高桌｜主题演讲：一国两制下的法治

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主题演讲

2023年11月9日，思廷书院举办了癸卯秋 • 高桌晚宴，特别邀请到香港特别行政区大紫荆勋贤、太平绅士、首任香港特别行政区律政司司长、全国人大常委会香港特区基本法委员会副主任，梁爱诗博士作主题演讲。

演讲主题

一国两制下的法治

The Rule of Law 

under One Country Two Systems

让我们共同重温梁爱诗博士的精彩演讲

  演讲正文  

Master of Muse College, Prof. David Chen, distinguished guests, students of Muse College, CUHK-Shenzhen, ladies, and gentlemen: 

I am honoured to be invited to speak to you tonight at the Muse College Autumn High Table Dinner in Shenzhen.  I was invited by the President of the CUHK – Shenzhen, Prof. Hsu Yang Sang, to visit the campus, but regrettably, due to time constraints, I have not been able to do so.  I did have a virtual view of the campus and was most impressed by its spaciousness, its modernity, and the predominance of green and Chinese cultures. I am also impressed by the innovative and international characteristics of the University, its teaching staff, and students as well as its missions and visions. It is my pleasure getting to know you.  

I had difficulty in finding a topic to speak to you tonight.  I decided on the title “The Rule of Law under One Country. Two Systems” as recently, there has been a massive attack by the Western media on the rule of law in Hong Kong upon the introduction of the Hong Kong National Security Law and I feel obliged to clarify the issue and to defend Hong Kong’s rule of law situation.

01

What is the Rule of Law? 

The rule of law has several meanings and corollaries. As Lord Tom Bingham put it, it is difficult to define but is constantly on people’s lips.  In brief, it means that everything must be done in accordance with the law — the principle of legality. It means nobody is above the law. In the context of the government, its powers must derive from the law and be exercised in accordance with the law. Therefore, even if the government is vested with certain discretionary powers, its discretion must be exercised rationally and without procedural impropriety. The courts are in a position to prevent abuse. Citizens have the right to challenge in courts the legality of acts of the government (including the validity of the law under which it acts) and disputes are to be adjudicated by an independent judiciary. Justice must also be speedy and affordable. The legal procedure should be transparent and the result of proceedings reasonably predictable. The law should be even-handed between government and citizens, striking a balance between the needs of effective administration and the protection of the human rights of individuals. These are people's expectations of the rule of law.  

The rule of law is not just principles.  As President Xi Jinping said: the life of the law depends on its implementation.  These principles are fully understood and implemented in Hong Kong, entrenched in its constitutional order, and form the ground rules by which government policies and legislation are formulated, and administrative decisions are made. It is supported by a well-established legal system, an independent and staunch judiciary, efficient legal professionals and services, and law-abiding citizens and residents.

Before the Reunification, there were pessimistic prophecies that Hong Kong would lose its value after 1997, and one of it would be the deterioration of the rule of law. I shall illustrate that it would not happen, and factually this has not happened. 

02

How is the Rule

 of Law Protected Constitutionally?

Constitutionally, the Hong Kong Basic Law has provided a solid foundation for the rule of law: 

• Laws previously in force including the common law, equity, existing ordinances and subsidiary legislation, and customary law continue to apply in Hong Kong, except those that contravene the Basic Law and are subject to subsequent changes in the law (Article 8). 

• Every Hong Kong resident is equal before the law (Article 25).

• In the course of the formulation of policies and drafting of laws and regulations, the Department of Justice must verify whether the proposed policy, law, or regulation contravenes the Basic Law or the human rights provisions of the Basic Law (Chapter III).

• Any law passed by the legislature must not contravene the Basic Law ( Article 11). 

• The Government is accountable to an elected legislature (Articles 64 & 68).

• Courts are to adjudicate upon cases without any interference (Article 85) and judges are appointed by the Chief Executive on the recommendation of an independent Commission (Article 88) whilst the Chief Executive cannot nominate his own candidate.  Judges enjoy the security of tenure of office and can only be removed due to their inability to perform their duties or misbehavior, in which case it must be investigated and found to be so by a tribunal of three judges before they can be dismissed (Article 89). 

• Hong Kong residents have the right to bring legal proceedings before the courts against acts of  the executive authorities or its personnel  (Article 35).

• Both English and Chinese are official languages for use in courts and in the adjudication of cases, the courts may take into account precedents from other common law jurisdictions, thereby keeping up with the development in the common law world(Article 84).

• The Department of Justice shall control public prosecutions without any interference, not even from the Chief Executive (Article 63).

All these ensure that the legality of the laws, equality before the law,  and judicial and prosecutorial independence are protected by our constitutional order.  Whilst individuals may have failings and people may change, the system entrenched in the Basic Law is not to be changed and the rule of law is maintained.

03

How is the Constitutional 

Order Implemented?

Our Constitutional Order must be implemented through laws and in the administration of justice.   During the past 26 years, there has been a host of precedents that have given life to the constitutional provisions mentioned above.  Apart from the 5 interpretations of the Basic Law by the Standing Committee of the National People’s Congress under Article 158 of the Basic Law, which clarified and supplemented the Basic Law provisions and resolved problems that Hong Kong itself could not have resolved,  common law,  being part of our legal system,  by it continuous link with other common law jurisdictions and the principle of stare decisis, has played an important role in the development of our constitutional order.  In “Basic Law: Selected Drafting Materials and Significant Cases” compiled and published by the Department of Justice in June 2022,  no less than 199 cases relating to the Basic Law were included, showing that the common law has not only survived the Reunification but has continued to grow.  In his important speech delivered at the inauguration of our 6th Term Government on the 1st of July last year, President Xi Jinping twice mentioned the use of the common law by saying that Hong Kong “has maintained a world-class business environment, its previous laws including the practice of common law have been maintained and developed.” and that “The Central Government fully supports Hong Kong in its effort to maintain its distinctive status and edges, …. and to maintain the common law, so as to expand and facilitate its exchanges with the world.”  Hong Kong makes a valuable contribution to China as a super-connector between China and the rest of the world.  As you know, common law and equity are case law, which is a living law, evolving along with changes in the law and societal development not only in Hong Kong but also in other jurisdictions.

04

The Fabrics of the Rule of Law  

There are 4 Permanent Justices, 3 Non-Permanent Justices, and 11 Overseas Justices serving in our Court of Final Appeal, 14 Justices of the Court of Appeal, 34 Justices in the Court of First Instances, 42 District Judges, and 74 Magistrates. Notwithstanding the principle of Hong Kong people running Hong Kong, the Basic Law has specifically permitted foreign judges to continue serving on the benches and allows judges to be recruited from other common law jurisdictions.  In particular, it enables judges from other common law jurisdictions to sit on the Court of Final Appeal.  Most countries and jurisdictions require judges to be a national of that country. At the time the Basic Law was promulgated, about half of the Hong Kong judges were not permanent citizens, if they were replaced upon handover, it might affect people’s confidence in the judiciary.  Judges are chosen on the basis of their judicial and professional qualities and these provisions ensure their high quality. It shows that Hong Kong is a very open society.  

There are approximately 1,500 barristers and 12,000 solicitors, 1,500 foreign and Mainland lawyers providing a pool of talents to serve Hong Kong as an international financial and trading centre.  Free access to justice like Legal Aid, Duty Lawyer Scheme, Legal Advisory Service Scheme, etc. are available, some subject to means test and merits test. In recent years, the Government has proactively promoted arbitration, mediation, and other forms of alternative dispute resolution to facilitate solutions to international and cross-border trade disputes.  However, citizens must be aware of their own rights and are ready to stand up to defend themselves for the purpose of maintaining the rule of law, because the rule of law is a culture: a society where the rule of law flourishes must be one that everyone accepts naturally the obligation to abide by the law and knows the law.  Therefore, educating the public on our constitutional order and the laws is important.  The Government has stepped up on public education on the rule of law.  Therefore, it is no wonder that the World Justice Project’s Rule of Law Index has ranked Hong Kong 23rd out of 142 jurisdictions in 2023 whilst the United States ranks 26th.  The Queen Mary University of London ranks Hong Kong as the 3rd most preferred arbitration centre in the world.

05

How is the Rule

 of Law Protected Constitutionally?

In recent years, Hong Kong has overcome many challenges, the riots in 2019, followed by 3 years of Covid-19.  The riots were triggered by the proposed amendment of the Fugitive Offenders Ordinance which was quickly shelved by the Government.  Its real cause was an attempt by subversionists to overturn the Government and secessionists to separate Hong Kong from the Central Government.  There was clearly an attempt by foreign powers to orchestrate a coloured revolution in Hong Kong.  Our national security was endangered.  However, within 5 months, a plan was mapped out to restore law and order to Hong Kong by perfecting the law and establishing enforcement mechanisms for safeguarding national security.  In 2020, the Hong Kong National Security Law was promulgated by the Standing Committee of the National People’s Congress and made applicable to Hong Kong in accordance with Article 18 of the Basic Law.  Measures were taken to recover control of the Legislative Council and reform our electoral system to ensure that political powers should not fall into the hands of those who endanger the national security of China or injure the interest of Hong Kong.  Political stability was restored and since then 3 elections were successfully held. 

06

Western Media Criticisms Unfair

The world should have felt relieved that there was no loss of life in the restoration of law and order despite that a large number of arsenals was found, including in one case over 4000  petrol bombs.  On the contrary, the Western media started a massive attack on Hong Kong’s rule of law and human rights situations, spreading lies and misinformation, and making remarks not based on or supported by facts for the purpose of attacking China.  The United States Government even imposed sanctions on Hong Kong government officials, and recently U.S. politicians even have proposed sanctions against judges, the Secretary for Justice, and prominent members of the Bar.  These measures show their total disregard for the rule of law because:

(1) It is contrary to United Nations Charters to impose unilaterally sanction against another member state which is not imposed by the Security Council.

(2) It is a violation of the rule of law that judges should be threatened with sanctions for the performance of their duties as judges do not make law but administer justice in accordance with law and evidence.  It is not alleged that judges abuse their powers in the application of the Hong Kong National Security Law.  It was an attempt to penalize them for carrying out their duties.  It is a blatant attempt to pervert the course of justice.

(3) Likewise it is an attempt to interfere with the independent prosecutorial decision of the Department of Justice by threatening its officers and practising members of the Bar with sanctions for the performance of their duties.  

(4) Foreign Judges who sat in our Court of Final Appeal have spoken up time and again and even recently that they have not felt any pressure from the Hong Kong Government in the performance of duties.

(5) No rational ground has been given for challenging the Hong Kong National Security Law, which particularly emphasizes the importance of protecting citizens’ rights and respect for the rule of law in its enforcement.  Deprivation of the right to a jury trial is compensated by a 3 judges’ bench and special investigative powers are subject to control by an equivalent supervisory mechanism.

(6) The accused are charged with national security offences because they have committed crimes - their acts and conduct complained of are clearly stated in their charge sheets, and not because of their political belief or expression. These acts and conduct are well known to the public. It is no excuse that they happen to be well-known figures in the political fields or in society.  

(7) Hong Kong is an inalienable part of China.  It has a constitutional obligation to safeguard the national security of the PRC.  Every country has laws to protect national security.  The United States has more than 20, and much harsher than the Hong Kong National Security Law.  The law fully accommodates the separate legal system practiced in Hong Kong and is consistent with the concept of “One Country, Two Systems”.

07

Conclusions

I have full confidence in our judiciary.  I am sure that these threats will not succeed in frightening judges so that they would shirk from their duties.  They will not be persuaded to abandon the promise in the judicial oath, i.e. “ to serve the HKSAR consciously, dutifully in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit” and so will other officers of the court. 

Despite the attempts to blemish China and Hong Kong with lies, misinformation, and coercive measures, any sensible person will see clearly that those criticizing Hong Kong for its rule of law situation are adopting a double standard and arbitrary attitude, and you need only to come to Hong Kong and see personally how we are, how you may walk in the street free from the threat of violence, free from the threat of violation of your fundamental rights and free from political harassment.  

I wish you all a successful future and welcome you to visit Hong Kong.  We shall continue to explain Hong Kong’s situation.  Time will tell, as the saying goes:  “Veritas Vincit” (Truth Conquers).

Thank you.

中华人民共和国香港特别行政区基本法 

（部分条款参考） 

Article 8：

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.

Article 11：

In accordance with Article 31 of the Constitution of the People's Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.

No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.

Article 25：

All Hong Kong residents shall be equal before the law.

Article 35：

Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

Article 63：

The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.

Article 64：

The Government of the Hong Kong Special Administrative Region must abide by the law and be accountable to the Legislative Council of the Region: it shall implement laws passed by the Council and already in force; it shall present regular policy addresses to the Council; it shall answer questions raised by members of the Council; and it shall obtain approval from the Council for taxation and public expenditure.

Article 68：

The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election.

The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.

The specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II: "Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures".

Article 84：

The courts of the Hong Kong Special Administrative Region shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in Article 18 of this Law and may refer to precedents of other common law jurisdictions.

Article 85：

The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.

Article 88：

Judges of the courts of the Hong Kong Special Administrative Region shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors.

Article 89：

A judge of court of the Hong Kong Special Administrative Region may only be removed for inability to discharge his or her duties, or for misbehaviour, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal and consisting of not fewer than three local judges.

The Chief Justice of the Court of Final Appeal of the Hong Kong Special Administrative Region may be investigated only for inability to discharge his or her duties, or for misbehaviour, by a tribunal appointed by the Chief Executive and consisting of not fewer than five local judges and may be removed by the Chief Executive on the recommendation of the tribunal and in accordance with the procedures prescribed in this Law.

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