2020 Additional Resources

Information based on the publication “Legal System in Hong Kong” of the Hong Kong Department of Justice:

The rule of Law
The “rule of law” refers to some of the fundamental principles of law that govern the way in which power is exercised in Hong Kong. The rule of law has several different meanings and corollaries. Its principal meaning 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 which would otherwise constitute a legal wrong or affect a person’s liberty unless he can point to a legal justification for that action. If he cannot do so, the affected person can resort to a court which may rule that the act is invalid and of no legal effect. Compensation may be ordered in the affected person’s favour. This aspect of the rule of law is referred to as the principle of legality.


One corollary of the principle of legality can be summarised as equality before the law. It is 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.


Legality and equality before the law are two fundamental facets of the rule of law. But the principle demands something more, otherwise it would be satisfied by giving the government unrestricted discretionary powers. A further meaning of the rule of law, therefore, is to be found in a system of rules which restrict discretionary power. To this end the courts have developed a set of guidelines aimed at ensuring that statutory powers are not used in ways which the legislature did not intend. These guidelines relate to both the substance and the procedures relating to the exercise of executive power. An example of the former is where a court concludes that a decision which purports to be authorised by a statutory power is plainly unreasonable and cannot have been envisaged by the legislature. An example of the latter is where a decision has been made without according the party affected the opportunity of being heard in circumstances where the legislature must have envisaged that such an opportunity would have been given. In both cases a court would hold that the decisions were legally invalid.

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 following paragraphs are extracted from a UN General Comment on Article 12: “Equal recognition before the law” of the Convention on the Rights of Persons with Disabilities

Original document: https://digitallibrary.un.org/record/812024/files/CRPD_C_GC_1-EN.pdf


Equality before the law is a basic general principle of human rights protection and is indispensable for the exercise of other human rights. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights specifically guarantee the right to equality before the law.


The present general comment reflects an interpretation of article 12 which is premised on the general principles of the Convention, as outlined in article 3, namely, respect for the inherent dignity, individual autonomy — including the freedom to make one’s own choices —, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.


The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities each specify that the right to equal recognition before the law is operative “everywhere”. In other words, there are no permissible circumstances under international human rights law in which a person may be deprived of the right to recognition as a person before the law, or in which this right may be limited. This is reinforced by article 4, paragraph 2, of the International Covenant on Civil and Political Rights, which allows no derogation from this right, even in times of public emergency.


The right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others. Legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights.


Article 12 of the Convention on the Rights of Persons with Disabilities further describes the content of this civil right and focuses on the areas in which people with disabilities have traditionally been denied the right. Article 12 does not set out additional rights for people with disabilities; it simply describes the specific elements that States parties are required to take into account to ensure the right to equality before the law for people with disabilities, on an equal basis with others.


Article 15 of the Convention on the Elimination of All Forms of Discrimination against Women guarantees women’s equality before the law and requires the recognition of women’s legal capacity on an equal basis with men, including with regard to concluding contracts, administering property and exercising their rights in the justice system.

 

Other reading:

  1. Kapai, Puja. “The Human Rights of Women in the Hong Kong Special Administrative Region.” University of Hong Kong Faculty of Law Research Paper, 2012.
     

  2. Kong, K. Y. “Adjudicating Social Welfare Rights in Hong Kong.” International Journal of Constitutional Law, vol. 10, no. 2, 2012, pp. 588-599.
     

  3. Kong, K. Y. “社會福利安全網的人權基礎.” 時代論壇, 3 February 2014.
    https://christiantimes.org.hk/Common/Reader/News/ShowNews.jsp?Nid=81900&Pid=6&Version=0&Cid=1029&Charset=big5_hkscs

     

  4. Kong, K. Y. “談資源分配與社會公義.” 時代論壇, 7 April 2011.
    https://christiantimes.org.hk/Common/Reader/News/ShowNews.jsp?Nid=65686&Pid=6&Version=0&Cid=150

     

  5. Loper, Kelley, "Equality and Inclusion in Education for Persons with Disabilities: Article 24 of the Convention on the Rights of Persons with Disabilities and its Implementation in Hong Kong." Hong Kong Law Journal, vol. 40, 2010, pp. 419-447.
     

  6. Loper, Kelley, "Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong." North Carolina Journal of International Law, vol. 44, no. 2, 2019, pp. 273-316.
     

  7. Loper, Kelley, “Right to Equality and Non-Discrimination​.” Law of the Hong Kong Constitution, edited by Chan, Johannes M. M. and C. L. Lim, 2015, pp. 989-1012.