Yash, Great guardian of human rights, South China Morning Post, 10 May 2005, A19. 147 See, for example, Shamdasani, Ravina, Senior judge defends independence, South China Morning Post, 10 May 2005, South China Morning Post, A2, where Judge Ma of the High Court and Professor Michael Davis of the Chinese University of Hong Kong stress the importance of an independent judiciary in protecting individual rights. For a somewhat different perspective see, Hoo, Alan, The principle of balance, South China Morning Post, 28 August 2004, A13. Alan Hoo SC is Chairman of the Basic Law Institute. In this article Alan Hoo argues, inter alia, that behind the Basic Law lie what he explains are “basic policies.” There is, it is said, a basic policy governing the political system of the HKSAR which is not meant to be changed for 50 years. (Other basic policies - which it is said are to be found in the Joint Declaration of the Government of the United Kingdom and Northern Island and the Government of the People’s Republic of China on the Question of Hong Kong (1984) – apply to a range of different aspects of life in the HKSAR.) Exactly what the content of this basic policy on Hong Kong’s political system is, is not explained, but it is said that the Central Government in Beijing might contravene this basic policy if it were to change the Basic Law in order to introduce full democracy swiftly in order to satisfy the wishes of Hong Kong people. This argument seems to create a novel – somewhat puzzling – “Rule of Policy” concept which can, in certain circumstances, override the Rule of Law. 148 Leung, Jason, The Rule of Law and its Relevance to the HKSAR, at: http://www.jasononline.com/law/ruleoflaw.htm. 149 After careful consideration I concluded it was best to leave the list non-prioritized.


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1. A properly representative, primary law-making body (to which the Government is accountable).

2. Prospective laws only (no retrospective laws). 3. A consistent and stable body of law. 4. An independent, well trained judiciary. 5. An independent, well trained legal profession. 6. Properly staffed and well trained law enforcement agencies. 7. Laws to be generally acceptable to those to whom they apply. 8. Laws and law enforcement mechanisms which maintain genuine and fair law

and order within the community. 9. Freedom of expression and freedom of the press. 10. Effective individual human rights protections. 11. Representative democratic government. 12. A clear separation between the State and political parties. The PRC Mainland has witnessed a massive transformation of its economic system since the end of the 1970s. Although the form of its political system remains far less changed, its operational features have altered appreciably. And the legal system of the PRC has been fundamentally recast in many respects. The PRC does not have a Rule of Law system, however. It cannot yet pass Dicey’s fundamental tests and it struggles to comply with the twelve extrapolating points listed directly above. That said, the position today on many of the key indicia just noted is less bleak than was the case even ten years ago. Both the law reform and law-making process have made headway, substantial efforts to strengthen the court system continue and there has been some movement on separating the CCP from the State. There is also increased, higher level discussion about how a more serious (thin) Rule of Law regime might be developed within the PRC – and within the OPS. In the HKSAR, the Rule of Law has been noticeably tested since 1997. It has “wobbled” but it has continued to assert itself fairly effectively. There is a powerful, informed citizen support base especially for the plainly perceived, day to day benefits of this system. The HKSAR is fortunate, too to enjoy general robust judicial leadership on the Rule of Law. The media has shown itself to be fairly energetic and politically and legally conversant on this topic, also. As we look to the future, I believe it is possible to identify three key Rule of Law “pressure points” in Hong Kong: A. The lack of an accountable, representative democratic government in the

HKSAR; B. The lack of a properly representative, primary law-making body in the HKSAR;

and C. The way in which the independence of the HKSAR judiciary has been

compromised since 1999 through the resort to Article 158 of the Basic Law. The best way to buttress the long term stability of the Rule of Law in Hong Kong is to fix the democratic deficit. It is evident from the events of 2003-2005, especially, that: (a) most Hong Kong people want and are more than ready for full democratic government; and (b) Beijing and numbers of elite and some “pro-Beijing” groups


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within in Hong Kong remain deeply resistant to anything other than “gradual” democratic change over an unspecified but lengthy time frame. The well reasoned campaign for full democratization is proceeding despite the obstacles. The goal is achievable but within a time frame which is likely to remain significant. The relationship between Beijing and Taiwan – always tense even when “improving” – clearly is having an influence. On the one hand, progress on democratization in the HKSAR can be used to demonstrate to Taipei Beijing’s genuine political flexibility. On the other, given the Taiwan Strait tensions, the last thing Beijing needs is political “unpredictability” in Hong Kong. And in Beijing’s eyes, democracy still spells “unpredictability.”150 The challenge of dealing with pressure point B revolves around tackling the problem of LegCo’s Functional Constituencies. The FCs are, in the 21st century, a notable political structure embarrassment. FC members frequently represent narrow (sometimes very narrow) interests and FCs are, at worst, a travesty of electoral politics. The LegCo voting rules have also been distorted so that they amplify the negative impact of the FCs on fully representative law-making. This is a problem which very much needs to be addressed. The SCNPC has, through its Basic Law Interpretation of April 2004 and subsequent endorsement of the Chief Executive’s report on constitutional development in Hong Kong, insisted that the FC system not be dismantled prior to the next LegCo election due in 2008. The 50:50 ratio of directly elected to FC lawmakers must be retained.151 These SCNPC decisions mean that only less radical changes to the FC system may be contemplated. Less sweeping reform measures which remain open despite the SCNPC rulings include: abolishing corporate voting in all FCs; broadening the franchise for FCs; requiring meaningful, minimum elector numbers; reviewing the current allocation of FCs with the aim of securing a better balance of sectoral representation; and introducing a requirement that the overriding responsibility of FC members is to the HKSAR (in accordance with Articles 66 and 73 of the Basic Law) rather than to their particular FC group. The overall aim is to renovate LegCo’s standing as a properly representative law-making body and thus diminish this enduring Rule of Law shortcoming.152 In a speech in mid-2004, the then HKSAR Chief Secretary (now, the new HKSAR Chief Executive), Donald Tsang, noted the need for business people to engage more constructively and transparently with politics in the HKSAR, especially in view of the fact that the FCs will have to evolve as Hong Kong heads towards its goal of electing all LegCo members by universal suffrage.153

150 Within an OPS, the concept of a “loyal-opposition” remains, essentially, a (political) contradiction in terms – like “wealthy pauper” or “bitter-sweet.” 151 See, NPCSC Endorses Hong Kong Chief Executive’s Report on Constitutional Development, at: http://www.hongkong.org/press/ny_042604.htm. 152 A comprehensive proposal for reforming the FC system can be found in Loh, op. cit. note 120. This FC reform proposal accepts the Beijing notified reality that the FC system will not be abolished in the near future. The proposal aims to reform the FC system by introducing measures that take the system towards universal and equal suffrage. A new set of (comparatively) large, generic FCs would replace the existing FCs for the 2008 Legco election. The proposal also includes new FC seats to represent the voluntary-charitable sector and those working at home caring for families. The proposal does not envisage any move to a bicameral LegCo (see below). The proposal also recommends a similar sectoral-representative breakdown for reconstituting the Election Committee for the HKSAR Chief Executive election due in 2007. 153 Tsang Donald, HKSAR Chief Secretary, Speech to Hong Kong General Chamber of Commerce Luncheon, 19 June 2004, at: www.info.gov.hk/gia/general/200406/16/0616128.htm.


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Another possible approach to reforming the FC system would be to base a program of significant reform around the introduction a bicameral legislature to replace Hong Kong’s unicameral LegCo. The prominent, Business and Professionals Federation of Hong Kong (BPFHK) came out in support of a change to a bicameral system for LegCo in April 2005.154 The BPFHK proposal basically suggests that the new HKSAR lower house (likely to retain 60 members) would be entirely elected by universal suffrage, whilst the new upper house would be comprised of a likely enlarged number of FC members. The proposal also appears to accept that some of the “outstanding flaws” (including the allowance of corporate voting) in the FC system need to be remedied. The BPFHK proposal stresses the considered-review role – and advantages – of an upper house. It is true that upper chambers can operate in this way, but they frequently also continue to represent sectional or regional interests. (Historically, most upper houses in the Anglo-World have been created specifically to protect narrow property or regional interests from the impact of clear-cut, majority-rule.) Given the history of the way Hong Kong’s FC system has worked to date, there is good reason to be concerned that sectoral interests would continue to be of central importance in any HKSAR FC-based, upper house. The BPFHK acknowledges the problem of inter-house conflict in bicameral systems. The proposal notes that “[t]he question of the power the Second Chamber would exercise is important and will require careful examination.” The BPFHK proposal is short on detail. The scheme proposed deserves significant, further discussion, however. The fundamental issue which the proposal raises is: (A) whether it is primarily a genuine step towards reforming and then replacing the FC system; or (B) more a means to entrench a somewhat attenuated version of the current FC system within Hong Kong’s legislative structure. The realization of Aim B would just leave the HKSAR with a still badly compromised legislature casting a disturbing shadow over the Rule of Law. Pressure point C presents the most acute Rule of Law difficulty. Article 158 has the potential to destabilize both the Basic Law and the Rule of Law on a recurring basis. The lack of any widely agreed protocol on: (a) when it should be used; (b) how it should operate once it is invoked; and (c) what its relationship is with Article 159 (the Basic Law amendment provision) has given rise to continuing apprehension and, too often, polarizing, debate. The negative fallout each time Article 158 has been used thus far has been bad for Hong Kong generally – and for Beijing and the HKSAR Government. All parties have a vested interest in working to find a better way of managing the use of Article 158. Ghai suggested a sound framework in 2000 for the judicialization of Article 158. The need for an agreed set of protocols to govern the use of Article 158 has only grown since then. None of these Rule of Law problem areas are going to mend themselves. Lengthy and demanding dialogue not only is what will be needed; there is no other meaningful alternative to achieving serious engagement on the issue of the Rule of Law both within the HKSAR and between Hong Kong and Beijing. Canada presents an example of how deeply controversial and politically divisive constitutional issues can be addressed comparatively well, by means of constant discourse. The largely French-speaking province of Quebec has nursed grievances

154 See, http://www.bpf.org.hk/bpf/BPFReports/2012%20A%20bi-cameral%20solution_e_2nd%20_fnl%2026042005.pdf.


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against English-speaking Canada ever since it was forcibly incorporated into British North America in 1763.155 In more recent times, periodic (thus far, unsuccessful) referendums on Quebec’s secession from Canada have been held. Since the last of these was held (and with the assistance of the Supreme Court of Canada) a mechanism has been legislated setting out how Quebec would need to say “yes” to secession and how any such process of secession might be negotiated. The issue of Quebec independence has not dropped from the political agenda – but the way to manage this debate has been made more transparent and firm.156 It is arguable, too, that a separate (though related) constructive dialogue has emerged between the Supreme Court of Canada and a range of Canadian legislatures, as part of the process of mediating the impact of the Canadian Charter of Rights and Freedoms (1982) (Charter).157 The Charter was introduced by the then Prime Minister, Pierre Trudeau, in significant part as a component in a plan to repel and redirect Quebec nationalist sentiment towards securing “separateness” within Canada. The Charter has been controversial since its introduction. In particular, there has been substantial concern about the Supreme Court imposing its unelected will on society across a range of matters.158 Peter Hogg and A. A. Bushell contend that the “lack of democratic legitimacy” argument against Charter decision making is flawed. This is because legislatures across Canada have been able, as part of the “judicial review dialogue” process, to deal with matters in issue by drafting new laws which comply with Charter provisions, as interpreted by the courts.159 The contestation over the last two decades between “pro-Charter” and “anti-Charter” protagonists has also generated a useful exchange of ideas. The obstacles to building an ongoing dialogue with Beijing and also within Hong Kong in relation to the key Rule of Law dilemmas noted above are more challenging than the problems faced in Canada with respect to Quebec separatism and the Charter, primarily because of the far wider political-legal gulf between the relevant parties in each instance. The Canadian experience confirms, however, that bitterly contested positions need to be worked through when one has ongoing disputation over the meaning and significance of constitutional instruments and principles. All parties involved in the Rule of Law debate within Hong Kong and with and in Beijing have a vested interest in putting a better, agreed, political-legal framework in place for discourse on Rule of Law (and related) issues. This is a discussion which

155 The British captured Quebec City, the capital of Royal Province of New France, in 1759. Quebec itself was formally ceded to the UK in 1763. See, Quebec, Oxford Paperback Encyclopedia (Oxford University Press, New York, 1998) 1119. 156 See Ghai, Yash, Look to Canada, not Sri Lanka, South China Morning Post, April 6, 2005, A19. In this article, Ghai notes that there are broadly two strategies for dealing with “splittists:” suppression or negotiation. Suppression (of the Tamil minority) has been adopted, for decades, in Sri Lanka, with the most awful results including 80,000 dead and no resolution. Canada, says Ghai, exemplifies the negotiation strategy. 157 Canadian Charter of Rights and Freedoms (1982) (Part 1 of the Constitution Act (1982) being Schedule B to the Canada Act 1982 (UK) Cap 11). 158 Allan, James and Cullen, Richard, A Bill of Rights Odyssey for Australia: The Sirens are Calling (1997) 19 University of Queensland Law Journal, 171. 159 Hogg, Peter W. and Bushell A.A.., The Charter Dialogue Between the Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All) (1997) 35 Osgoode Hall Law Journal, 75. See, also, the criticism of this dialogue theory, Manfredi, C.P. and Kelly, J.B., Six Degrees of Dialogue: A Response to Hogg and Bushell (1999) 37 Osgoode Hall Law Journal, 513 and the response to this criticism, Hogg Peter W. and Thornton, Allison A., Reply to Six Degrees of Freedom (1999) 37 Osgoode Hall Law Journal, 529.


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will continue for years, indeed decades. Hong Kong lacks the final say on much that has been discussed above. But it does enjoy many freedoms and excellent human and material resources. Beijing, meanwhile, is more candid than perhaps ever before about its need to find practical, political solutions – consistent with maintaining the wellbeing of both the CCP and the OPS. Its approach has been likened to “groping for stones to cross the river.” 160 Hong Kong, collectively, needs to rise to the challenge of engaging with Beijing over the ultimate role of the HKSAR within the PRC. The future health of the Rule of Law in the HKSAR depends, more than anything else, on this.

160 Loh, Christine, Political Reform & Civil Society: Hong Kong’s Role Within Greater China (Lecture, 25 November 2004, School of Law, City University of Hong Kong, at: http://www.civic-exchange.org/n_pub_cont_04.htm.


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GLOSSARY OF ABBREVIATIONS USED

CCP Chinese Communist Party CFA Court of Final Appeal CLW Common Law World FC Functional Constituency GDP Gross Domestic Product HKSAR Hong Kong Special Administrative Region KMT Kuomintang NPC National People’s Congress OPS One Party State PRC People’s Republic of China REIT Real Estate Investment Trust SCNPC Standing Committee of the National People’s Congress UK United Kingdom US United States of America

Rule of Law in Hong Kong

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