The rule of law

 1. Introduction

More than two thousand years ago, Aristotle was the first person to say that the rule of law was better than that of any individual. It is widely acknowledged that the rule of law is a fundamentally principle of administration of countries which is against arbitrary. It is an underlying element in the formation and significance of society in western European countries.

This paper will spot the conception and the importance of the rule of law. I also will give brief reasons about the fact that the rule of law exist in Common law. Next the rule of law in mainland will be considered. Then the scope of the rule of law will be also provided in this paper. Further, a case about Ng Ka Ling will be analyzed. What’s more, it will focus on whether there is the rule of law in HK.

2. The rule of law

2. 1 The meaning of the rule of law

    The ideal of the rule of law by Albert Venn Dicey consists of 3 principles. These principles illustrate some further meanings of the rule of law. In the first place, the law should be clearly and publicly laid down so people can plan their lives accordingly.[1] We should not only know the contents of the law but also have knowledge of the consequences of not following the law, which makes the law predictable. Also, the law should be created by a legitimate process. Furthermore, the public is only punished when the law can be clear to them.Secondly, the law is supreme. The government, court and people are subject to the law and the law treat us the same. No one should be above the law. What’s more, all persons, regardless of position, wealth, class, political views, religion, race or sex, should be treated equally by the law.[2] In the third place, the law must be impartially administered. That is to say those who administer the law should do so impartially, without fear or favour.[3] Judge must be independent and government should not have bias when they initiate legal proceedings. Finally, it must provide some benefits to society such as protecting individuals and promoting justice as well.

2.2 The importance of the rule of law

   Firstly, it prevents the use of arbitrary power. It obliges the government to rule only with laws.[4] Secondly, it protects individual freedom.[5] The rule of law provides a legal basis for the respect of human dignity.[6] Thirdly, it enhances the stability because of the fact that the public can behave in accordance with a clear law. The certainty of the law enables people to know when and where the law will be breached.[7] It is also required by the first Dickey’s principles of the rule of law. Furthermore, the equity of the treatment of individuals is also required in the rule of law.

2.3 The rule of law in Common law

   The ideal of the rule of law is upheld in Common Law. The first is the absolute supremacy of regular law as opposed to the influence of arbitrary power. It can be known as a separation of power, which means that law can not only be made in law course but also can be found in cases. What’s more, the ideal that equality before the law runs through the Common law. Third, the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.

2.4 The rule of law on Mainland

   The Chinese conception of the rule of law must be questioned.

   The culture in China mostly derives from the Confusion. This conception has ruled China for thousands of years. It has a fundamental position to the rule of law.[8] The Emperor had an absolute right to rule and people were under an absolute obligation to obey. The concept of the rule of law is opposed to Confucian concepts of governance. Ethics and propriety govern the people rather than a known system of fixed laws and rules.[9] What’s more, according to Stanley Lubman, a specialist on China's legal system and a consulting professor at Stanford University Law School in California, the rule of law, as we know it, didn't exist in China historically. There is no tradition of the rule of law. Also, 40 years of communism has left a legacy of domination of society by party and state intertwined.[10]

The concept of the separation of powers is the prerequisite of the rule of law. Legislature makes the law and courts interpret the law. Courts have the power to supervise the legislation made by legislature and Administrative acts by the government. This conception first originated from the case of Marbury v.Madison.

On mainland, the CCP which is the one party to maintain control of the political system whole areas of political activity must be considered beyond the control of the law. In such condition, some arbitraries must exist. The law is then seen as an expression of the party’s political program and cannot be used as a check upon the party’s exercise of power.[11]

However, the Art 62 of the constitution of the Peoples Republic of China provided the NPC can not only amend the Constitution but also supervise the enforcement of the Constitution. The Art 67 also provided the NPCSC has the power to interpret the Constitution, supervise its enforcement, enact, amend statutes with the exception of those which should be enacted by the National People's Congress, enact when the National People's Congress is not in session, partial supplements and amendments to statutes enacted by the National People's Congress provided that they do not contravene the basic principles of these statutes and interpret statutes. That means the NPC and NPCSC have both powers to establish a law and to interpret it, which means that the legislature is not only the one who makes the law but also the one who supervise the law. In such circumstances, the court is only the enforcement authority of the NPC and the NPCSC. It is completely different from the separation of powers. Furthermore, it violates one of the principles of the rule of law demonstrating that court must be independent.

The question is arisen who will supervise the NPC and the NPCSC and even who will limit their powers from arbitration in order to comply with the rule of law?

2.5 The scope of the rule of law

   There is a wide scope in the rule of law. In the level of system, the rule of law is an embodiment of a series of legal system and principle including democracy, equality of people before the law, the independence of the judiciary, restriction and supervision of power and so on. In the level of running form, it concludes legislation, administration, jurisdiction, observation by the law and legal supervision.[12]

The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it.[13] Hence, the rule of law has a wider conception, which exerts an significant influence in western European countries and some Asian countries.

3. Hong Kong and the rule of law

3.1 Case about the rule of law in Hong Kong

   Miss Ng Ka Ling and Miss Ng Tan Tan are Chinese nationals born on the Mainland. Their father is HK residents. They came to HK without legal process. On 4 July 1997, they reported to the Immigration. The Director failed to recognize their rights. The case has caught great attention. Because it is related to the power of interpreting the Basic Law. Articles 17, 158, 160 of the Basic Law rule this issue.

The court of Final Appeal alleged they have the right of interpreting the Basic Law and abandoning the law made by HK legislation through checking whether they conflicted with the Basic Law. In the judgment, they asserted they enjoyed the constitutional jurisdiction pursuant to Art.19 of the Basic Law. Hence they concluded the decision Ng Ka Ling and her sister had the rights to abode.

Some experts on mainland argued the judgment violated the Basic Law. Firstly, Art. 19 provided the HKSAR shall be vested with independent judicial power, including that of final adjudication except some restrictions. The word “be vested with” means the power is come from the central authority. HK is a part of China and enjoys a limited degree of autonomy authorized by the central government. Only the NPCSC has the right of reviewing the confliction of the Basic Law and other laws made by the legislature in HK. Further, we can conclude from Art158 that the right of interpretation of the Basic Law belongs to NPCSC, especially the provisions about the relationship between HK and the central government. The power of interpretation of this law shall be vested in the NPCSC. The CFA is authorized to interpret the provisions about HK affairs and has not the jurisdiction to interpret provisions about the relationship between the central authority and SAR as well as the responsibility of central government.[14]

Some other cases such as (1999) 2 HKCFAR 4 also relate to such issues.

On one hand, Ng Ka Ling Case illustrates the extension of the sovereignty of the state. Yash Ghai argued Hong Kong’s very wide substantive autonomy cannot be exercised without fully representative institutions. What the Standing Committee’s interpretations and other decisions of the last few days have done is to signal the absence of genuine autonomy and Hong Kong’s total subordination to Central Authorities. This is not how the promise of autonomy was originally understood.[15] Through analyzing arts.2, 3, 6, 11, and 12,158,159 and so on, Yash Ghai said Hong Kong has not the promise of highly autonomy which was originally understood.

On the other hand, Franz Neumann provided that the rule of law is constituted by human rights and imputation of all acts of state intervention to general norms. He also said there was a logical antagonism between the rule of law and the sovereignty of the states. That is to say the sovereignty of the state extends there is no place for the rule of law. However, when the exercise of state sovereignty confines itself within such limited as to permit of the virtual exercise of the rule of law, the factual antagonism will be eliminate. Just as what Dicey said, the highest efficiency of the power of the state is reached just on the basis of political freedom.[16]

So, how is the political freedom illustrated in HK? Whether the rule of law is still in HK? How does it reflect?

3.2 The rule of law in Hong Kong

First, it reflects in the Basic Law.

Article 25 of the Basic Law provides all HK residents are equal before the law. It is consistent with the second principle of Dickey which indicates that the law treats everyone the same. Article 27 provides that all residents are entitled to the freedom of speech and association. That entitles people not only to get access to what other people say but also to be free to say whatever you want. And the freedom of association means people can get together to do what they want such as following some religions or demonstration. They can be considered to protect the rights of private persons.

   Article 28 of the Basic Law provides no resident shall be subjected to arbitrary or unlawful arrest, detention, imprisonment or search. Article 35 provides all residents have the right to institute legal proceedings in the courts against executive acts. The government, court and people are subject to the law. Art 73(9) provides the legislature is empowered to remove the Chief Executive if he or she commits a serious breach of the law. This provision tells us that everyone is subject to the law. These articles fulfill the rule of law 2 which states that the law is supreme.

    Article 85 demonstrates that the judiciary is independent from any interference, which tells the judiciary can not be affected in any way by legislation and only the court can interpret the law. This article is consistent with the rule 3 of Dicey’s theory.

Second, it reflects on the literal rule which is one of the statutory interpretation rules. The judge should give a literal reading or plain meaning of the words rather than what the judge thinks might have meant. It requires the statutory interpretation is fair to all, which means that the meaning of law should be common plain and public need to know what law means. It also complies with principle of the rule of law that the law should be clearly. Third, it reflects on the rights of the accused in a trail such as the right to keeping silence and so on. Also the suspect must be arrested lawful.

Finally, there are many ways for the public to find the law. The public can get access to the Government Gazette and the Bilingual Laws Information System through some government’s websites. They also can search unreported and reported judgements from the website. Through such researches, they can have knowledge of what the law is. On the other side, the law is publicly laid down so people can plan their lives accordingly in order to know the contents of the law and the consequences of not following the law, which means the law is predictable. It exactly reflects the rule of law in HK as well.

4. Conclusion

The rule of law requires the law should be clearly, publicly laid down and predictable. Also, the law should be created by a legitimate process. It must be supreme, impartially and beneficial. The rule of law is very significant because it not only exerts an influence on the stability of a society but also protects individuals’ rights from arbitration. The scope of it is quite wide, which has illustrated above. What’s more, the rule of law is supported by the common law. And whether the rule of law exits on mainland is arguable by many experts. Further, through analyzing the case of Ng Ka Ling and the provisions in Basic Law and other ordnances, we can conclude that HK still enjoys the rule of law under the Basic Law to some extend. In conclusion, I believe that the rule of law in HK and mainland will be perfected in the future with the development of "one country, two systems.”