the rule of law in hong kong fifteen years after the...

The Rule of Law in Hong KongFifteen Years After the Handover

KEMAL BOKHARY*

The summer of 2012 marked the fifteenth anniversaryof the handover of sovereignty over Hong Kong fromthe United Kingdom to the People's Republic of Chi-na. Under the "one country, two systems " principleestablished in the handover agreements, Hong Kongwas permitted to retain a "high degree of autonomy"and the existing judicial system was to be maintained.For more than two decades, both before and after thehandover, Justice Kemal Bokhary sat on Hong Kong'shighest court-the Court of Final Appeal. In this Es-say, originally offered as remarks at the University ofZurich, Justice Bokhary reviews Hong Kong's judicialindependence over the past fifteen years, describes thechallenges it currently faces and provides his assess-ment of its future.

INTRODUCTION

"The past is a foreign country: they do things differentlythere." 1 As to Hong Kong, the first part of that celebrated line of LPHartley is literally true. We were a British colony from early Victo-rian times until the stroke of midnight on June 30, 1997.2 Then came"the handover," whereupon we became a Chinese special adminis-

* Non-permanent Judge of the Court of Final Appeal (Hong Kong). Justice Bokharypreviously served as a Permanent Judge of the Court of Final Appeal from its creation in1997 until 2012. For an introduction to this Essay, Justice Bokhary and the Hong Konghandover generally, see Martin S. Flaherty, Essay, Hong Kong Fifteen Years After theHandover: One Country, Which Direction?, 51 COLUM. J. TRANSNAT'L L. 275 (2013).

1. LESLIE P. HARTLEY, THE Go-BETWEEN 9 (1953).

2. A detailed discussion of the relevant treaties is to be found in Anthony Dicks,Treaty, Grant, Usage or Su#firance? Some Legal Aspects of the Status of Hong Kong, 95CHINA Q. 427, 441-451 (1983).

COLUMBIA JOURNAL OF TRANSNA TIONAL LAW

trative region. This is under the "one country, two systems" princi-ple by virtue of which we have a system fundamentally differentfrom the Mainland's. The second part of Hartley's line involvescomparing how we did things before the handover with how we dothem now. I will address it essentially from a lawyer's point ofview-essentially, but not exclusively. The law operates in a widercontext. That context is a process of evolution. Central to it is therule of law. How stands the rule of law in Hong Kong fifteen yearsafter the handover?

Once an entrep6t, later a hive of manufacturing and tourism,Hong Kong is today an international financial center. In 1841, it wasdismissed by Lord Palmerston as "a barren rock with nary a houseupon it."'3 But the public supply of electricity there began in 1890,less than a decade after it had begun in London and New York. 4 By2005, we had more skyscrapers than any other city in the world. 5

Sometimes they remind me of St. Thomas More's lament of beingsurrounded by houses so tall that he could not even see the heavens. 6

It is, from one point of view at least, a story of economic success. Bywhat resources has this success been-and continued to be-achieved? There used to be two. The first is a matter of geography:an excellent harbor, proximity to the Pearl River Delta and having thevast and populous mainland of China as a hinterland. The second is aproduct of circumstances that have fashioned an exceptionally enter-prising and hardworking population.

Now there is a third resource. It is a collective commitmentof the people to the rule of law. As the handover approached, the"ideology of the rule of law contributed to the raising of public con-sciousness of rights and the value of fair administration." So record-ed our leading constitutional scholar Professor Yash Ghai. 7 The Si-no-British Joint Declaration on Hong Kong, signed in 1984, promisesthat "[t]he current social and economic systems will remain un-changed, and so will the life-style." 8 In his first report to Parliament

3. See CHINA TRADE AND EMPIRE: JARDINE, MATHESON & CO. AND THE ORIGINS OFBRITISH RULE IN HONG KONG 1827-1843, at 39-40 (Alain Le Pichon ed., 2006).

4. AUSTIN COATES, A MOUNTAIN OF LIGHT 4 5 (1977).5. Emerging Market Indicators, THE ECONOMIST, Apr. 9, 2005, at 94.

6. PETER ACKROYD, THE LIFE OF THOMAS MORE 107 (1999).7. YASH GHAI, 2 HONG KONG'S NEW CONSTITUTIONAL ORDER: THE RESUMPTION OF

CHINESE SOVEREIGNTY AND THE BASIC LAW 26 (1999).

8. Sino-British Joint Declaration on the Question of Hong Kong 3(5), China-U.K.,Dec. 19, 1984, 1399 U.N.T.S. 33, reprinted in 7 LoY. L.A. INT'L & COMP. L. REV. 139(1984).

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THE RULE OF LA W IN HONG KONG

on that treaty, the British Foreign Secretary stressed that judicial in-dependence "is crucial to the territory's success." 9

I. THE CONSTITUTIONAL INSTRUMENTS

As promised in the Joint Declaration, China promulgated theBasic Law as Hong Kong's post-handover constitution. The BasicLaw was adopted by China's legislature, the National People's Con-gress, in 1990. It came into force on July 1, 1997. So the establish-ment of our new constitutional order did not take place in a rush.Even so, the period leading up to the handover was one of great un-certainty. Our commitment to the rule of law was forged in the firesof that uncertainty.

These things being "part of a larger historical whole," 10 Ibegin with our pre-handover constitutional instruments. Initially andfor most of the British era, there were two: the Letters Patent and theRoyal Instructions.11 In 1991, they were joined by a third constitu-tional instrument: namely, the Bill of Rights, 12 which reproducesalmost word-for-word the International Covenant on Civil and Politi-cal Rights. The Ordinance that introduced the Bill of Rights 13 re-pealed all pre-existing legislation inconsistent with it. Simultaneous-ly, the Bill of Rights itself was entrenched by amending the LettersPatent. It is to the Letters Patent that our legislature, the LegislativeCouncil, owes its powers and, indeed, its existence. The amendmentprohibited any legislation restricting rights and freedoms enjoyed un-der the International Covenant on Civil and Political Rights as ap-plied to Hong Kong. 14 That means the Bill of Rights, which embod-ies the Covenant's application to us.

9. ROBIN COOK, SIX-MONTHLY REPORT ON THE IMPLEMENTATION OF THE JOINT

DECLARATION ON HONG KONG (JAN. JUNE 1997) at 3.2, available at http:/ukinhongkong.fco.gov.uklresources/en/pdf/10795280/1997-jan-jun.pdf.

10. Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95COLUM. L. REV. 523, 553 (1995) (citing H. Jefferson Powell, Rules.f/r Originalists, 73 VA.L. REV. 659, 674 (1987)).

11. Passed under the Great Seal and under the Royal Sign Manual and Signet,respectively.

12. PHILIP A. JOSEPH, 3 CONSTITUTIONAL & ADMINISTRATIVE LAW IN NEW ZEALAND

5 6 (2007).13. Hong Kong Bill of Rights Ordinance, (1991) Cap. 383 (BLIS).14. Hong Kong Letters Patent, (1991) art. VII (3) (H.K.).

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II. CONSTITUTIONAL REVIEW

As a national law, the Basic Law is beyond the power of theLegislative Council-being a regional legislature-to repeal oramend, so our constitution is safeguarded by the judicial power ofconstitutional review. The courts strike down legislation inconsistentwith the constitution. Such power has existed in Hong Kong eversince the Legislative Council was created by the Letters Patent in1843. The judiciary has said that our legislature is supreme "subjectto its constitution" 15 and that any enactment beyond the legislativepower provided by the Letters Patent would be pronounced bad. 16

But that legislative power was to make laws for "peace, order andgood government." 17 Those words were used throughout the BritishEmpire. At the judicial apex of that empire was the Privy Council inLondon, which was our court of last resort until that role was inherit-ed by the Court of Final Appeal in 1997. The Privy Council has al-ways said that the words "peace, order and good government" conferthe widest possible law-making power. is So until the advent of theBill of Rights in 1991, there was little, if any, real scope for constitu-tional review in Hong Kong.

The Basic Law enumerates a wide range of fundamentalrights and freedoms. 19 It also entrenches those in the Bill of Rights.All these fundamentals are safeguarded by guaranteed access to thecourts 20 and by constitutional review. So are the structural arrange-ments of our constitution. Our legal system has English roots. Con-stitutional review is not at present exercised in England, 21 but as Dr.Claire Palley noted,22 an English case 23 on jurisdiction to adjudge

15. The King v. To Lam Sin, [1952] 36 H.K.L.R. 1, 14.

16. The King v. Ibrahim, [1913] 8 H.K.L.R. 1, 18.

17. Hong Kong Letters Patent, (1991) art. VII(l) (H.K.).

18. Reil v. The Queen [1885] 10 A.C. 675, 678 (P.C.); Croft v. Dunphy [1933] A.C.156, 164; Rediffusion (H.K.) Ltd v. AG, [1970] H.K.L.R. 231, 244.

19. XIANGGANG JIBEN FA art. 39 (H.K.) (The Basic Law of the Hong Kong SpecialAdministrative Region of the People's Republic of China) [hereinafter Basic Law].

20. Id. art. 35 (providing that "Hong Kong residents shall have . . . access to thecourts"). See also Solicitor v. Law Soc'y of H.K., [2003] 6 H.K.C.F.A.R. 570, 587 (C.F.A.)("Access to the courts . . . [i]s an arterial right, being the avenue through which all otherrights are enforced by an independent judiciary .... ).

21. C. J. S. Knight, Striking Down Legislation under Bi-Polar Sovereignty, PUB. L. 90(2011).

22. CLAIRE PALLEY: THE UNITED KINGDOM AND HUMAN RIGHTS 20 (1991).23. Dr. Bonham's Case [1610] 8 Co. Rep. 114a, 118a (Ct. Com. P1.).

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legislation void is the precursor of the exercise of such jurisdiction bythe United States Supreme Court. 24 As Mr. Justice Holmes said, thelaw embodies the story of a nation's development through many cen-turies. 25 A polity's law may have roots far older than the polity itself.

III. THE REINTERPRETATION

As I have said elsewhere, 26 discussing judicial independencein Hong Kong without mentioning the "Reinterpretation" 27 would beto ignore the elephant in the room.

Article 158 of the Basic Law vests the power of interpretationin the Standing Committee of the National People's Congress. Butthen-and vitally to the "one country, two systems" principle-theStanding Committee, by the same article, authorizes the Hong Kongcourts to interpret on their own the provisions of the Basic Lawwhich are within Hong Kong's autonomy. That means the whole ofthe Basic Law excluding only a limited category of provisions: thosethat concern affairs that are the Mainland Government's responsibil-ity or that concern the relationship between the Mainland authoritiesand Hong Kong. Also according to Article 158, the Hong Kongcourts are required to seek an interpretation from the Standing Com-mittee if they need to interpret any excluded provision. That re-quirement, it is to be stressed, applies only to excluded provisions.And the Court of Final Appeal did not consider any such provision tobe involved in either of the two cases out of which the Reinterpreta-tion arose.

They were the first two right-of-abode cases that we decided,both in January 1999. In Na Ka Ling v. Director of Immigration28 weheld that persons who have the right of abode in Hong Kong under

24. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).25. OLIVER WENDELL HOLMES, JR., THE COMMON LAW I (Dover Publications, 1991)

(1881).26. See EFFECTIVE JUDICIAL REVIEW: A CORNERSTONE OF GOOD GOVERNANCE 174

(Christopher Forsyth, et al. eds., 2010).27. See The Interpretation by the Standing Committee of the National People's

Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong SpecialAdministrative Region of the People 's Republic of China, LS No.2 to Gazette Ext. No.10/1999, at B1577-B1581 (1999), available at http://www.legco.gov.hk/yr98-99/chinese/hc/sub leg/sc58/papers/p2442c3.pdf (providing the instrument of interpretation in Chineseand an English language translation).

28. Ng Ka Ling v. Dir. of Immigration, [1999] 2 H.K.C.F.A.R. 4, 36 (C.F.A.).

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the Basic Law 29 do not require exit approval 30 to leave the Mainlandfor the purpose of exercising that right. But then in May 1999 theHong Kong Government-throwing away the rulebook, some mightsay-requested an interpretation by the Standing Committee. And inJune 1999 the Standing Committee responded by making the Rein-terpretation, which said, among other things, that such persons needexit approval even for that purpose.

In Chan Kam Nga v Director of Immigration,31 we held thatwhere a child seeks to derive the right of abode through at least oneparent, it matters not whether the parent acquired such right beforethe child's birth or thereafter. 32 The May 1999 request for a StandingCommittee interpretation was in respect to this case too. And the re-sulting Reinterpretation said that the parent had to have acquired suchright before the child's birth.

IV. RECOVERING FROM THE REINTERPRETATION

Our recognition of the Reinterpretation's effect is confined toactual interpretations. 33 Importantly, it does not extend to other ob-servations. We said so in a case 34 concerning the provision in theBasic Law that confers the right of abode on Chinese citizens born inHong Kong before or after the handover. 35 Despite this provision,legislation was enacted in 1999 to deny the right of abode to any suchperson unless at least one of her or his parents had that right. In 2001we struck down this legislation. We did so even though the StandingCommittee had cited an opinion that excludes persons born to illegalimmigrants, overstayers or people residing temporarily in HongKong. This decision of the Court was the high point in the recoveryfrom the Reinterpretation.

29. Basic Law, supra note 19, art. 24 §§ 2-3.

30. Id. art. 22 § 4.

31. Chan Kam Nga v. Dir. of Immigration, [1999] 2 H.K.C.F.A.R. 82, 93 (C.F.A.)(holding that one "can become a Hong Kong permanent resident.., by virtue of a parent'sHong Kong permanent resident status ... whether such status of the parent's was acquiredhe/ore or afier the appellant's birth").

32. In reliance upon Basic Law, supra note 19, art. 24 §§ 2 3.

33. Lau Kong Yung v. Dir. of Immigration, [1999] 2 H.K.C.F.A.R. 300 (C.F.A.).

34. Chong Fung Yuen v. Dir. of Immigration, [2001] 4 H.K.C.F.A.R. 211, 233(C.F.A.) (noting that the interpretation regarding citizenship before or after a child's birth isnot binding on art. 24 § 2(1) of the Basic Law).

35. Basic Law, supra note 19, art. 24 § 2.

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In 2002, we decided a case 36 in which 5,000 Mainland-bornChinese nationals lay claim to the right of abode. By the time wegave judgment in the first two abode cases, each of them had at leastone parent who had that right. So they all had that right under theBasic Law as interpreted in those two cases. Article 158 guaranteesthat judgments previously rendered are unaffected by StandingCommittee interpretations. Relying on this guarantee, they arguedthat their judgment-acquired right of abode survived the Reinterpreta-tion. We split four to one. The majority took the view that the guar-antee's reference to "judgments" should be understood in a strictsense. On that view, they held that the 5,000 could not rely on theguarantee because they were not named parties in the first two abodecases. I saw the protection of crystallized rights as the guarantee'spurpose. So I held that anyone whose pre-Reinterpretation circum-stances fit the law as stated in the first two abode judgments had ac-quired a crystallized right of abode that survived the Reinterpretation.That meant every one of the 5,000.

V. JUDICIAL INDEPENDENCE

There you have the Reinterpretation and the partial recoveryfrom it. At least this saga shows that we decided those cases on ourown, and not in consultation with the executive.

On June 8, 2011, the Court for the first time and by a baremajority of three to two, with me as one of the dissenting judges, 37

sought a Standing Committee interpretation. That was in the CongoCase, 38 a case on which the dust will never settle. Before the hando-ver, it was for the judiciary independently to say whether the stateimmunity available in our courts was absolute or restrictive, so as notto immunize states from liability under commercial transactions.And that, the minority said, remained so after the handover. But themajority held otherwise by a ruling which the leading text publishedsince the decision described as "unwelcome, but ... not entirely un-expected." 39 The judgments are lengthy. They are there to be read.

36. Ng Siu Tung v. Dir. of Immigration, [2002] 5 H.K.C.F.A.R. 1 (C.F.A.). SeeChristopher Forsyth & Rebecca Williams, Closing Chapter in the Immigrant Children Saga,10 AsIA PAC. L. REv. 29, at 36-38 (2002).

37. 1 had the honor of dissenting in the company of Mr. Justice Mortimer NPJ.

38. Dem. Rep. of the Congo, et a]. v. FG Hemisphere Assocs. LLC, [2011] 14H.K.C.F.A.R. 95 (C.F.A.), available at bttp://Iegalref.judiciary.gov.hk/Irs/common/search/search result detail frame.jsp?DIS 76747&QS %2B&TP JU.

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The "one country, two systems" principle consists of two compo-nents. And the gravest danger to the rule of law in Hong Kong lies inallocating to the "one country" component what truly belongs to the"two systems" component.

VI. PURSUIT OF EXPECTATIONS

Constitutional litigation in Hong Kong has been far more fre-quent since the handover than ever before. One reason for thisgrowth, perhaps the main one, is a fundamental change in the mind-set of the population.

There was a time-not all that long ago-when the people ofHong Kong saw things very differently from how they see them now.They generally accepted whatever the government chose to do or notdo. The attitude was of self-reliance in whatever circumstances re-sulted from official action or inaction. Even those living in extreme-ly deprived conditions accepted their lot with resignation. They livedin hope-sometimes realized but all too often disappointed-of amore comfortable life for their children. This hope was, to adopt anexpression which Malinowski once used, "the hold which life [had]on [them]." 40 Whatever the pros and cons of this mindset and what-ever the reason or reasons why it has changed, one simple factemerges: the population now expects more of the government andmore from the government. Some people do not like this change.On balance, I think that its upside exceeds its downside. But I refrainfrom debating the point. As another distinguished anthropologist haspointed out, "what we choose to call progress depends upon thestandard chosen." 41

In evolved democracies, it is essentially through the electoralprocess that expectations are pursued. But in Hong Kong democracyis still evolving and far from fully realized. As I said in a presenta-tion made in London in 2010, everybody in Hong Kong agrees thatdemocracy must be increased, but the pace and form of the increaseare matters of political controversy. 42 Meanwhile people resort to

39. LAW OF THE HONG KONG CONSTITUTION 101, § 3.078 (Johannes Chan & C.L. Limeds., 2011).

40. BRONISLAW MALINOWSKI, ARGONAUTS OF THE WESTERN PACIFIC 25 (1922).41. FRANZ BOAS, ANTHROPOLOGY AND MODERN LIFE 228 (Dover Publications, 1986)

(1928).42. Syed Kemal Bohkary, The Rule of Law in an Evolving Democracy, 16

CANTERBURY L. REv. 225 (2010).

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various ways in which to augment what they can do through the bal-lot box. These include demonstrations in the streets and public lawlitigation in the courts. Such litigation is not limited to rights andfreedoms. It extends to other matters of public concern such as theprotection of natural resources. 43 Our constitutional judgments in-clude two on free assembly. 44 People often demonstrate for greaterdemocracy. Democracy-whether representative, 45 direct 46 orboth-must be accompanied by other fundamentals, especially butnot exclusively for the protection of minorities.

The rule of law is, as Lord Steyn said, "closely linked withthe values of a liberal democracy." 47 Absent full democracy, can therule of law prevail? Yes, on certain conditions. First, there has to beindependent judicial stewardship of an entrenched constitution. Sec-ond, powers must be properly separated. Third, human rights mustbe protected conformably with international norms. Fourth and final-ly, the existence of the rule of law must not be treated as justificationfor delay in democratic development.

Without defining the rule of law, these conditions go towardsillustrating its nature. They also tell you something about HongKong, which our last Governor called "the only place [he has] everbeen able to identify that is liberal but not (alas) democratic." 48 Re-inforcing its liberal nature, Hong Kong's people are now urgentlyengaged in redressing this democratic deficit. Meanwhile, if suchdeficit increases the burden on our courts, so be it. Professor YashGhai has observed that "[i]n Hong Kong, the most profound and en-gaged deliberations occur in the Court of Final Appeal." 49

VII. PRINCIPLED, PRACTICAL AND PREDICTABLE

"[T]he tone and temper in which the modern judge should set

43. Town Planning Bd. v. Soc'y for the Prot. of the Harbour, [2004] 7 H.K.C.F.A.R. 1(C.F.A.) (dealing with the protection of natural resources).

44. Yeung May Wan v. Hong Kong, [2005] 8 H.K.C.F.A.R. 137 (C.F.A.); LeungKwok Hung v. Hong Kong, [2005] 8 H.K.C.F.A.R. 229. See also Janice Brabyn,Fundamental Freedom ofAssembly, 32 HONG KONG L. J. 271 (2002).

45. As by election.

46. As by referendum.

47. JOHAN STEYN, DEMOCRACY THROUGH LAW 133 (2004).

48. CHRIS PATTEN, NOT QUITE THE DIPLOMAT 284 (2005).

49. Yash Ghai, Guarding our Precious Rights, SOUTH CHINA MORNING POST, Jul. 27,2005, available at http://www.scmp.com/article/510096/guarding-our-precious-rights.

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about his task," Mr. Justice Cardozo said, "are well expressed in thefirst article of the Swiss Civil Code of 1907." 50 That quotation illus-trates the respect that common lawyers everywhere have for otherwell-developed systems. Mr. Justice Avory once spoke of "the rulesof common law [having] the incalculable advantage of being capableof application to new combinations of circumstances perpetually oc-curring." ' 51 That is true, but I daresay that a properly drawn code canbe applied to similar effect. Common lawyers are aware of the Swisscourts' achievements in the development of new law through estab-lished principles. 52

Precedent is, as you know, central to the common law. LordMansfield explained that "[t]he reason and spirit of cases make law,not the letter of particular precedents," ' 53 and that the purpose ofprecedents is "to illustrate principles, and to give them a fixed cer-tainty." 54 The common law is therefore directed to solving problemsin a principled, practical and predictable way. I am sure that thesame is true of your law.

VIII. FUNDAMENTALS

By the tenth anniversary of the handover, the Court of FinalAppeal under the leadership of Chief Justice Li had decided over for-ty constitutional cases 55 covering a broad spectrum of fundamentalrights and freedoms: old ones like equality 56 and free speech, 57 andnew ones like adequate housing 58 and indigenous rights. 59 As you

50. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 140 (1921).

51. Berg's Case (1928) 20 Cr. App. R. 38 at41 (U.K.).52. LLOYD'S INTRODUCTION TO JURISPRUDENCE 1405 (M.D.A. Freedman, ed., Sweet &

Maxwell 7th ed., 2001).53. Fisher v. Prince (1762) 3 Burr. 1363 at 1364 (U.K.).54. Jones v. Randall (1774) 1 Cowp. 37 at 39 (U.K.).55. See Kemal Bokhary, The First Decade of The Basic Law-A Judicial Perspective,

15 ASIA PAC. L. REv. 125, 127-129 (2007).

56. Sec'y for Justice v. Chan Wab, [2000] 3 H.K.C.F.A.R. 459 (C.F.A.); So Wai Lunv. Hong Kong, [2006] 9 H.K.C.F.A.R. 530 (C.F.A.); Sec'y for Justice v. Yau Yuk Lung,[2007] 10 H.K.C.F.A.R. 335 (C.F.A.).

57. HKSAR v. Ng Kung Siu, [1999] 2 H.K.C.F.A.R. 442 (C.F.A.).; Cheng v. Tse,[2000] 3 H.K.C.F.A.R. 339 (C.F.A.).; Medical Council v. Helen Chan, [2010] 13H.K.C.F.A.R. 248 (C.F.A.).

58. Ho Choi Wan v. Hong Kong Housing Authority, [2005] 8 H.K.C.F.A.R. 628(C.F.A.).

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would expect, indigenous rights are enforced only after they havebeen judicially divested of any unacceptable practices such as genderdiscrimination. 60

The matter of housing reminds me to acknowledge the dispar-ity in wealth afflicting Hong Kong. We are no exception to the trou-blesome rule that Lord Desai noted when he said that "across Asiansociety there is a very intimate relationship between business andgovernment." ' 61 That does not make reducing the disparity in wealthany easier. It is an urgent problem to be addressed. This is not to saythat the present situation is one of social Darwinism with the weakestleft by the wayside. To the contrary, almost a third of Hong Kong'spopulation lives in public housing at subsidized rent. And Article145 of the Basic Law calls for the development and improvement ofsocial welfare in the light of economic conditions and social needs. Iam heartened by Dr. David Shankland's recent statement that anthro-pology now "seeks applicability and relevance in the study of ine-quality in all its global variety." 62 As Adam Smith is credited withhaving understood, "the law of a society sits, a little uneasily per-haps, between its morality and its economics." 63

IX. THREE CATEGORIES OF POST-HANDOVER LEGAL DEVELOPMENT

Post-handover legal developments can be divided into threecategories. The first category consists of developments that wouldhave taken place in any event. Some were effected by legislation inthe ordinary course of law reform. Others were effected by thecourts doing what Lord Nicholls of Birkenhead pellucidly describedas "keeping [the common law] abreast of current social conditionsand expectations." 64 For it should always be borne in mind that, asLord Scott of Foscote said, "tradition, no matter how longstand-ing..., cannot justify practices that fall short of [current] stand-

59. See Chan Wah, 3 H.K.C.F.A.R.

60. Id. at 474J-476G. See also LAW OF THE HONG KONG CONSTITUTION 29.077, at908 (Johannes Chan & C.L. Lim, eds., Sweet & Maxwell 2011).

61. Meghnad Desai, The Resurgence qfAsia, 43 ASIAN AFF. 1, 9 (2012).

62. David Shankland, Anthropology in the World: Limits and Unity, 28ANTHROPOLOGY TODAY 4 (2012).

63. Peter Stein, Adam Smith's Jurisprudence, in JUBILEE LECTURES CELEBRATING THEFOUNDATION OF THE FACULTY OF LAW, UNIVERSITY OF BIRMINGHAM 136, 152 (J.M.B.Crawford, ed., 1981).

64. In re Spectrum Plus Ltd., [2005] 2 A.C. 680 at 697E (Eng.).

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ards. ' ' 65 From time to time, it is necessary, as Lord Denning ex-plained, to "create new precedents so as to meet new situations." 66

In the second category are developments not exclusively oreven mainly referable to the handover but influenced by it. Herethree factors are especially influential. One is easier access to thecourt of last resort (now in Hong Kong instead of London). The sec-ond is an eclectic jurisprudence open to overseas ideas. And the thirdis people's heightened awareness of what can be achieved throughthe courts. This awareness has spun off into increasing demands forlegislative reform in areas such as competition law.

Initiatives generated by the handover and designed to make itwork form the third category. It consists of a growing body of con-stitutional law that draws on international law67 and cases decided inother municipal jurisdictions in regard to transnational norms. 68

This body of constitutional law includes two novel features.One is the striking down of a statutory provision that is not itself un-constitutional but which, if not excised, would drag down the entirestatutory scheme of which it is a relatively minor part. 69 The other isthe recognition of a jurisdiction-exercisable when necessary-tosuspend the operation of a striking-down order for a limited period toafford an opportunity for corrective legislation. 70 After all, as LordAtkin said, legislation "may have a perfectly lawful object.., butmay seek to achieve that object by invalid methods. '' 71 Then suspen-sion may be appropriate where the lawful object is of vital im-portance.

Those two features accord to the legislature what is within itsprovince. Government, as Thomas Paine wrote in the eighteenth cen-tury, "has of itself no rights; they are altogether duties." 72 It follows

65. Lau Wai Wo v. HKSAR, [2003] 6 H.K.C.F.A.R. 624 at 645E (C.F.A.).

66. LORD DENNING, FROM PRECEDENT TO PRECEDENT 34 (1959).

67. In Maho v Queensland (No.2) [1992] 175 CLR 1, 42 (Austl.), Mr. (later Chief)Justice Brennan stressed the influence on the common law of international law declaringuniversal human rights.

68. See Johannes Chan, Hong Kong's Bill ofRights, 47 INT'L AND COMP. L. Q. 306(1998); Albert H. Y. Chen, International Human Rights and Domestic Constitutional Lai.:Internalization of Constitutional Law in Hong Kong, 4 NAT. TAIWAN UNIV. L. REV. 237(2009); and Denis Chang, Human Rights, 40 HONG KONG L.J. 253 (2010).

69. Koon Wing Yee v. Insider Dealing Tribunal, [2008] 11 H.K.C.F.A.R. 170(C.F.A.).

70. Koo v. Chief Executive, [2006] 9 H.K.C.F.A.R. 441 (C.F.A.).

71. Gallagher v. Lynn, [1937] A.C. 863 (H.L.) at 870 (Eng.).

72. THOMAS PAINE, THE RIGHTS OF MAN, 187 (Henry Collins ed., Pelican Classics

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that each branch of government must permit the other branches toperform their duties.

Of post-handover developments, the first category is natural.The second reflects easier court access and a greater appreciation ofwhat the law can do. And the third concerns developments that Ithink are indispensable and must be taken even further. The poly-math Thomas Young spoke of deep and difficult investigations thatbring out beautiful and simple results. 73 That quotation captures howthe best judgments are prepared and what they offer. The lawyer'smission is to free the law from technicalities and infuse it with jus-tice.

X. OUR PEOPLE'S ASSERTIVENESS: THE MAINSTAY OF OUR LEGALSYSTEM

Human rights and democracy each play an "irreducible" 74

role, and the rule of law is "intimately linked" 75 with observing hu-man rights. All of this I believe to be universally true. For I agreewith John Donne that no man is an island.76 Nor is any culture orcommunity an island. Inhumanity anywhere diminishes humanityeverywhere.

However high a constitutional objective, its attainment is pos-sible if the judiciary is true to its duty and is supported in that duty byan alert population, a free media, a learned academy and a dedicatedprofession. 77 In Hong Kong, we are engaged in preserving our liber-ties, enhancing our democratic institutions and furthering social jus-tice.

Last year, it was my privilege to go to Kenya where I madetwo presentations to the judges of its newly established Supreme

1969) (1791).

73. ANDREW ROBINSON, THE LAST MAN WHO KNEW EVERYTHING 183 (OneworldPublications, 2006). See also THE STRUGGLE FOR SIMPLICITY IN THE LAW: ESSAYS FOR LORDCOKE OF THORNDON (Paul Rishworth ed., Butterworths 1997).

74. See William Rehg, Introduction to JURGEN HABERMAS, BETWEEN FACTS ANDNORMS xxv (William Rehg trans., MIT Press 1996).

75. LORD WOOLF, THE PURSUIT OF JUSTICE 211 (Christopher Campbell-Holt ed.,Oxford University Press 2008).

76. JOHN DONNE, MEDITATION XVII, in DEVOTIONS UPON EMERGENT OCCASIONS 86,87 (Anthony Raspa ed., McGill-Queen's Univ. Press 1975) (1624).

77. See TEO SOH LUNG, BEYOND THE BLUE GATE: RECOLLECTIONS OF A POLITICALPRISONER (Strategic Information and Research Development Centre, Petaling Jaya, 2010).

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Court. They have to administer a new constitution 78 that reconfig-ures the socio-economic landscape of their nation for the benefit ofher people. In Hong Kong, the scope for judicial enforcement of so-cio-economic rights is enlarged by our constitution's incorporation ofthe International Covenant on Economic, Social and CulturalRights. 79 It is true that courts are not ideally equipped to undertakeresource allocation. Nevertheless, the courts will-as the Swiss judi-ciary has pointed out-intervene if legislation fails to accord peoplethe basic necessities to which they are constitutionally entitled. 80

One of the most important and challenging tasks of lawyers every-where in the years ahead will be to articulate enforceable duties cor-responding to socio-economic rights and devising effective remediesfor breaches of such duties.

Some fear of change is understandable, but should never bepermitted to block progress. As Professor A. Berriedale Keith said,"there is a time when the true wisdom lies in a generous enthusiasmto incur risks in an honorable endeavor to meet legitimate aspira-tions." 81

Eradicating social injustice may generate disharmony wherepreserving civil liberties has not. Some compromise may prove una-voidable. It is told in The Book of Changes (Rfi) that "[t]o carrythe conflict to the bitter end has evil effects even when one is in theright, because the enmity is then perpetuated." 82 The people of HongKong have not forgotten the classic teachings of traditional China,which have influenced Chinese thought for thousands of years. Butas a Western philosopher has observed, though life must be under-stood backwards, it must be lived forwards. 83 Our people are moreassertive nowadays. This assertiveness is the mainstay of our system.

The present state of the rule of law in Hong Kong is betterthan many had feared at the time of the handover. And we weremaking progress. Recently, however, there have been signs of going

78. See PAL Y. GHAI & J. COTTRELL, KENYA'S CONSTITUTION: AN INSTRUMENT FORCHANGE (Katiba Institute 2011).

79. Basic Law, supra note 19, art. 39.

80. See Bundesgericht [BGer] [Federal Supreme Court] Oct. 27, 1995, 121ENTSCHEIDLiNGEN DES SCHWEIZERISCHEN BUNDESGERICHTS [BGE] 1367 (Switz.).

81. ARTHUR BERRIEDALE KEITH, SPEECHES AND DOCUMENTS ON INDIAN POLICY, 1750-1921, at vi (Oxford University Press 1922).

82. T.L. Yang, Bentham Meets Conficius, 44 CURRENT LEGAL PROBS. 261, 269 (1991).

83. Soren Kierkegaard, 4 JOURNALS AND PAPERS OF SOREN KIERKEGAARD, 164 ("It isquite true what philosophy says: that life must be understood backwards. But then oneforgets the other principle: that it must be lived forwards.").

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2013] THE RULE OF LA W IN HONG KONG 301

into reverse. A free and fair society is not easy to build and maintain.But I bid you have faith in the people of Hong Kong to regain anylost ground and start moving forward again.

the rule of law in hong kong fifteen years after the...

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