Why the rule of law and an independent judiciary are so important for HK’s future

By Justin Leung, Year 4, School of Law, City University of Hong Kong

The courts are able to review the actions of the legislature so there is a balance of power

By Justin Leung, Year 4, School of Law, City University of Hong Kong |

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Justice is often depicted as blind to symbolise objectivity.

Last year was highly eventful for the “rule of law” in Hong Kong. I am sure that many Hongkongers have seen related news reports and heard heated debates about whether the rule of law is slowly weakening in Hong Kong.

The law is basically a set of rules that citizens must follow, and these rules are enforceable by the courts. Hong Kong’s laws come mainly from these sources: the Basic Law, ordinances, and common law (i.e. previous judgments made by judges).

An important feature of the law is that it is enforceable by courts. Therefore, most school rules, rules in ball games, and company guidelines are not actually “law”. The study of law and the principles on which law is based is called jurisprudence, which you can study at law school.

All people, including government officials, must abide by the law. That is the rule of law! Any legal dispute about whether a law has been broken should be solved by an impartial court. That is why an independent judiciary (the court system) is important. Imagine if the government controlled the courts. If a government official broke a law, he could try to influence the judges and escape liability.

Another important aspect of the rule of law is the ability of the courts to carry out a judicial review. Under Article 35 of the Basic Law, Hong Kong courts have the power to judicially review actions taken by the executive and legislature. This legal capacity is part of a system of checks and balances between the judiciary and executive and legislative powers. After a judicial review, a court may declare that a decision by the government falls outside the scope of its powers.

However, vicious comments made against the judiciary may harm the rule of law. In August 2017, three leading democracy activists, including Joshua Wong Chi-fung, were jailed. Heated debates followed. Some people claimed it was “political persecution”, while others criticised the custodial sentence for being too short. The unintended impact of this criticism is that the public might have less respect, trust and confidence in the judiciary.

By criticising the judgment, people are implying that the judiciary is giving in to political pressure or is unable to impose an appropriate sentence.

Hopefully this article has given you some insight into the concept of the rule of law. In Hong Kong, the rule of law guarantees our basic rights and ensures that the government acts within its legal boundaries. For Hong Kong to be stable and prosperous, there has to be a solid rule of law, and public awareness of this is essential.

Edited by Nicole Moraleda