The The Rule of Law in the First Two Years of The SAR

Mr Ronny Tong, S.C., Chairman of the Hong Kong Bar Association, was the Foundation's guest speaker on 7 July 1999. These were his remarks.

have been asked to speak on the Rule of Law in the first two years of the SAR. It is a little difficult to speak about the Rule of Law without first considering what the Rule of Law represents. This is particularly so when sometimes different people appear to have different ideas as to what is the Rule of Law.

Rule of Law is a concept that encompasses a number of consequences flowing from the Law being the supreme ruler of our society. There are at least two or three distinct but connected elements:

1. All men are equal before the Law.
2. The Courts should interpret and apply the Law without fear or favour according to the letter of the Law.
3. People should have complete respect for and confidence in the Law.

 

I think it is worthwhile to spend a few moments on each of these elements. First, all men are equal. This requires no elaboration. It is the function of the Law to dispense justice in a fair and equitable way. There will be no Rule of Law, if powerful or respectable people enjoy different rights from the rest of the society contrary to the Law. This is a basic safeguard of our rights, particularly against abuses of the state.

The next element is that the Courts, not the state, should interpret and apply the letter of the Law. The Law is what the letter of the Law says, not what others say what the Law says. The letter of the Law should not change according to social, economic or political climate. The Law should not depend on what the state says it should mean. Otherwise, there will be Rule of Man and not Rule of Law.

The last element is that people should have complete respect for and confidence in the Law. What it means is that people, including the state, should accept and implement the decision of the Courts whether or not they privately think the Court is right or wrong. The concept of right or wrong is never absolute. If the validity of a Court's decision depends on whether one agrees with the decision, then Law ceases to rule and correspondingly people will lose confidence in the Law. It is perhaps worth emphasizing here that when one speaks of confidence in the Law one is really talking about people's perception as to what extent the Law ranks supreme in a civilized society. People's perception sometimes depends on a large number of factors over time and once confidence is undermined, it is very difficult to build it up again in the short term.

Thus the state of health of the Rule of Law in the first two years of the SAR must be measured against major events concerning the Law which occurred in this short period bearing in mind these concepts. There are a number of candidates.

At the end of 1997 and the beginning of 1998, a prominent local newspaper began a campaign challenging the supremacy of the Courts. Judges were vilified daily culminating in a Court of Appeal Judge being followed around for a few days in what the newspaper said was a "lesson" to be taught to the Judge. The SAR Government successfully prosecuted the newspaper for contempt of Court. That was the first prosecution brought to prevent people's confidence in our legal system being undermined. This is a right step in the direction of upholding the Rule of Law.

But at the same time, there was the non-prosecution of the Xin Hua News Agency and Sally Aw, the proprietor of another newspaper, even though there was evidence that they had breached the Law. The non-prosecution was justified on the ground of public interest. That seemed to conflict with the public interest in preserving people's confidence that all men are treated equal before the Law. It is difficult to see a public interest which is more important than the public interest in upholding the Rule of Law.

Then there is the Right of Abode decision. You have probably heard enough about this issue but let me summarize the negative and positive aspects of this extremely divisive issue in this way.

 

The Government would say the positive aspects are:

1. It resolves a pressing social and economic problem;
2. It clarifies the structure of our new constitutional framework and legal system;
3. It corrects a "mistake" in the Court of Final Appeal's decision;
4. It clarifies the meaning of two provisions of the Basic Law.

 

Putting aside the political question as to whether the Re-Interpretation of Articles 22 and 24 by the Standing Committee of the NPC undermines the "One Country, Two Systems" concept, those who oppose Re-Interpretation will point to the following negative aspects affecting the Rule of Law:

1. The most prominent litigant in Hong Kong, the SAR Government, is seen not to be accepting a decision of the highest Court of the land. Not only the former never attempts to implement the decision until the Law is changed but it persistently plotted to overturn the decision ever since it was made;
2. It makes the SAR Government a most special litigant; for it alone has the power to further "appeal" from a final decision of the CFA;
3. There is a general perception that the SAR Government encourages not the rule by the letter of the Law but rule by meanings not immediately apparent from the language of the Law by relying on a document, the Preparatory Committee Report, which it itself did not see fit to argue as being highly relevant in the search for the true meaning of the two provisions in question when the matter was argued before the CFA;
4. Last but not least, all these are particularly worrying when one considers that the Basic Law does not contain any provision which allows the SAR Government to seek Re-Interpretation in this way. Quite the contrary, Articles 158 and 159 seem to suggest that what the SAR Government is doing is contrary to the express provisions of the Basic Law.

 

So to what extent these events undermine rather than support the Rule of Law? That is not a verdict to be passed by me alone but by the people in and people outside Hong Kong. As I have said, the Rule of Law is a concept depending very much on people's perception as to what extent the Law is being regarded as the supreme ruler in our society. At the end of the day, it is perhaps for all of you to tell me, a simple lawyer, whether the Rule of Law is doing well in Hong Kong. But whatever the verdict, in the growing pains of the infancy of the SAR, the Bar and the rest of the legal community here is totally committed to grooming the maturity of the Rule of Law of the SAR in the years to come.

The above does not necessarily represent the views of the Foundation.

 by Ronny Tong