The Rule of Law

The principal meaning of the “rule of law” 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 that would otherwise constitute a legal wrong or affect a person's liberty unless he can point to a legal justification for that action.

It is thus 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.

To restrict discretionary power, the courts have developed a set of guidelines aimed at ensuring that statutory powers are not used in ways that the legislature did not intend. These guidelines relate to both the substance and the procedures relating to the exercise of executive power.

Sources of Law in Hong Kong

National Law

Several national laws of the People's Republic of China apply in Hong Kong by virtue of Article 18 of the Basic Law. Under Article 158 of the Basic Law, an interpretation of a provision of the Basic Law by the Standing Committee of the National People's Congress is to be followed by the courts of Hong Kong in applying the relevant provision.

The Basic Law

Nature of the Basic Law

The Basic Law of the HKSAR was enacted by the National People's Congress in accordance with the Constitution of the People's Republic of China. It is akin to a mini-constitution for the HKSAR. It was promulgated on 4 April 1990 and took effect on 1 July 1997 on the establishment of the HKSAR. All the systems and policies practised in the HKSAR must be based on the provisions of the Basic Law. These include the social and economic systems; the system for safeguarding the fundamental rights and freedoms of its residents; the executive, legislative and judicial systems; and the relevant policies. Furthermore, no law enacted by the legislature of the HKSAR may contravene the Basic Law.

The most prominent feature of the Basic Law is the underlying principle of "one country, two systems" whereby the socialist system and policies shall not be practised in the HKSAR, and the previous capitalist system and way of life is to remain unchanged for 50 years.

Under the Basic Law, all the laws previously in force in Hong Kong (that is, the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the HKSAR legislature. National laws of the People's Republic of China shall not be applied in the HKSAR except for a number of such laws relating to defence and foreign affairs, which are listed in Annex III to the Basic Law.

Relationship between the Central Authorities and the HKSAR

The National People's Congress through the Basic Law authorises the HKSAR to exercise a high degree of autonomy directly under the Central People's Government. The HKSAR enjoys executive, legislative and independent judicial power, including that of final adjudication, in accordance with provisions of the Basic Law. Although foreign affairs relating to the HKSAR are the responsibility of the Central People's Government, the HKSAR is authorised to conduct relevant external affairs on its own in accordance with the Basic Law. The Central People's Government is also responsible for the defence of the HKSAR, but the responsibility of maintaining public order in the HKSAR is a matter for its government.

Fundamental rights protected by the Basic Law

The Basic Law details the fundamental rights, freedoms and duties of the residents of the HKSAR. These rights include the right to equality before the law; freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike; freedom of movement; freedom of conscience; and freedom of religious belief. The Basic Law also guarantees that the provisions of the International Covenant on Civil and Political Rights; of the International Covenant on Economic, Social and Cultural Rights; and of the International Labour Conventions as applied to Hong Kong will remain in force.

The common law and the rules of equity

Common law and the rules of equity are to be found primarily in the judgments of the superior courts in Hong Kong and other common law jurisdictions. The common law's most distinguishing hallmark is reliance on a system of case precedent, not restricted to judicial decisions generated within any single jurisdiction, but case law from all jurisdictions throughout the common law world. Article 84 of the Basic Law provides that the courts of the HKSAR may refer to the precedents of other common law jurisdictions. In addition, the Court of Final Appeal and the Judiciary of the HKSAR are given power to invite judges from other common law jurisdictions to participate in the judicial processes.

International law

Over 200 international treaties and agreements have been applied to Hong Kong. A treaty does not constitute part of Hong Kong's domestic law until given effect by legislation. Nonetheless, it may affect the development of the common law. It may, for example, be resorted to by a court as an aid to interpretation. The rapidly developing rules of customary international law can also become absorbed into the common law.

Shipping and the Basic Law

The Basic Law contains some specific provisions dealing with shipping in Hong Kong. As a result of cooperation between the Governments of PRC and the UK, the autonomous register was set up in 1990, just after the enactment of the Basic Law and well before reunification. Articles 124 to 127 of the Basic Law give authority to Hong Kong to maintain the shipping register, issue related certificates under its legislation and regulate the conditions of seamen, guarantee access to the port for all merchant ships, and guarantee that private interests in shipping fields may continue to operate freely.

Arbitration law of Hong Kong

Arbitrations conducted in Hong Kong are governed by the Hong Kong Arbitration Ordinance. The Arbitration Ordinance (Cap.609) came into effect in June 2011. It is based on the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law and supplemented by provisions similar to the UK Arbitration Act 1996.  As a result of the reform, Hong Kong currently adopts a unified and self-contained legislative framework which respects parties’ autonomy, limits the court’s powers of intervention to ensure cost-effective  and efficient resolution of disputes by arbitration. The Arbitration Ordinance is updated from time to time to ensure that Hong Kong continues to stay abreast of international developments.

Arbitral awards made in Hong Kong can be enforced in more than 150 State parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  Hong Kong has also entered into reciprocal arrangements with the Mainland and Macao respectively to complete an extensive enforcement network across different jurisdictions.