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01 - 15 05:00

Upholding the rule of law

【明報專訊】SINCE Hong Kong's handover, the deformed political system has led to incessant internal strife, leaving the government sadly hamstrung. And with the mainland authorities involving themselves ever more deeply and widely in Hong Kong's internal affairs, the situation is getting increasingly alarming. What is comforting is that the judiciary and its work have been able to meet public expectations and remain relatively independent.

Speaking at the opening of the legal year yesterday, Chief Justice Geoffrey Ma Tao-li discussed the role and functions of the courts. His speech is worth noticing since we can see in it his insistence on the rule of law and his expectations of the judiciary.

Ma said courts and judges only deal with the legal issues arising in the disputes that come before them, and although the disputes may have political, economic or social consequences, the courts will only consider the legal issues that divide the parties concerned. He pointed out that the Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and the judiciary's constitutional role is the adjudication of disputes that come before the courts in accordance with the law. This clear enunciation of his convictions gives the public greater confidence in Ma's ability to lead the judiciary in the defence of judicial independence.

While Hong Kong's governance leaves much to be desired, it is reassuring that the rule of law has been upheld, and the law has not been reduced to a governing tool for the powers that be.

If, in the spirit of the rule of law, we examine the current discussions on political reform, we will find that the views put forward by some are consistently accused of violating the Basic Law. Such accusations give cause for concern since they deviate from the rule of law. For instance, while it is debatable whether civil nomination should be accepted as valid for the nomination of Chief Executive candidates, the public finds it hard to swallow the peremptory dismissal of the idea as "against the law". After all, there is no specific provision against civil nomination in the Basic Law and the relevant Interpretations and Decisions of the Standing Committee of the National People's Congress.

The rule of law resides not only in the law itself, but also in an effective enforcement mechanism, which must ensure the independence of judges. Ma said that, since Hong Kong's handover, the appointment of judges has not had any problems, and the recommendations made by the Judicial Officers Recommendation Commission have never been rejected by the Chief Executive, nor has the Chief Executive ever sought to influence the Commission's recommendations in any way. The quality of judges is very important. To prevent the rule of law and the judiciary's independent operation from being undermined, Hong Kong must cherish its judicial appointment system.

Another speaker at the opening ceremony of the legal year was Secretary for Justice Rimsky Yuen Kwok-keung, who also talked about the rule of law. "Deliberate attempts to act in breach of the law, even for causes which may sound noble, should not be encouraged," he said. Evidently, he was making a dig at the Occupy Central movement. It was not surprising that Yuen should say things like this, as he was one of the government officials responsible for the political reform consultation exercise. However, whether Occupy Central will take place depends very much on whether there are unreasonable restrictions on the nomination of candidates for the Chief Executive election by universal suffrage, which is a political question. This legal year can be expected to be highly politicised, as is in keeping with the general atmosphere of Hong Kong today. We hope that, legally as well as politically, Hong Kong will be able to take positive steps forward by tapping the collective wisdom of the community.

明報社評 2014.01.14﹕港事紛亂不寧 法治更形重要









incessant﹕never stopping

enunciation﹕an idea that is clearly expressed; a formal statement

peremptory﹕expecting to be obeyed immediately and without question or refusal

dig﹕a remark that is intended to annoy or upset somebody

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