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
回歸以來，鑑於政治體制畸形，內耗不絕，香港特區管治諸事不順，而內地當
局介入香港內部事務之深廣，使人深感不安。值得慶幸的是司法機關與其工作，
仍然保持相對獨立和符合港人期望。
對於法院的角色和職能，終審法院首席法官馬道立昨在法律年度開啟典禮致辭
時，反映他對法治的堅持和司法工作的期盼，值得介紹。
馬道立說法院與法官只處理訴諸法院的糾紛所引致的法律問題，即使訴訟或會
因而產生政治、經濟或社會上的影響，法院仍然只會考慮訴訟各方爭議的法律
問題。他認為《基本法》清楚訂明立法、行政、司法機關三權分立的原則，司法
機關的憲制角色是依據法律審理訴諸法院的糾紛。馬道立的明確宣示，使人對
他帶領司法人員維繫司法獨立有更大信心。
香港管治即使千瘡百孔，可幸法治仍然得到高度體現，法律在香港不致淪為當
權者統治人民的工具。
以法治情况檢視政改的討論，目前一些建議動輒被指為未符合基本法的規定，
其偏離法治之處使人不安。例如公民提名是否適合特首選舉提名，可以討論，
但是基本法、全國人大常委會的解釋和決定都沒有提及，若斷然指公民提名
「違法」，難以使人信服。
法治除了法律條文，還需要有效機制去執行，其中涉及法官的獨立性。馬道立
提到回歸以來，法官的任命並未出現過問題，特首從未否決過司法人員推薦委
員會的推薦，也未試圖以任何形式影響委員會的決定。法官的質素十分重要，
香港必須守好法官任命這一關，才可以確保法治和司法工作不變質。
今年的法律年度開啟典禮，另一名講者律政司長袁國強致辭時也談到法治，他
說，「即使為了觀乎崇高的理念，任何蓄意的違法行為也不應鼓勵。」這番話，
明顯衝着「佔領中環」而來。袁國強作為官員和參與推動政改諮詢，他這番表態
完全正常，不過，會否出現佔中，主要視乎特首普選提名會否有不合理限制，
是政治抉擇問題。所以，這個法律年十分政治化，完全反映現在香港的氛圍，
期望整體社會能夠發揮智慧，在法律和政治兩方面都可以取得積極進展。
Glossary
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