"The Rule of Law" by The Right Honourable the Lord Mance

Lord Mance was a High Court/ Commercial Judge (1993-1999), a Court of Appeal Judge (1999-2005) and a Law Lord (2005-2009), becoming a Justice of the UK Supreme Court when founded in 2009 and its Deputy-President (2017-2018).

1. Aristotle said: “It is better for the law to rule than one of its citizens, so even the guardians of the laws are obeying the laws”. Dr Thomas Fuller put this still more pithily in 1733: “Be you never so high, the Law is above you - a favourite quotation of Lord Denning’s.

2. These are statements encapsulating two elements basic to the rule of law[1]:

  1. First, the concept of “law” itself. By that, we mean a settled body of rules, publicly made, taking effect (save in limited and exceptional circumstances) prospectively and publicly administered in the courts.
  2. Second, the principle that all persons within the state, public or private, are bound by and entitled to the protection of the law.

There is a third element of the rule of law, namely that the protection afforded must comply with basic standards of fairness.Its ambit is not easy to define. It reflects our modern understanding that it is the role of the law to ensure not merely procedural, but also substantive, equity.

3. The Rule of Law is well embedded in modern international instruments, particularly since the Second World War.

  1. The Universal Declaration of Human Rights 1948 declares it “essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppressions that human rights should be protected by the rule of law”.
  2. The ECHR refers to European governments as having a common heritage of political traditions, ideals, freedom and the rule of law.
  3. The Treaty on the European Union, article 2 declares that:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

Article 2 was recently relied on by the Vice-President of the Court of Justice of the EU to justify an interim order that the Polish government reverse its legislation shortening the tenure of the existing Polish Supreme Court judges and appointing new ones. In the UK the rule of law is assumed as the basis of our legal system by the Constitutional Reform Act[2].

4. If a system is to involve the rule of law, it must contain both the first two elements. Taking the first element alone - a settled body of rules publicly and prospectively made, administered and adjudicated -  we might talk of rule by law.  But rule of law is different from rule by law. Legalism is not the same as legality. The world of Kafka’s The Trial (one of arbitrary arrest and criminal process according to unknown rules - the victim did not know what was happening to him until finally sentenced to death.) would not even satisfy the criterion of rule by law. But rule by law is not enough. It allows the imposition on society of rules by a ruling class not itself subject to the same rules. To speak of the rule of law, all individuals, institutions and elements in society must be equally subject to the law.

5. We associate this general principle today with clauses 39 and 40 of Magna Carta, still in force, limited though their original effect may have been. Clause 40 reads

      “To no one will we sell, to no one deny or delay right or justice”.

That is at the root of the independent administration of justice. Clause 39 reads:

     “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

That is the seed of individual rights, liberties and protection. These core rights are protected by habeas corpus, by the long-standing common law prohibition of torture and other civil wrongs and by the criminal law. They are central to the protection of the individual from arbitrary state action, though we now recognize many additional rights, such as freedom of speech, association and religion.

6. If all are to be equally subject to the law, there must be a separation between those who make, those who administer and those who adjudicate upon the law. If those who make or administer the law decide what it means and how it applies to themselves, they are judges in their own cause. No-one who understands human nature can miss the significance of that. There will not be the rule either of or indeed by law. There will be the rule of preference and potential bias, which (however much we may deceive ourselves as humans to the contrary) always influences humans when they are acting in their own interests. A true separation of powers is foundational before we can speak of the rule of law.

7. The seeds of this vital separation were sown in modern times by John Locke and Montesquieu. Locke wrote in 1690 that “Wherever law ends, tyranny begins”. Montesquieu, who had studied constitutional developments in England in the 17th century, followed up the thought, writing in translation: “It is an invariable experience that everyone who has power is tempted to abuse it…..  In order to prevent abuse of power, a system is necessary in which power controls power.”[3] But Locke and Montesquieu were aiming primarily at constraints on freedom, whether imposed by abusive authority or by the perceived fetters of natural law. Montesquieu actually downplayed the judicial role, when he described judges as the mere mouth of the law (“la bouche de la loi”). In modern days, we realise that judges do a great deal more than simply reproduce what the lawmaker says, because so often the law leaves some matter uncertain or requires common law interpretation. It was Kant who most clearly enunciated the balanced division of power, towards which he concluded that “reason, by a categorical imperative, impels us”[4]. He thought that the separation of powers was a categorically necessary feature of a modern society. And I agree.

8. In short, if the law is to be fairly and equally applied, the three powers of the state, the legislature, executive and judiciary must control and balance each other. They can only do this, if they are substantially separate. In practice, this seems only to occur in societies which are substantially democratic, although I do not suggest that all democracies operate or abide by the rule of law. It has been pointed out that the Weimar Republic voted to give Hitler’s government uncontrolled powers, a foolish and undemocratic move for any democracy. In the United Kingdom, the constitutional developments which gave rise to a separation of powers involved in 1649 the execution of one King and in 1688 the disposition of another. But the groundwork was laid a little earlier by Chief Justice Coke, in clashes with James I which Coke had the advantage of being able to record in his own terms in his own set of highly readable law reports. He may in that respect be compared with Churchill who said "History will be kind to me because I shall write it".

9. In the Case of Prohibitions (1607), James I claimed to sit as a judge in his own courts, saying rather charmingly that “he thought the law was founded upon reason, and that he and others had reason, as well as the Judges”. To which Coke crushingly replied that “true it was, that God had endowed His Majesty with excellent Science, and great endowments of nature; but His Majesty was not learned in the Laws of his Realm of England and causes ….. are not to be decided by natural reason but by the artificiall reasons and judgment of Law, which …. requires long study and experience …..”. Three years later, in the Case of Proclamations 1610, James’s claim to be entitled to legislate without Parliament was equally firmly rejected by Coke and his fellow judges. Finally, dismissed from office by James I, Coke became a thorn in the royal flesh as a MP, and obliged the King to accept the Petition of Right, which precluded the Executive from raising taxes without Parliamentary approval. Further royal backsliding led to the execution of James I’s son, Charles I, and in turn to the expulsion of his son, James II, after which Parliament invited James II’s daughter, Mary, and her Dutch husband, King William III, to rule on terms that they expressly accepted, as they did, the confined roles of constitutional monarchs. On their death, this was underlined by the Act of Settlement 1701, which enshrined the judicial security of tenure and legal independence which the British judiciary has retained to this day.

10. How and where the balance is struck between, and controls operate to constrain, the different powers of the state will differ from system to system. Tradition and cultural factors are always important when assessing realities. Most systems have constitutions which look, on paper, as if they should enshrine a healthy balance, and a full protection of individual rights[5]. Many of the relevant constitutions fail in practice to afford any such protection. I read that in a recent retirement speech, Mr Justice Robert Tang voiced great confidence, which I share, in Hong Kong’s judicial independence, but said that the rule of law depended on the community insisting on it and on the public exercising “eternal vigilance” to uphold the freedom of the press and other freedoms. That epitomises the cultural element. He warned that “protean power” unless adequately controlled by human rights law, can be misused and be oppressive.

11. In contrast to Hong Kong, in the United Kingdom we have no written constitution, though we have a few quasi-constitutional laws, starting with Magna Carta, continuing with some fundamental 17th to early 18th century statutes and supplemented recently by the Human Rights Act 1998, the Constitutional Reform Act 2005 and the Devolution legislation relating to Scotland, Ireland and Wales. In classic Dicyean theory, the Westminster Parliament retains in legal theory power to do everything, except, as one wit once said, to turn a man into a woman. But in practice its exercise of its power is heavily constrained by a cultural understanding of the importance of an independent judiciary in interpreting legislation, protecting individual rights, ensuring equal treatment before the law and reviewing executive action. This is underpinned by the very important presumption of legality[6], that is the power of the presumption that Parliament cannot have intended to legislate unfairly or contrary to fundamental rights or the rule of law. More recently, this has been supplemented by the presumption that Parliament cannot, without express words, have intended to derogate from one of the semi-constitutional statutes which I have mentioned. Modern judges have left open whether in an extreme case even Parliamentary sovereignty might have to yield to the rule of law. A current appeal to the United Kingdom Supreme Court may indeed require this point to be decided[7]. In a statue governing The Investigatory Powers Tribunal (which has jurisdiction to examine the conduct of the secret service) Parliament included a provision that: "Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court." One question was argued is whether Parliament can do that. If no court has the power to interpret or decide what law is, is it really law at all?[8] In summary, we can, in the United Kingdom talk of the rule of law, even though occasionally any country may in some respect fall short in its observance.

12. Hong Kong is subject to the “One Country, Two Systems” principle enshrined in the Preamble to the Basic Law. The principal difference between the two systems lies in the area which I am addressing. Chief Justice Zhou of the Supreme Court of China reportedly highlighted this difference in a speech on 14 January 2017, when he said of the Chinese system:

      “We should resolutely resist erroneous influence from the West: ‘constitutional democracy,’ ‘separation of powers’ and ‘independence of the judiciary’ ……We must make clear our stand and dare to show the sword.”

13. While in Singapore earlier this year, I was also able to hear an informative and open question and answer session involving the Prosecutor General of China, then quite recently appointed to his office. He was asked by the Solicitor General of Singapore about the difference between the Chinese and Western understanding of the rule of law. His answer (as translated) was that this was a very special and challenging question, but that the critical distinction was the Chinese Communist Party’s leadership role; China was a single party system and the Constitution as changed this year incorporated that leadership. The Procurator General went on to note that every country’s legal system had its own characteristics.

14. In addressing a question about Chinese characteristics and the balance between the Party’s Charter and the laws, he replied that the Party’s leadership and the laws were fully aligned, that if someone was unable to implement the Party’s requirements, that means that they were not enforcing the law, and that the Party’s Charter was China’s constitution and rules and must be above other laws. If that means that the Party can determine what the law is, then we may perhaps equate the Party with a supreme lawmaker like Parliament in the United Kingdom. If it means that the Party can interpret the law which it creates or can influence judicial decisions interpreting the law, that is different, because neither Parliament nor the Executive in the United Kingdom has any right or power to determine the meaning of any law that Parliament passes. Interpretation and application of the law are for the courts. That is central to the separation of powers. The Prosecutor General did not explicitly address the separation of powers in mainland China, but his remarks point in the same direction as those of Chief Justice Zhou in this area.

15. The Basic Law gives Hong Kong a high degree of autonomy, together with “executive, legislative and independent judicial power, including that of final adjudication” to be exercised “free of any interference”: see Chapter I article 2, Chapter II article 19 and Chapter IV article 85. Individual rights are both formally and fully protected by Chapter III. The Court of Final Appeal has in this connection established a firm role, which includes the recognition and exercise of

  1. power to interpret measures so far as possible consistently with the rights guaranteed by the Basic Law,
  2. power to strike them down pro tanto if that does not prove possible,
  3. power to interpret the Basic Law itself, subject only to the special feature of article 158 relating to its interpretation, to which I will come.

16. I am an outsider on the Hong Kong scene, though I look back to long periods spent in practice here in the 1980s and early 1990s and follow from afar the legal scene. I am of course aware of recent concerns about the risk of dilution of the rule of law as understood in Hong Kong. It is not for me as an outsider and a recently retired member of the UK Supreme Court to expand on or debate such concerns. What I one can say is that it should be a matter of considerable concern that the concerns are so numerous and come from responsible commentators. I have already set out the terms in which Mr Justice Tang spoke. And forceful concerns were expressed very recently on Tuesday 4 December 2018 in the United Kingdom Parliament by the Minister for Asia and the Pacific, Mark Field, as well as in a full-page article in the Financial Times – not, I hasten to add, written by the FT journalist, the withdrawal of whose work visa and the refusal of whose re-entry to Hong Kong were only one subject-matter of the concerns expressed. What is clear is that the concerns are in no way directed at the quality and independence of the Hong Kong judiciary. The UK Supreme Court has the greatest respect for that system and regularly cites and applies judgments of the Court of Final Appeal (“CFA”).    The concerns expressed relate rather to the way in which the law is invoked, at times before matters can in practice reach any court. For this reason, they underline the need, which Mr Justice Tang identified, for the spirit of the rule of law to be accepted and applied across the whole community. The rule of law underpins Hong Kong’s way of life and success. Even the perception of concerns about it or risks to it in Hong Kong could fundamentally damage both.

17. Looking more generally, at the Hong Kong legal system, it is obvious is that it has two special features, both arising from roles recognized in the Basic Law as belonging to the Chinese National People’s Congress Standing Committee. First, under article 18 that Committee may, after consultations with the Standing Committee for Hong Kong and with the Hong Kong government, add to (or delete from) a list of mainland Chinese laws in Annex III which shall be applied in Hong Kong. Second, under article 158(1) that Committee has a power of interpretation of the Basic Law. Article 158(2) then records that the Committee “shall authorize” the Hong Kong courts, in adjudicating cases, to interpret “the provisions of this Law which are within the limits of the autonomy of the Region”, and article 158(3) goes on to provide further that such courts may, in adjudicating cases, also interpret other provisions.

18. In the latter case, this is subject to the important proviso that if a need arises

     “to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee ….”.

19. The intention of the drafters of these provisions is unknown. There was at least an argument that article 158(2) involved a full and outright delegation. This would have meant that the only scope for Standing Committee interpretation was in circumstances outside Hong Kong’s autonomy falling with article 158(3), and perhaps also that any interpretation was dependent on a request being made by a Hong Kong court. The position then would have equated with the procedure under which national courts may make preliminary references to the Court of Justice of the European Union. However, any such analysis was dispatched by the CFA long ago in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 and Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211.

20. The Standing Committee also established its power to intervene independently of any CFA request following the decision in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4. At the request of the Hong Kong government, it issued its first interpretation under article 158(1), and thereby gave article 24(2)(3) of the Basic Law (the requirement that mainlanders apply for a permit to enter Hong Kong) read with article 24(2)(3) (defining those with permanent residency and right of abode in Hong Kong) a different meaning to that which the Court of Final Appeal had adopted. The Standing Committee said that the “relevant provisions concern affairs” which are the responsibility of the Central People’s Government and its relationship with Hong Kong, that the CFA should itself therefore have sought an interpretation under article 158(3), and that the CFA’s interpretation was “not consistent with the legislative intent”.

21. A common lawyer might identify with this as a description of the proper place of interpretation. But common law and mainland understandings of interpretation do not coincide, as the Court of Final Appeal noted when refusing permission to appeal in Yau Wai Ching v Secretary of Justice [2017] HKCFA 54 (the oath-taking case). It said (para 35) that:

     “The exercise of interpretation of the Basic Law under PRC law is one conducted under a different system of law to the common law system in force in the Hong Kong Special Administrative Region, and includes legislative interpretation which can clarify or supplement laws.”[9]

Despite this expanded mainland notion of interpretation, the Court of Final Appeal also confirmed that any interpretation

     “declares what the law is and has always been since the coming into effect of the Basic Law on 1 July 1997.”[10]

A contrary argument, that an interpretation that changes or extends the Basic Law as it would otherwise have been construed can only operate prospectively was, it appears, repeated in Chief Executive v President of the Legislative Council and Nathan Law Kwun Chung HCAL 223/2016, paras 21-22, now under appeal to the Court of Appeal. Logically, one might think that there was a binary choice – either something is an interpretation and binds or it has no effect, even prospectively. But then of course the question arises, who decides what constitutes an interpretation: if the Standing Committee issues what it calls an interpretation, is it open to any other categorization?

22. Ng Ka Ling and the subsequent cases to which articles 18 and 158 have given rise have been comprehensively commented in three studies:

  1. one by Sir Anthony Mason, a judge on the CFA, entitled The Rule of Law in the Shadow of the Giant: The Hong Kong Experience (2011) 33 Sydney Law Review 623,
  2. the second by an Associate Professor at Hong Kong University, Eric C Ip, entitled Constitutional Competition Between the Hong Kong Court of Final Appeal and the Chinese National People’s Congress Standing Committee. A Game Theory Perspective, and
  3. the third by Jaako Husa, “Accurately, Completely, and Solemnly”: One Country, Two Systems and an Uneven Constitutional Equilibrium (2017) 5 The Chinese Journal of Comparative Law 231.

23. Sir Anthony places article 158 in the context of the Constitution of China, under which the Hong Kong Basic Law is one of many laws governing different regions, all subject to such a power of interpretation. He recognizes the potential for tension, and in this respect notes the differing mainland and common law approaches to interpretation. A distinction between final adjudication and interpretation marks, as he also recognizes, “a clear departure from the traditional separation of powers integral to the rule of law in a common law system”. But, after analysis of the caselaw up to 2011, he concluded that “it does not necessarily follow that it erodes the values that the traditional conception of the rule of law is designed to support”. Sir Anthony’s was a traditional jurisprudential analysis.

24. A different psychological approach was taken by Eric C Ip in his later study. In agreement with Sir Anthony, he notes that “despite the ambiguity of the Basic Law and the ‘One Country, Two Systems’ formula”, there has been no open collision between the CFA and Standing Committee, and employs a game theory perspective to argue that “the successful coordination between the two resulted from the strong aversion of the Court and the Standing Committee to constitutional crises, as well as from the fact that neither entity was capable of credibly signaling its commitment to an aggressive strategy all the time”. I am certainly not going to get into, or comment on, the suggestion that the caselaw was actually motivated in the way that Eric C Ip suggests, though a degree of sensitivity to the inter-relationship of different constitutional institutions may by itself be seen as a virtue: see paragraph 28 below.

25. Like the first two authors, the third author also recognizes the power of interpretation as the interface of the very different mainland Chinese and Hong Kong systems. Equilibrium between the two systems depends, in his view, on what he describes as judicial restraint by the Standing Committee in relation to Hong Kong (one might perhaps say restraint in relation to Hong Kong judicial affairs) and political restraint by Hong Kong. Because of the timing, the third author is the only one to address the most recent interpretation by the Standing Committee. This related to the deliberately incorrect and no doubt provocative manner in which two elected legislators failed to take the oath required under article 104 of the Basic Law, followed by steps to disqualify them and what the author describes as “colourful actions and happenings”. The author’s analysis is that

     “These were too much for Mainland China to take, and, accordingly, the Standing Committee provided unsolicited interpretation of Article 104 ….”

26. The evident effect of the interpretation is that the taking of the required oath in a lawful manner is a one-off act in the sense that an oath-taker who deliberately (rather than by mistake) fails or refuses to take it correctly or (it appears) fails “sincerely [to] believe in” it incurs immediate disqualification, without opportunity for re-taking. It was so held in subsequent proceedings by all courts, including the Court of Final Appeal, when refusing permission to appeal to itself[11]. All the courts also considered that, even without the Standing Committee’s “unsolicited interpretation”, they would, applying presumably common law methods of interpretation, have given article 104 the same strict effect as the Standing Committee gave it. The Standing Committee could on that basis have entrusted the matter to the domestic judicial process.

27. The Standing Committee’s power of intervention and interpretation is clearly a special factor on the Hong Kong scene. It introduces a potential element of uncertainty into the law. However, there is no sign that its use or effect has to date undermined fundamentals of the legal system in Hong Kong, still less affected the robust independence of the Hong Kong judiciary. Like the sovereign power of Parliament in the United Kingdom, the power of interpretation has in practice also been exercised rarely. Only in the most recent case has the Standing Committee’s intervention by way of interpretation been unsolicited by either the Hong Kong government or courts. The robust independence of the Hong Kong judiciary was certainly notable in a case decided not long after the first interpretation, Director of Immigration v Chong Fung Yuen (2001) 4 HKFCA 211. The CFA concluded that it was for it to interpret the character of the Standing  Committee’s interpretation of articles 22(4) and 24(2)(3), and that this interpretation did not apply to article 24(2) alone when no issue arose under article 22, that no question of international affairs or relations was involved and that the appeal could and should therefore be dismissed, without any further reference to the Standing Committee. That judgment, importantly, did not itself elicit any interpretation by the Standing Committee. Yau Wai Ying is also notable for its very explicit discussion by the Court of Final Appeal of the implications of the power of interpretation, locating it firmly within the Basic Law, and also locating the Basic Law firmly within the terms of article 67(4) in the Constitution of the PRC.

28. What is evident is the need for a careful respect on all sides of the different roles inherent in any constitutional set-up. Domestic judges are as conscious as anyone that they are one element of the delicate balance which needs constantly to be struck and maintained between the three pillars of state[12]. They are acutely conscious of the importance of the three pillars of state working in a harmonious balance. In the UK context, Lord Hope put this well in Attorney General v Jackson (the Hunting Act case)[13] when he quoted Dicey’s comparison of “the sound and lasting quality” of “the delicate balance between the various institutions of state to the work of bees when constructing a honeycomb, and said that this “is maintained to a large degree by the mutual respect which each institution has for the other”.  In the Hong Kong context, it seems self-evident that the Basic Law, with the explicit recognition in its Preamble of the principle of “One country, Two Systems” is built - and depends for its success - on the same premise of mutual respect.

29. Assuming that the basic structure is there to give effect to the rule of law, what are on a day to day basis the principal threats? There are three points I would make. First, even in established democracies, mutual respect is a pre-condition that needs constant vigilance. The role of an independent judiciary is not always well-understood or well-received by politicians or the press. In the United Kingdom, Prime Minister Cameron commented on a judgment of the ECtHR (condemning the UK’s blanket ban on prisoner voting) as making him want physically to vomit. In the United States, we have had Presidential references, following judgments which the President did not like, to a “so-called judge” or, more recently, to “an Obama judge”. Both happily elicited well-judged responses, in the latter case by Chief Justice Roberts of the US Supreme Court himself, saying:

      "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."

30. In the United Kingdom, when in 2016 the Administrative Court decided at first instance in Gina Miller v Secretary of State for Exiting the European Union that Parliamentary approval was necessary before the Government served on fellow members of the EU an article 50 notice stating that the UK intended to leave EU, the Daily Mail online printed photographs of the three judges with the caption “Enemies of the People”, together with disgracefully irrelevant information about the private life of one of  the judges. Happily, the general reaction to this suggested a general public feeling that it went far too far, and the reaction when the Supreme Court upheld the result by 8 to 3 was very different - and in the case of the Daily Mail even humorous since it published photographs of the three dissenters with the caption “Friends of the People”.

31. Happily, I know of nothing equivalent in Hong Kong; and, happily also, the press in general fills a much more positive role than this in the context of the rule of law. The press, together with a number of NGOs and some public-spirited individual commentators, have a vital function in underpinning respect for and observance of the rule of law. They investigate and publicise abuses or excesses in official or private behavior. In European legal terms, they are “public watchdogs”. They take risks and in a real sense “go over the top” for the public benefit in the course of so doing. They are there to provoke interest and of course sell copy - without which we would have no press at all. Occasionally, as in the Gina Miller case, they may appear to go too far over the top. But it is important that officialdom should not over-react in response. The inhibiting of a free press would be far more detrimental to the rule of law than the occasional excesses of a free press could ever be.

32. A second threat, even in the most well-established democracies, is that the executive may, while paying lip-service to the rule of law, fail in practice to live up to its ideals, and may secretly even subvert them. In several East European countries today, we are seeing significant and worrying back-sliding by governments in their attitudes to and observance of the rule of law – including attempted interferences with the judicial system in Poland, such as led to the recent interim order of the European Court of Justice to which I have referred, and measures directed in Hungary at an independent university whose programme was evidently not to the government’s liking.  Governments, or their agencies, sometimes see interests of state as over-riding. Clauses 39 and 40 of Magna Carta remain in force to prohibit the most egregious examples of this. Arbitrary arrest, the unlawful use of force and invasion of property without legal warrant subject to legal control (clause 39) are all characteristics of conduct committed by the executive against ordinary citizens. To no one should right or justice be sold, denied or delayed (clause 40). No system complies with the rule of law, if it infringes these fundamentals. As mentioned already, they are today of course supplemented by rights such as freedom of expression, association and religion, all also jealously preserved in the text of Hong Kong’s Basic Law.

33. Sadly, as I have indicated, breaches of these principles still sometimes occur, but hopefully, where they occur, states can still be brought to account by ordinary citizens, by NGOs or journalists or even in international fora. The United Kingdom was itself found wanting by the ECtHR in its inhuman treatment of detainees in Northern Ireland during the troubles which lasted from 1969 until the Good Friday Agreement of 10 April 1998. The United States during the George Bush Administration conducted a “war on terror” involving a purported redefinition not only of what constitutes “war”, but also of torture, accompanied by forced rendition and a purported disapplication of the Geneva Conventions to detention in Guantanamo Bay. In the United Kingdom, we had recently in the Supreme Court a case brought by Mr Belhaj and his wife, Ms Boudchar against the Head of the British Secret Service and others including the former Foreign Secretary, Jack Straw[14]. It related to the alleged unlawful rendition of Mr Belhaf and his pregnant wife from the Far East to the tender care of Colonel Ghadaffi’s Libya by the United States with the complicity of the UK, and their alleged torture or mistreatment en route and after arrival in Libya. We rejected the UK government’s argument that the claims were non-justiciable, referring inter alia to the common law’s long-standing prohibition of such conduct. Unless a legal system offers effective protection against executive abuses of this nature, it cannot claim to involve the rule of law.

34. A third risk is more insidious. It is the use of legal instruments or powers in the law in a way which may be difficult to fault when regard is had to their terms, but which is in practice excessive. This is a particular problem in common law jurisdictions which have inherited laws expressed in general terms (such as those involving breach of the peace, contempt or sedition) or broadly expressed sentencing powers. In the United Kingdom culture from which they originate, such weapons may in practice be used rarely or with restraint. But in other contexts their terms may enable prosecuting authorities to use them in a manner which is less restrained. In 1999 I attended the Commonwealth Law Conference in Kuala Lumpur, where the Far Eastern Economic Review journalist, Mr Murray Hiebert had just gone to gaol to serve a prison sentence of three months, reduced on appeal to six weeks, imposed for alleged contempt of court consisting of an article which had been checked before publication by two other lawyers and in respect of which he had offered a full explanation and his regret if in any way his article had given a misleading impression. The almost universal view was that this was an excessive misuse of a potent legal weapon, which, in its original United Kingdom setting, would never have been so used. Sadly, in that case it was of course deployed both by the prosecuting authorities and the judiciary. All three pillars of the state need to respect the basic tenets of the rule of law. Even where the judicial system can be relied upon to address any administrative abuse or excess shown before it, that cannot alter the fact that a good deal of time may have elapsed and harm have been occasioned before any corrective court action.[15]

35. Ultimately, as often with written constitutional instruments, the rule of law depends not on the bare words, but on mutual subscription by all involved to the underlying spirit of the law. That appears particularly the case with the Basic Law, with the special features which I have examined. The core elements of the rule of law, a settled legal system to which all are equally subject with adjudication by independent judges, are clearly well-established in Hong Kong both by the Basic Law and in practice. But there is, as I have indicated, more to the rule of law than that. It involves a culture of constant vigilance to ensure that the protection afforded complies with basic standards of equity and fairness, that law-makers and the executive, as well as the judiciary, achieve a fair balance between interests of state and individual rights. Happily, in Hong Kong, and subject only to the rare possibility of interpretation by the Standing Committee, it remains the independent and highly competent Hong Kong judiciary on whom the responsibility rests for avoiding and curbing any excesses in this regard.

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[1] These were identified by Lord Bingham at the very outset of a famous work, The Rule of Law (2010) (Penguin Adult HC/TR).

[2] The Act provides that nothing in its terms adversely affects “(a) the existing constitutional principle of the rule of law”, and places on government ministers, and in particular on the Lord Chancellor (that is the Minister of Justice) a specific duty to respect it.

[3] “C’est une expérience éternelle que tout homme qui a du pouvoir est porté à en abuser …. Pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir”. Lord Acton exposed the full extent of the risks by adding: “All power corrupts. Absolutely power corrupts absolutely”.

[4] Metaphysics of Morals, Doctrine of Law.

[5] “Every banana republic has a bill of rights”, the late Justice Antonin Scalia once said, irreverently. 

[6] R v Secretary of State for the Home Department (ex p Simms) [1999] UKHL 33; [2000] 2 AC 115.

[7] R (ex p Privacy International) v Investigatory Powers Tribunal UKSC 2018/0004, heard on 3rd/4th December 2018.

Case ID: UKSC 2018/0004

[8] A possible answer to this point in relation to the Investigatory Powers Tribunal may be that, despite the secrecy of its proceedings, it falls itself to be regarded as a court. But the same theoretical question could then still arise if Parliament attempted to exclude any judicial review or appeal in respect of the decisions of a non-judicial body.

[9] Citing Director of Immigration v Chong Fung Yuen [2001] HKCFA 48, pp. 222J-223A.

[10] Lau Wai Ching, para 35, citing Lau Kong Yung, p.326D-E.

[11] Yau Wai Ching v Secretary for Justice [2017] HKCFA 54.

[12] Montesquieu thought this problem could be solved by treating the judges as the mere mouth of the law (“la bouche de la loi”), i.e. simply giving effect to what the legislature had already determined. Even that highly distinguished modern legal philosopher, Professor Dworkin, postulated that an admittedly hypothetical perfect judge, who he called Hercules, would, if he strained his mind enough, always be able to identify the one “correct” answer to any problem. But matters are not and cannot be so simple in the real world, and today we recognize this overtly. Judges have to make choices on issues which the legislature has overlooked or left unclear. Different judges may make different choices. The antidote is that judges reason and explain their decisions publicly. There can be an appeal or appeals to a collegiate court where a dominant view or, very often, a synthesis of views will emerge. The public and press can comment on the ultimate outcome, and, in the last analysis, the legislature can often intervene to alter an outcome, with which society as represented in it is in fundamental disaccord. In all these ways the judiciary is accountable to society as a whole.

[13] [2005] UKHL 33; [2006] 1 AC 262, paragraph 125.

[14] Belhaj v Straw and others [2017] UKSC 3.

[15] As to sentencing, the energy, diligence and persuasiveness of a British academic, Professor Thomas, has in my legal lifetime turned sentencing from a gut reaction exercise into something approaching a science. In Hong Kong the subject is, I note, the subject of at least one well-established study. The principle has also recently been underlined that sentencing should respect the guidelines in force at the date of commission of an offence, even if the court may announce that, for future offending, different sentencing parameters may apply: see Secretary for Justice v Wong [2018] HKFCA 4; Secretary of State for Justice v Leung, Wong and Others [2018] HKFCA 43. That is a principle inherent in the rule of law.

 

Speech by The Honourable Mr Justice Kemal Bokhary, GBM, JP Press here

Speech by Ms Gladys Li, SC, JP Press here

Welcoming Speech by Mr T L Tsim Press here