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The Rule of Law The rule of law is the cornerstone of Hong Kong's success and one of its greatest strengths. It ensures equality of all before the law and a level playing field for business. As noted by the Economist magazine, if Hong Kong has a defining ideology, it may be the rule of law. The Basic Law provides the constitutional foundation for the continuation of the legal system previously in force in Hong Kong. Since reunification, Hong Kong remains a member of the common law world. Apart from a few ordinances which were inconsistent with the Basic Law, the ordinances previously in force have been adopted as the laws of the HKSAR. Criminal prosecutions are controlled by the Department of Justice free from any interference and in accordance with the established legal principles and declared policy. This ensures Hong Kong has a prosecution system which is independent, effective and just and that prosecution policy is applied without fear or favour. As was the case before reunification, justice continues to be administered by an independent judiciary. Judges serving before reunification remain in office. The public continues to have unrestricted access to the courts. Sitting at the pinnacle of Hong Kong's legal system is its own final appellate court, the Court of Final Appeal (CFA), which was established on July 1, 1997. The CFA is the ultimate arbiter of the development of the common law in Hong Kong. The Full Court comprises the Chief Justice, three permanent judges and one non-permanent judge chosen from a list which, under a unique arrangement, includes judges from other common law jurisdictions. The current pool of judges from other common law jurisdictions is a 'Who's Who' of the common law world - from Britain, two serving Law Lords, Lord Nicholls of Birkenhead and Lord Hoffman; from Australia, former Chief Justice of the High Court Sir Anthony Mason and former High Court Judge Sir Daryl Dawson; and from New Zealand, retired President of the Court of Appeal and Privy Councillor, Lord Cooke of Thorndon, and retired Court of Appeal Judge Sir Edward Somers. The involvement of experienced overseas judges in the Court of Final Appeal helps Hong Kong to maintain its links with the rest of the common law world. The CFA held its first application for leave to appeal in September last year and the first substantive appeal in December. So far, the Court has heard 27 applications for leave to appeal and four substantive appeals. Underlining the importance placed on maintaining and strengthening the common law system, Hong Kong's laws and its legal system have been the subject of lively and robust debate in the past year. The Basic Law has already engaged the courts. Litigation on two fronts has been of particular interest: The challenge to the legality of the Provisional Legislative Council (PLC). This matter (HKSAR v David Ma and others) was resolved by the Court of Appeal, which upheld the legality of the PLC and affirmed the continuous application of the common law in the HKSAR. Legal challenges over the arrangements for entry into the HKSAR of Mainland-born children with a Hong Kong parent. Under the Basic Law, these children have the right of abode in Hong Kong. To facilitate orderly admission of these children into Hong Kong, the Immigration Ordinance was amended on July 9, 1997, to include a verification process before admission is granted. Parents of more than 1 000 children have challenged the arrangement, claiming it contravenes the Basic Law. The courts have so far upheld the constitutionality of this arrangement but legal proceedings are continuing. There was wide debate on the following legal issues: Prosecution policy: The Basic Law provides that the Department of Justice shall control prosecutions free from interference. Since reunification, this principle has been strictly observed. There was considerable public comment on the department's decision not to prosecute in two specific and unrelated cases - Xinhua, in connection with the Personal Data (Privacy) Ordinance; and Miss Sally Aw, in the Hongkong Standard case together with others named in a conspiracy charge. The Department of Justice has made it clear in public that the status of any suspect or political factors did not feature in the decisions. In a statement to the Provisional Legislative Council on March 23, 1998, the Secretary for Justice, Miss Elsie Leung, made it clear that prosecution decisions were taken independently. She pointed out that as the Hongkong Standard case was sub judice she would not comment on the case itself. However, Miss Leung stressed that the Department of Justice would not bow to external pressure and would continue to act in accordance with the rule of law. Miss Leung said that at the conclusion of the trial, she hoped to make a public statement on the case. The adaptation of laws: This was necessary to maintain laws previously in force, to remove colonial terminology and ensure laws are consistent with the Basic Law and Hong Kong's status as a Special Administrative Region of the PRC. Six adaptation ordinances covering key areas such as nationality, courts of law, shipping and government land were enacted. One of the adaptation ordinances related to the interpretation and binding effect of legislation. The adaptation defined the 'State' and its subordinate organs of power in Hong Kong law and provides that the 'State' is bound by ordinances to the same extent as the'Crown' before reunification. The provision reflects a principle which applies in almost all common law jurisdictions (e.g. Australia, New Zealand, the United Kingdom) that the sovereign government is not bound by legislation enacted in the absence of express provision. The move reinforces, not weakens, the common law system in Hong Kong by providing clear definitions of 'State' and the criteria under which the subordinate organs will qualify. The adaptation process has maintained rather than changed laws in place before reunification and removes any uncertainties which may arise when Hong Kong's courts have to interpret the law. The adaptation of laws has been wrongly interpreted as giving State-owned enterprises a special legal status. This is not the case. The term 'State' has been carefully defined to exclude State-owned commercial undertakings. It reinforces the fact that no one in Hong Kong - from the Chief Executive down - is above the law. Over the past year the Department of Justice has promoted a number of initiatives to develop and strengthen the legal system. The development of legal bilingualism: This will help make the courts more accessible and comprehensive to the public while not compromising Hong Kong's status as an international financial centre. Since May 1997, all of Hong Kong's ordinances have been fully bilingual. The establishment and strengthening of links with foreign jurisdictions across a broad spectrum as contemplated by the Basic Law: This includes the HKSAR's continued participation in more than 20 international organisations and the continued application of more than 200 international treaties in such areas as shipping, aviation, customs, international arbitration and private international law. Work is progressing on extending the network of bilateral agreements, currently more than 50 and covering such areas as mutual legal assistance, surrender of fugitive offenders, investment promotion and protection and air services.
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