The first edition of this booklet was published in 1991. Its stated aim was to help the public understand how our legal system works. It stressed the importance of the rule of law to Hong Kong's past success and future promise and emphasised the role that an informed public could play in ensuring the continued vitality of the legal system.
2007 marked the tenth anniversary of the establishment of the Hong Kong Special Administrative Region and the constitutional framework of Hong Kong's legal system has changed significantly since that first edition. But under the Basic Law of the Region, the laws previously in force have been maintained and adherence to the rule of law, buttressed by an independent judiciary, has remained a constant. With the establishment of the Court of Final Appeal in 1997 the power of final adjudication is now exercised in Hong Kong and the Basic Law provides constitutional protection for the rights and freedoms of Hong Kong's residents.
I hope this latest edition of this guide, like its predecessors, will help explain our legal system and promote an understanding of its importance to us all.
Wong Yan Lung, SC
Secretary for Justice
The rule of Law
Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008
The "rule of law" refers to some of the fundamental principles of law that govern the way in which power is exercised in Hong Kong. The rule of law has several different meanings and corollaries. Its principal meaning is that the power of the government and all of its servants shall be derived from law as expressed in legislation and the judicial decisions made by independent courts. At the heart of Hong Kong's system of government lies the principle that no one, including the Chief Executive, can do an act which would otherwise constitute a legal wrong or affect a person's liberty unless he can point to a legal justification for that action. If he cannot do so, the affected person can resort to a court which may rule that the act is invalid and of no legal effect. Compensation may be ordered in the affected person's favour. This aspect of the rule of law is referred to as the principle of legality.
One corollary of the principle of legality can be summarised as equality before the law. It is fundamental that all persons, regardless of race, rank, politics or religion, are subject to the laws of the land. Further, the rule of law requires that the courts are independent of the executive. This independence is crucial if impartial rulings are to be given when the legality of acts of government falls to be decided.
Legality and equality before the law are two fundamental facets of the rule of law. But the principle demands something more, otherwise it would be satisfied by giving the government unrestricted discretionary powers. A further meaning of the rule of law, therefore, is to be found in a system of rules which restrict discretionary power. To this end the courts have developed a set of guidelines aimed at ensuring that statutory powers are not used in ways which the legislature did not intend. These guidelines relate to both the substance and the procedures relating to the exercise of executive power. An example of the former is where a court concludes that a decision which purports to be authorised by a statutory power is plainly unreasonable and cannot have been envisaged by the legislature. An example of the latter is where a decision has been made without according the party affected the opportunity of being heard in circumstances where the legislature must have envisaged that such an opportunity would have been given. In both cases a court would hold that the decisions were legally invalid.
TheBasic Law ensures that the legal system in the HKSAR will continue to give effect to the rule of law, by providing that the...