Wednesday, January 15, 2014, 07:55
Costs and benefits of the rule of law
By Ho Lok-Sang

Hong Kong people value the rule of law, and Hong Kong people are not alone. The rule of law is one of the universal values cherished by humanity today. The reason is simple: Without the rule of law, we could be victims of arbitrary decisions at the whims of those who wield power, or those who seek an advantage using unscrupulous means, or those who do not know what fair play is.

The hallmarks of the rule of law are “due process” and “procedural justice”. Many Hong Kong people are unhappy about the latest decision by the Court of Final Appeal, which ruled that new immigrants only need to have stayed for just a year to qualify for Comprehensive Social Security Allowance. Some people ask: If the judiciary is independent, then who is going to check against power abuses by the judiciary?

Costs and benefits of the rule of lawLike most good things in life, the rule of law comes at a price.  While we all accept the rule of law, it does not mean that we all like the results of a particular court decision. The law provides us with opportunities for appeal, but there has to be an end to appeals. That is why we have the Court of Final Appeal (CFA).

The CFA has now handed down a decision, and we have to accept it — unless we deem the decision to be so terrible that we want to take the matter to the Standing Committee of the National People’s Congress (NPCSC), which can overrule it. This move, unfortunately, again comes at a price, which is that it may undermine the rule of law in Hong Kong. If we really believe the benefit of overruling the CFA decision is greater than the cost in terms of undermining the rule of law, we can do that. But generally, Hong Kong people do not want the SAR government to take the initiative of referring the matter to the NPCSC; nor do Hong Kong people want the NPCSC to arbitrarily overrule any decision by the CFA. That would be construed as the executive intruding into the judiciary, or the central government intruding into SAR’s internal affairs.

Whether Hong Kong people should attempt to overrule the CFA’s decision is a delicate matter that requires careful weighing of costs and benefits. However, there should never be worry over power abuses by the judiciary, because the judges cannot make decisions that deviate from accepted principles and accepted procedures.  It is these accepted principles and procedures that really “check against power abuses” by the judges. This is the crucial difference between the rule of law and the rule of man.

With few exceptions, no litigant can tell the result of any litigation. In a place where the rule of law is upheld, the only certainty is that the standards and procedures of the law will be adhered to closely. Procedural justice means that the procedures will not bias the results in favor of any litigant. “Behind a veil of ignorance” — i.e., forgetting our identities, when the standards and procedures are what we as rational decision makers would like to have in place, we can say that we have procedural justice.

Hong Kong ranks very high according to the World Justice Report 2012-2013. Among 97 countries/jurisdictions, Hong Kong ranks second in order and security (the United States at 22nd); eighth in criminal justice (the US at 26th); ninth in absence of corruption (the US at 18th); 10th in open government (the US at 13th); 14th in regulatory environment (the US at 19th); and 17th in civil justice (the US at 22nd).  Among all these aspect of justice, Hong Kong is ahead of the US, which is only slightly ahead of Hong Kong in fundamental rights (the US at 25th; Hong Kong at 31st).

If we hold the rule of law so dearly, it is important that we protect it in every way. Any arbitrary deviation from the rule of law is a precedent to future arbitrary deviations from the rule of law. This time it could be to our advantage. At other times it could be to our disadvantage. Do we want to open ourselves to such risks?

My reading of the Basic Law is that “civil nomination” is a blatant deviation from what is provided in the Basic Law. I am disappointed that the Secretary for Justice Rimsky Yuen would not explicitly tell the public that “civil nomination” deviates from the Basic Law. Unless he really thinks that “civil nomination” can be accommodated by the Basic Law he is raising false expectations.

According to Wikipedia, “A committee is a type of small deliberative assembly that is usually intended to remain subordinate to another, larger deliberative assembly.” I cannot see how an honorable judge in a court of law could interpret the “a broadly representative nominating committee” to be the whole body of the electorate.

My objection to “civil nomination” is not because it is bad but because it is illegal. If we bend the law this time in our favor, we risk someone bending the law in future against our favor. If we want the rule of law, we have to accept its consequences, whether we like them or not.

The author is director of the Center for Public Policy Studies at Lingnan University.