Hostname: page-component-586b7cd67f-t7fkt Total loading time: 0 Render date: 2024-11-27T20:51:22.577Z Has data issue: false hasContentIssue false
  • English
  • Français

Developing an Index of the Rule of Law: Sharing the Experience of Hong Kong

Published online by Cambridge University Press:  16 April 2015

Benny Y.T. Tai
Benny Y.T. Tai*
Affiliation:
University of Hong Kong
Get access Rights & Permissions [Opens in a new window]

Abstract

The Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

Keywords

rule of law
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 2 , 2007 , pp. 1 - 19
Copyright
Copyright © Faculty of Law, National University of Singapore 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Daniel Kaufmann, Aart Kraay, and Massimo Mastruzzi, Governance Matters IV: Governance Indicators for 1996-2004, May 2005, World Bank Institute Working Papers and Articles <http://www.worldbank.org/wbi/governance/pubs/govmatters4.html>; Taiwo, Olufemi, “Rule of Law: The New Leviathan?” (1999) 12 Can. J.L. & Juris. 151 CrossRefGoogle Scholar; Kautz, Steven, “Liberty, Justice and Rule of Law” (1999) 11 Yale Journal of Law and the Humanities 435 Google Scholar; Dyzenhaus, David, “Recrafting Rule of Law” in Dyzenhaus, David, ed., Recrafting Rule of Law: The Limits of Legal Order, (Oxford-Portland-Oregon: Hart Publishing, 1999)Google Scholar; Mason, Keith, “Rule of Law” in Finn, P. D., ed., Essays on Law and Government Vol. 1, (North Ryde, N.S.W: The Law Book Company Ltd, 1995)Google Scholar; Hutchinson, Allan C. and Monahan, Patrick, Rule of Law: Ideal or Ideology (Toronto; Calgary and Vancouver: Carswell, 1987), p. ix Google Scholar; and March, Norman S., “Rule of Law as a Supra-National Concept” in Guest, A.G., ed., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1968)Google Scholar.

2 Tai, Benny Y.T., “The Development of Constitutionalism in Hong Kong” in Wacks, Raymond, ed., The New Legal Order in Hong Kong (Hong Kong: Hong Kong University Press, 1999)Google Scholar and Cheng, Anne S. Y. and Chen, Albert H. Y., “The Search for Rule of Law in the Hong Kong Special Administrative Region, 1997-2003” in Yiu-chung, Wong, ed., One Country, Two Systems in Crisis (Lanham: Lexington Books, 2004)Google Scholar.

3 See, for e.g., Afrobarometer <http://www.afrobarometer.org/>; Latinobarómetro <http://www.latinobarometro.org/index.php?id=150>; Progress towards Good Governance in Africa <http://www.uneca.org/adf/adf_4_report_final_sml.pdf> and Latin American Public Opinion Project <http://sitemason.vanderbilt.edu/lapop>.

4 See, for e.g., Bertelsmann Transformation Index <http://www.bertelsmann-transformation-index.de/11.0.html?&L=1> and Freedom in the World <http://www.freedomhouse.org/template.cfm?page=15&year=2005>.

5 See, for e.g., Latin American Public Opinion Project conducted by the Centre for the Americas at the Vanderbilt University with funding support from the USAID; and Latinobarómetro developed by the Latinobarómetro Corporation, a private, non-profit institution based in Santiago, Chile, with Chilean academics and politicians from the political science arena as members of its board of directors.

6 See, for e.g., Progress towards Good Governance in Africa developed by the United Nations Economic Commission for Africa; Country Policy and Institutional Assessment conducted by the African Development Bank <http://afdb.org> and Country Policy and Institutional Assessment conducted by the Asian Development Bank <http://www.adb.org>.

7 See, for e.g., Freedom in the World developed by the Freedom House and World Business Environment Survey conducted by the World Bank's Investment Climate and Institute Units <http://info.worldbank.org/governance/wbes/index2.html>.

8 See, for e.g., Bertelsmann Transformation Index developed by the Bertelsmann Foundation; Business Environment Risk Intelligence developed by the BERI S.A.; Country Risk Forecast conducted by the Economist Intelligence Unit <http://www.eiu.com>; and World Markets Online developed by the World Markets Research Centre <http://www.worldmarketsanalysis.com/>.

9 See, for e.g., CIRI Human Rights Dataset <http://www.humanrightsdata.com> developed by David L. Cingranell and David L. Richards; the Political Terror Scale developed by Linda Cornett and Mark Gibney using the annual reports of the Amnesty International and the US State Department Country Reports on Human Rights Practices <http://www.humansecurityreport.info/background/Cornett-Gibney_Political_Terror_Scale_1980-2001.pdf>; and the Governance Indicators for 1996-2004 developed by Daniel Kaufmann, Aart Kraay and Massimo Mastruzzi for the World Bank using a combination of 37 separate data sources constructed by 31 different organisations <http://worldbank.org/wbi/governance/pdf/GovMatters_IV_main.pdf>.

10 See, for e.g., Afrobarometer, Latinobarómetro and Latin American Public Opinion Project.

11 See, for e.g., Bertelsmann Transformation Index, Business Environment Risk Intelligence, Country Risk Forecast by the Economist Intelligence Unit, Freedom in the World, International Country Risk Guide developed by the PRS Group <http://www.prsgroup.com/index.html>, and the World Business Environment Survey.

12 See, for e.g., World Competitiveness Yearbook published by the Institute for Management Development <http://www02.imd.ch/wcc/yearbook/>, Progress towards Good Governance in Africa, Global Competitiveness Report published by the World Economic Forum <http://www.weforum.org/gcp>, and World Markets Online.

13 Tai (Note 2); Cheng and Chen (Note 2); Horlemann, Ralf, Hong Kong's Transition to Chinese Rule, (London; New York: Routledge Curzon, Taylor & Francis Group, 2003), Chapter 6Google Scholar; Chan, Johannes, “Civil Liberties, Rule of Law and Human Rights: The Hong Kong Special Administrative Region in its First Four Years” in Siu-kai, Lau, ed., The First Tung Chee-hwa Administration: The First Five Years of the HKSAR (Hong Kong: Chinese University Press, 2002)Google Scholar.

14 Kuan, Hsin-chi, “Support for Rule of Law in Hong Kong,” (1997) 27 HKLJ 189–205 Google Scholar; Kuan, Hsin-chi, “Popular Attitudes towards Rule of Law” in Siu-kai, Lau, Ming-kwan, Lee, Po-san, Wan and Siu-lun, Wong, eds., Indicators of Social Development, (Hong Kong: Hong Kong Institute of Asia-Pacific Studies, the Chinese University of Hong Kong, 2005)Google Scholar; and Subjective Social and Legal Indicators conducted by the Public Opinion Programme at the University of Hong Kong <http://hkupop.hku.hk/english/popexpress/judiciary/index.html>.

15 The study was commissioned by the Hong Kong Council of Social Service (HKCSS). The HKCSS launched the Project on Social Development Index for Hong Kong in February 1999. Under this project, social development in Hong Kong is measured using a Social Development Index (SDI). The Index consists of 47 social, political and economic indicators across 14 sectors of development including: (1) Strength of Civil Society; (2) Political Participation; (3) Internationalization; (4) Economics; (5) Environmental Quality; (6) Arts and Entertainment; (7) Sports and Recreation; (8) Science and Technology; (9) Education; (10) Health; (11) Personal Safety; (12) Housing; (13) Crime and Public Safety and (14) Family Solidarity. 31 additional indicators are used to assess changes over time in social development patterns among five vulnerable population groups including women, low-income persons, children, youth and the elderly. In June 2000, the Social Development Index 2000 (SDI 2000) was published, while the Index (SDI) for 2002 was released in May of that year. The HKCSS wanted to include Rule of Law as an additional sector to be covered by the SDI. The research team was led by the author as the principal investigator. Other members of the research team included Robert Chung, Public Opinion Programme, the University of Hong Kong; John Clancey, Asian Human Rights Commission, Hong Kong, Alvin Kwok, Hong Kong Christian Service, Karen Jo Laidler, Department of Sociology, the University of Hong Kong, Alan Leong, SC, practicing barrister, and Chua Hoi Wai, the Hong Kong Council of Social Service.

16 See Peerenboom, Randall, “Varieties of Rule of Law” in Peerenboom, Randall, ed., Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S., (London and New York: Routledge, 2004)CrossRefGoogle Scholar. These approaches have been referred to as the procedural and substantive approaches or the thin and thick conceptions of the rule of law.

17 Ronald J. Daniels and Michael Trebilcock, “The Political Economy of Rule of Law Reform in Developing Countries” (20050 26 Mich. J. Int'l L 99-140; Brian Z. Tamanaha, “The Lessons of Law-and -Development Studies” (1995) 89 Am. J. Int'l L 470-486” and Thomas Carothers, “The Rule of Law Revival” (19980 77 Foreign Affairs 95-106.

18 Ibid.

19 Peerenboom (See Note 16).

20 Fuller, Lon. L., The Morality of Law, (New Haven and London: Yale University Press, 1969)Google Scholar; Summers, Robert, “A Formal Theory of Rule of Law” (1993) 6 Ratio Juris p 127–142 CrossRefGoogle Scholar; Raz, Joseph, “Rule of Law and its Virtue (1977) The Law Quarterly Review pp 195–202 Google Scholar; and Walker (Note 16).

21 An anonymous reviewer of this article has given some valuable comments on the criteria to measure the rule of law adopted in this study. First, the reviewer noted that some of the criteria may need to be refined to avoid overlapping. Second, many of the criteria are vague and require more guidelines if they are to be used across countries. Thirdly, many of the criteria are also contested and there is wide variation across institutions. For example, countries differ significantly over judicial review, and in particular whether regular courts or special administrative and constitutional courts should have certain powers. In addition, some countries do not allow courts to overturn abstract acts (generally applicable rules). The author is very grateful to the reviewer for these astute comments. As this article is a report of a study that has already been completed, the criteria for measuring rule of law which had already been provided to the assessors and the members of the comparison group cannot be changed. However, these criteria could be modified on the basis of these comments from the reviewer if similar studies are to be conducted in Hong Kong in the future or in other legal systems. The comments will greatly improve the comparability of the findings.

22 Even though corruption had not been explicitly included as one of the criteria, the criterion of ‘impartial enforcement of the law’ includes the situation of corruption by government officials.

23 The Duty Lawyer Service is funded by the HKSAR Government but independently managed and administered jointly by the Bar Association and Law Society through the Council of the Duty Lawyer Service. The Duty Lawyer Service runs the Duty Lawyer Scheme which provides free legal representation by qualified lawyers in private practice to eligible defendants appearing in all Magistrates Courts, Juvenile Courts and Coroners Courts in Hong Kong.

24 See Davis, Kevin, “What can the Rule of Law Variable tell us about Rule of Law Reforms” (2005) 26 Mich. J. Int'l. L. 141 at 145–148 Google Scholar. Davis pointed out that quantitative study on Rule of Law usually encounters two main problems. First, the choice of legal variables could not indicate the actual level of attainment of Rule of Law. Second, the researchers might have drawn wrong inferences from the data. For these reasons, this study did not rely on any legal variable or set of legal variables to derive the Index on Rule of Law directly. The criteria of Rule of Law adopted in this study are only used as a reference for the experts in making their assessment on the level of attainment of Rule of Law. They were not asked to infer an index from those criteria directly but to give their assessment on the importance weighting and the level of attainment of each of the criterion separately. The experts were also asked to give an importance weighting to each criterion to ensure that the criteria are relevant legal variables for Rule of Law.

25 See the explanations for the increased number of judicial review applications given by the Chief Justice in his speech at the Ceremonial Opening of the Legal Year 2006 <http://www.info.gov.hk/gia/general/200601/09/P200601090137.htm>.

26 The data were collected from polls conducted in mid- and late-2004. This survey was conducted by telephone interviewers. The target population of the survey were Cantonese speakers in Hong Kong aged 18 or above. Telephone numbers were first selected randomly from telephone directories as seed numbers. Another set of numbers was then generated by using the plus/minus one/two method. Duplicate numbers were then screened out, and the remaining numbers were mixed in a random order to constitute the final sample. Upon successful contact being made with a target household, one member of the household was selected among those present using the “next birthday” rule. There were 1,020 successful samples and the response rate was 67.4%.

27 Walker (Note 16).

28 The original plan was to randomly select 6 judges from all levels of courts, 6 Legislative Councillors, 2 officials from the Department of Justice, 2 senior officials (Administrative Officer rank) from the Government with no legal professional qualifications, 2 senior officials (superintendent or above) from law enforcement agencies, 3 practicing barristers, and 6 practicing solicitors as our assessors. We sent out our invitation to the randomly selected assessors and when a person refused, we randomly selected another from the category and sent out the invitation to the newly selected assessor. The actual assessors who accepted our invitations were 4 judges from all levels of courts, 4 Legislative Councillors, 2 officials from the Department of Justice, 2 senior officials (superintendent or above) from law enforcement agencies, 3 practicing barristers, and 4 practicing solicitors. No senior officials (Administrative Officer rank) from the Government accepted our invitation. This had been taken into account when we compiled the final score for the Index.

29 The finding is:

30 The finding is:

31 The finding is:

32 These questions on the reliability of assessment by insiders were raised in a different context but may still be relevant to the discussion of the methodology adopted in this study. See Schauer, Frederick, “The Limited Domain of the Law” (2004) 90 Virginia L. Rev. 1909 at 1913, fn. 15CrossRefGoogle Scholar.

33 These measures would also avoid the possibility of subjective bias caused by a few widely reported but perhaps non-representative cases.

34 In future comparative studies on Rule of Law adopting this methodology in different legal systems, the weighting of the criteria given by their assessors can also be compared. The comparison may indicate how different legal systems see the relative importance of a certain criterion in assessing the rule of law in their own systems.

35 The assessment of Rule of Law in Hong Kong is surely unique in the constitutional and political context of Hong Kong. Explanations for why Hong Kong could attain a high standard in rule of law cannot be generalized in a way that the Hong Kong experience could be directly exported to other legal systems. To explore why Hong Kong has attained a high standard is not the main objective of this study. Rather, to develop a reliable method to ascertain the standard of the rule of law in Hong Kong or in any other legal system may be even more important.

36 See also, Hsu, Berry F.C., “Judicial Independence under the Basic Law”, (2004) 34 HKLJ 279–302 Google Scholar.

37 There are now three sets of anti-discrimination laws in Hong Kong to combat sex discrimination, disability discrimination, and family status discrimination. The HKSAR Government has a concrete plan to legislate another set of anti-discrimination laws on race. However, it is still not certain whether there will be any anti-discrimination law on sexual orientation, though the HKSAR Government has conducted a public survey seeking public opinion on the legislation of such law. Age and religious discrimination are still not included in any legislative plan.

38 This finding is very similar to the study by the World Economic Forum on the competitiveness of Hong Kong which, in the 2005 study, is ranked much lower at 28th place, having dropped seven places in 2004. The World Economic Forum's ranking is based on polls by business leaders. The drop is attributable to a tangible deterioration in the quality of the institutional environment in Hong Kong. It was observed that there was a weakening in perceived judicial independence, the protection of property rights, and policy making due to favouritism by government agencies.

39 The Housing Authority encountered a severe budgetary deficit and wanted to raise capital by selling certain retail and car park facilities in public housing estates (‘RCPF’). The proposed divestment by the Housing Authority of the RCPF would be accomplished by selling the RPCF to the Link Properties which is owned by a trust called the Link Real Estate Investment Trust (‘REIT’). The REIT would be offered for purchase to the public in Hong Kong and to certain investors internationally. The offer to the Hong Kong public of REIT units commenced on 25 November 2004, and dealing in the units was expected to begin on 16 December 2004. On 8 December 2004, a notice of application for leave to apply for judicial review was issued by Madam Lo Siu Lan, a tenant in a public housing estate, on the ground that the Housing Authority had acted ultra vires in selling the RCPF to Link Properties. The Court of First Instance decided in favour of the Housing Authority, and Madam Lo had a legal right to file an appeal within 28 days. In order to clear all legal impediments, the Housing Authority applied to the Court of Appeal to have the period of appeal abridged. The Court of Appeal reluctantly allowed abridgement and decided also in favour of the Housing Authority on the substantive issue. The applicant also had 28 days to appeal to the Court of Final Appeal. The Housing Authority again applied to the Court of Final Appeal to have the period of appeal abridged. However, this time, the Court of Final Appeal refused. As a result, the listing finally lapsed on 20 December 2004. See Lo Siu Lan and Another v. Hong Kong Housing Authority HCAL 154/2004 (Court of First Instance); Lo Siu Lan and Another v. Hong Kong Housing Authority CACV 378/2004 (Court of Appeal); Lo Siu Lan and Another v. Hong Kong Housing Authority FAMP No. 2 of 2004 (Court of Final Appeal); Lo Siu Lan and Another v. Hong Kong Housing Authority FACV No. 10 of 2005 (Court of Final Appeal).

40 Article 67(4) of the Constitutional of the People's Republic of China and Article 158 of the Basic Law of the HKSAR

41 In April 2004, the Standing Committee of the National People's Congress issued an interpretation and a subsequent decision that gave the power to decide whether there is a need to change the method of the election of the Legislative Council and the Chief Executive back to the Beijing government, and ruled out the introduction of universal suffrage to elect all seats in the Legislative Council and the Chief Executive in 2007 and 2008. In April 2005, it issued another interpretation which provided that the term of a re-elected Chief Executive after the resignation of a Chief Executive should be the remaining term of the resigned Chief Executive. To many people in Hong Kong, these so called interpretations seem to be more like decisions rather than real interpretations of the constitutional text. Also, these interpretations reflected more the political concern of the Chinese Government rather than the legal meaning of the relevant constitutional text. The HKSAR Government in both incidents could do nothing to prevent the abuse of the interpretation power by the Chinese Government, and it joined hands with some pro-Beijing political groups in Hong Kong in urging Hong Kong people to accept such political interpretations from Beijing.

42 The oft-cited example was the decision of the Secretary of Justice in 1998 not to prosecute Aw Sian, a member of the Chinese People's Political Consultative Conference and the chairman of a newspaper company in Hong Kong. Three current and former senior executives of Aw Sian's company were charged with conspiracy to defraud, and Aw Sian was also named as one of the parties of the conspiracies stated. There was worry that the pro-Central Government background of Aw Sian might have saved her from prosecution, but the Secretary of Justice openly stated that her decision not to prosecute was solely based on public interest.

43 As there was no similar study on Rule of Law conducted in Hong Kong before 2005, this impression was based on their subjective perception.

44 In late 2005, a new Secretary for Justice, Wong Yan-Lung, was appointed to replace Elsie Leung. Wong Yan-Lung is a senior council, and the public generally has an impression that he is fair, independent, and has professional integrity. The support rating of Wong Yan-Lung in polls conducted by the HKU POP SITE remains high in comparison with that of other principal officials including Elise Leung.

45 The opinions of people in Hong Kong are likely to be different from those of Mainland Chinese citizens on the same issues. Some representatives of Mainland Chinese citizens or experts should be included in future surveys.

46 Some groundwork has already been done, see Peerenboom, Randall, ed., Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S., (London and New York: Routledge, 2004)CrossRefGoogle Scholar.

47 Hong Kong is a small place, so an aggregate measure may be roughly accurate. However, if a similar study is to be conducted in a large developing country with great regional and institutional variations, a single aggregate score for the whole country may not be very meaningful. Different scores may have to be developed for different areas.