16 September 2019
Chief Executive Carrie Lam pledged to build more courthouses in her policy address. Photo: CNSA
Chief Executive Carrie Lam pledged to build more courthouses in her policy address. Photo: CNSA

Having more courthouses does not ensure rule of law

A heated discussion has been under way over whether Hong Kong is gradually turning from a society governed by the “rule of law” into one that is governed by the “rule by law”.

The most fundamental difference between the two is that while the former stresses the use of law and the judiciary as a leverage against the executive power of the government, the latter puts emphasis on the importance of the executive branch, following the law and doing things by the book when it comes to governance, regardless of whether the law itself is actually just and can truly protect the rights and freedom of the people.

As such, the most basic and important criterion for judging how a society is governed is not the extent to which the court is making its decisions in accordance with the law, but rather, the way in which the executive branch is making and using the law in the course of governance.

In her recent policy address, Chief Executive Carrie Lam Cheng Yuet-ngor reiterated her absolute confidence in the rule of law and the judicial independence of our city, on the grounds that they are guaranteed by the Basic Law and that Hong Kong can always hire good and competent judges from other common law jurisdictions to hear cases in our local courts.

However, she said, her administration is not complacent about that at all. Instead, she has decided to take special measures such as allocating more land for our judiciary to build new courthouses in order to further enhance its efficiency.

True, it is good news for the local legal sector that the government is going to pour more resources into the judicial branch. However, I do have difficulty understanding the rationale behind her notion that our rule of law can be better upheld by building more courthouses.

What has truly given rise to the growing public concern about the regression of our “rule of law” into “rule by law” is not that our judiciary is short on courthouses to hear cases, but rather, the worrying trend in the way our government has been exercising its executive power in recent years.

Unfortunately, our CE has failed to address this fundamental concern in her policy address. Nor did she touch on the issue of whether the Department of Justice (DOJ) was justified in appealing against the sentence of the three student leaders who led the storming of government headquarters in 2014, a highly controversial decision that has provoked widespread backlash from society.

Yet, our CE simply refused to even comment on the issue in her policy address.

Even so, I believe we should still at least give Carrie Lam some credit for her initiatives in reforming our legal aid system by detaching the Legal Aid Department from the Home Affairs Bureau and placing it directly under the Chief Secretary’s Office in order to, as she put it, “underline the independence of the legal aid system.”

But again, there is not necessarily a correlation between restructuring the legal aid system and better legal aid service for our citizens. The key to guaranteeing public access to our legal aid service is to streamline our existing mechanism and to provide sufficient resources. This is something that we will have to continue to review and fight for in the days ahead.

In the meantime, Carrie Lam has also failed to deliver in the policy address her election promise of amending the current Prevention of Bribery Ordinance so as to make it applicable to the Chief Executive as well.

Nor did she answer public calls for reforming the appointment system of the commissioner of the Independent Commission Against Corruption (ICAC) so as to eliminate any potential for the CE’s intervention in the operations of the anti-graft body.

To address this pressing issue, I have drafted a private member’s bill. The ball is now in the government’s court.

This article appeared in the Hong Kong Economic Journal on Oct. 18

Translation by Alan Lee

[Chinese version 中文版]

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Legco member representing the Legal functional constituency (2012-2016) and a founding member of Civic Party