In Hong Kong, rule of law test under way

There has been much debate in the media recently, on both sides of the protests, about whether the rule of law was being challenged or undermined. Much of it missed the crucial understanding of what the rule of law means – from a Western perspective, at least. 

Even those arguing for the rule of law, but who are against the police, have often failed to distinguish between abuse of the law and a failure of the rule of law. These are different concepts.

Those calling for judges to play their role in putting down the protests and returning Hong Kong to stability, meanwhile, are obviously talking about rule by law, which is also a different concept. 

In any case, Hong Kong is about to get the most vivid test of whether the rule of law is intact here – but it is likely to spawn a new round of controversy and endless debate over what the rule of law means. 

A Judicial Review application to the High Court has found that the government’s mask ban is unconstitutional. The decision will likely be challenged in the Court of Appeal. If necessary, it will go to the Court of Final Appeal, and possibly all the way up to the Standing Committee of the National People’s Congress for a final ruling.

If the ruling is upheld or overturned at any part of this process for reasons other than those stated by the judges themselves, that will be seen as a breach of the rule of law, as understood in its Western sense. It will mean that Hong Kong’s judiciary is not answerable only unto itself.

If it goes all the way to the NPCSC, without any outside interference, then it could be said that the rule of law had remained intact – within Hong Kong, at least. This is even if the NPCSC were to overturn the lower court’s decision, because as far as Hong Kong’s mini-constitution, the Basic Law, is concerned, the rule of its law would have been followed.

Is this likely to satisfy everyone? Of course not. China is developing a legal system on the mainland that is striving to be as much like those adopted by Western democracies (and non-democracies) as it can. But as long as the courts remain subservient to the Party, it will be challenged by Western commentators and judicial analysts as being rule by law, not rule of law. If the NPCSC overturns the Hong Kong court’s decision, howls of indignation can be expected.

A betting person would put smart money on the case playing out like this:

  1. Appeal Court, and the Court of Final Appeal, agree with High Court, saying the ban is unconstitutional.
  2. NPCSC overturns the decision, saying the ban is in Hong Kong’s best interests.

Stay tuned. It’s going to get vitriolic. 

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