Global benchmarks put city near the top of jurisdictions worldwide
When China and the United Kingdom began negotiating Hong Kong’s future in the 1980s, there was skepticism about what would happen to the city’s world-renowned rule of law. Mistrust by the international community endured after the Chinese government proposed the unprecedented “one country, two systems” principle.
The past 20 years have continued to see criticism of Hong Kong’s “failure” to maintain rule of law and judicial independence, but statistics tell a different story.
The World Bank’s Worldwide Governance Indicators project put Hong Kong at a percentile of 94.7 for rule of law in 2015, which means it outranked 94.7 percent of the 113 countries and regions assessed.
In the same year, the United Kingdom was at 93.8 and the United States at 90.4, while Singapore came in at 96.6.
In 1996, a year before Hong Kong’s return to China after 150 years of British rule, the city only scored 68.4.
At a symposium in Beijing commemorating the 20th anniversary of the Basic Law, national legislator Zhang Dejiang said the world-renowned index showed the rule of law in Hong Kong is a proven success.
Other indicators show similar results. In the World Justice Project Rule of Law Index, one of the world’s leading sources of original, independent data, Hong Kong scored 0.77 out of one last year – 16th in the global rankings and third in Asia, behind only Singapore and Japan.
In the Global Competitiveness Report 2016-2017, Hong Kong was the only Asian economy among 138 jurisdictions to be ranked in the top 10 on judicial independence. It was also third among common law jurisdictions.
David Neuberger, president of the UK’s Supreme Court and a nonpermanent judge at Hong Kong’s Court of Final Appeal, said concerns are exaggerated.
There was concern in some quarters about the possible undermining of judicial independence after the central government commented that judges are among the city’s “administrators”, he said.
“The concerns remind me of the worries some UK judges have about the fact that their email address ends with ‘.gov.uk’ – ‘We are not part of the government; we are independent’, they cry.”
Perception vs. reality
During a visit to the UK to promote Hong Kong’s legal system, Rimsky Yuen Kwok-keung, secretary for justice, said the international community should look at the figures, instead of listening to the opinions of some media outlets.
Admittedly, the rule of law has become a very popular topic in Hong Kong, and it often attracts media attention, including overseas,” Yuen said.
“The views expressed through these channels are admittedly very divergent. However, I would invite you to make a distinction between mere assertions on subjective perception on the one hand and objective facts on the other.”
Song Sio-chong, a veteran political analyst and Basic Law expert, said: “It’s not hard to see the strength of Hong Kong’s legal system under the ‘one country, two systems’ principle, especially compared with other developed countries and regions.”
The Basic Law provides a guarantee of judicial independence and rule of law, and the city’s high global ranking can be attributed to a society with world-class order and security and with little tolerance for corruption. The civilized law-enforcement authorities, civil justice, effective access for civilians to legal services and freedom of expression added to the high scores, he added.
The judiciary gained greater independence after 1997 when the Final Appellate Court was moved inside the city boundary, symbolizing the return of judicial power to Hong Kong, he added.
Before and after the Basic Law was promulgated in 1990, the final avenue of appeal for cases heard in Hong Kong was the Judicial Committee of the UK’s Privy Council. To address this anomaly, the Basic Law provided for the establishment of a Court of Final Appeal.
The move, which handed the power of final adjudication to Hong Kong, also raised the level of recognition of Hong Kong’s legal system around the globe, Yuen said.
“During the colonial days, putting aside Privy Council decisions on appeals from Hong Kong, decisions made by the Hong Kong courts were hardly cited by the final appellate courts in other common law jurisdictions,” he said.
“Since the CFA was established, we have seen a significant change in the scenario.”
Moreover, the Basic Law allows judges from other common law jurisdictions to sit on the CFA, allowing the court to draw on their experience and maintain links with other common law jurisdictions, Yuen said.
In terms of transparency, Hong Kong consistently remains in the top 20 economies with low levels of corruption, according to the Corruption Perceptions Index. The city was ranked the 15th least-corrupt place among 176 countries and regions last year, scoring 77 – 13 points behind world leader Denmark.
Legal aid
In addition to quantifiable aspects, day-to-day practices also matter, and the easy access to the courts carries great weight in how rule of law is valued, Song said.
Hong Kong has a robust legal aid system, he added: “In the appropriate circumstances, applicants for judicial reviews will be granted legal aid so they are in a position to challenge administrative action or government policy, with funding provided by the government.”
Meanwhile, people of differing political views have been given legal aid when facing litigation, Song said, including protesters who participated in the “Occupy Central” movement in 2014, and those involved in the Mong Kok riot last year, according to official documents.
Legal reports show that many leading constitutional or human-rights cases have been granted legal aid. In 2016-17, about HK$36 million ($4.6 million) was spent on providing legal aid to applicants for judicial reviews of executive decisions.
The Hong Kong government said: “Safeguarded by an independent judiciary, rule of law ensures a secure environment for people and organizations and a level playing field for business. No one is above the law. Everyone, regardless of race, gender, religion, political affiliation, opinion or position is equal before the law. Private individuals, legal workers and public entities all have the right to access courts to enforce legal rights or defend an action.”
