LW5601 – Hong Kong Legal System
After the handover on 1 July 1997, Hong Kong formally became part of the People’s Republic of China (PRC). However, the British common law remained intact and the notion of ‘one country, two systems’ was formed. Fundamental to the common law system, is the rule of law, a principle which safeguards citizens from the abuse of state power. Unlike other common law jurisdictions, Hong Kong is not a sovereign nation, it is an autonomous region of the PRC. The PRC’s constitution departs, in certain ways, from the Anglo rule of law tradition. Nevertheless, attempts have been made to preserve the rule of law tradition in Hong Kong, through the Basic Law. However, in this essay it will be argued that certain loopholes were inserted in the Basic Law which in effect allow public authorities to escape judicial restraint. When seen in light of Hong-Kong’s semi-democratic electoral system, it will be argued the essential checks and balances provided by an independent judiciary have been eroded, making the rule of law more myth than reality.
The importance of preserving the Rule of Law
The rule of law is epitomised by a number of principles, foremost among them is the “ability to conduct one’s life without being frustrated by the arbitrariness of the government”. The underlying basis for this principle is to “give respect to the autonomy and dignity of the individuals”, such that they are free to make decisions without interference by the executives, so long as it does not contravene the law. This is reflected in A.V. Dicey’s first formulation that “no person is punishable except for a breach of the law”. However, the rule of law also requires that law-making bodies – the government –are equally subject to the law. This is known as ‘equality before the law’. Without this principle, there would exist ‘rule by power’. Thus, in order to bulwark against tyrannical regimes it is essential that “no man is above the law”, including state...