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CHALLENGES TO RULE OF LAW IN HONG KONG AND LESSONS FROM OTHER JURISDICTIONS Sarfaraz Ahmed Khan# INTRODUCTION The basic necessity for any legal system is adherence of ‘rule of law’. The term of rule of law is not specifically refer to any particular rules and procedures established in any legal system but it is an ideal, a conception, a principle or an institutions which every civil society expect to be governed by1.The greatest contribution of British Rule in Hong Kong was the legacy of common law system2 which functions on doctrine of precedence or stare decisis3.The adherence of rule of law and adoption of common law systems in Hong Kong often cited as important factor to make it major commercial city of the world4. The five pillars5 of modern day Hong Kong legal system are (a) fourth PRC Constitution of 19826 which empower the government to
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Assistant Professor in Law and Registrar (Acting), West Bengal National University of Juridical Sciences, Kolkata, India [
[email protected]] 1 Two major theories of Rule of Law are ‘Formalist Theories’ and ‘Substantive Theories’. See for basic understanding of the term ‘Rule of Law’, Stefan Lo & Wing Hong Chui, The Hong Kong Legal System (McGraw-Hill Education, 2011), Chapter 4, Pg. 62-79. 2 The Supreme Court Ordinance 1844 (No. 15 of 1844) first time introduced English law in Hong Kong. Section 3 of the Ordinance provides that the law of England shall be in full force in the Colony of Hong Kong except in certain circumstances. The subsequent Supreme Court Ordinance of 1873 also retained the provision. See Daniel R. Fung, QC, JP, ‘Foundation for the Survival of the Rule of Law in Hong Kong - The Resumption of Chinese sovereignty’ (1996-1997) 1 UCLA J. Int'l L. & Foreign Aff. 283, See also D.M. Emrys Evans, ‘Common Law in a Chinese Setting--The Kernel or the Nut?’, (1971) 1 HKLJ 1, 16. 3 One of the important remark made on the significance of doctrine of precedence and common law system was by eminent American jurist, Judge Learned Hand, in the following words, "stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon there lies which his predecessors left, and in his turn left a foundation upon which his successors might work." See, Learned Hand, ‘Review of Judge Cardozo's The Nature of the Judicial Process’, 35HARV. L. Rev. 479 (1922). 4 Lo & Chui (n. 1), Ch. 4. 5 Fung, ‘Foundation For The Survival of the Rule of Law in Hong Kong - The Resumption of Chinese Sovereignty’ (n. 2) 6 The National People's Congress enacted the fourth version of the PRC Constitution on December 4, 1982. Article 31 of provides that: "The State may establish special administrative regions where necessary. The systems to be applied in special administrative
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establish SAR, (b) Sino-British Joint Declaration 7 which among other strictly provided for the maintenance of Hong Kong's existing judicial system, (c) Basic Law 8 , (d) Hong Kong Bill of Rights 9 , (e) Hong Kong Court of Final Appeal Ordinance. The main concerns which shown by scholars at the time of transfer of the Hong Kong to PRC were the future of legal system and adherence of Rule of Law in Hong Kong10. Such concern was not without any basis as Basic law itself made provisions which are still a subject of debate. Some of the factors which frequently cited as challenge to adherence of Rule of law in Hong Kong are (a) excluding the jurisdictions of the Court of Appeal in certain class of cases, (b) independence of judiciary and (C) interpretation power vested with “National People’s Congress Standing Committee” (NPCSC) and its impact on independence of judiciary. Citing these reasons, it is argued that Rule of Law at Hong Kong is more myth than reality. The researcher would like to analyze these issues in greater detail first to look into the meaning and ambit of ‘Rule of Law’ itself, secondly the issues which justifiably claimed as obstacle in adherence of Rule of Law particularly independence of judiciary and lastly to conclude by making own observation on the issues.
DEMYSTIFYING THE CONCEPT OF RULE OF LAW The concept of the rule of law is seen as something positive and desirable and is powerful symbol representing justice and the good 11 . As it is a dynamic concept, there are various version of it being followed. Shklar classify rule of law into ‘rule of reason’, and as “institutional restraints that prevent governmental agents from oppressing the rest of the society”12. Two regions will depend on the actual circumstances in the region and be determined by law passed by the National People’s Congress." 7 The 1984 joint declaration is broadly viewed as a treaty within the meaning of the Vienna Convention on the Law of Treaties 1969, It imposed obligation on Britain to transfer sovereignty over Hong Kong to China, subject to certain specified conditions and safeguards and on state of China to people of Hong Kong "a high degree autonomy" under Deng Xiaoping's famous twin dicta "One Country, Two Systems" and "Hong Kong People Ruling Hong Kong." See Fung (n. 5), See also Wesley-Smith, ‘Constitutional and Administrative Law in Hong Kong’, (China & Hong Kong Law Studies, 2nded. 1994), 57. 8 On 4th April, 1990 the Basic Law, mini constitution of Hong Kong was adopted at the third Session of the Seventh National People's Congress of the PRC. 9 The Hong Kong Bill of Rights adopted in the year 1991. 10 John McDermott, “The Rule of Law in Hong Kong After1997”, (1996-1997) 19 Loy. L.A. Int'l & Comp. L.J. 263, See also Fung, (n. 5) 11 Lo & Chui (n. 1), Ch. 4. 12 Judith N. Shklar, ‘Political Theory and the Rule of Law’, in Allan C. Hutchinson and Patrick Monahan (edn), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1
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major theories of rule of law are formalist and substantive theories13. Raz enlisted the following characteristics, which is not an exhaustive list, for rule of law namely; (a) laws should be open, clear and prospective in application, (b) relatively stable, (c) law should be made by the process of open, stable and clear general rules, (d) independence of judiciary, (e) procedural fairness, (e) judicial review, (f) accessibility of judicial system and (g) reasonable restrictions on law enforcement agencies14. On the other hand, substantive theory demands that there should also be “restriction on substantive contents of the laws” so that “laws must be in accordance with substantive justice as well” 15 . Craig distinguishes both formal and substantive conception of rule of law as former do not pass the judgment on the content of law but the later based its theory on “from an account of justice”16. Under the substantive rule of law “absolute legislative supremacy would be denied” as rule of law creates restraints to achieve ultimate objective of justice17.In this background, it is essential to see each of the surrounding issues relating to rule of law in Hong Kong whether it really adheres to rule of law or it is just a myth.
INDEPENDENCE OF JUDICIARY AND RULE OF LAW The Basic law in order to preserve rule of law in Hong Kong makes explicitly the provisions for (a) Judicial independence18 (b) Fair Trial19, (c) appointment of judges20 and (d) security of tenure21. However, there are 13
Lo & Chui (n. 1), Ch. 4, p. 62-63. J. Raz, ‘The Rule of Law and its virtue’, (1977) 93 Law Quarterly Review 195, quoted in Lo & Chui (ibid 63-64). 15 Lo & Chui (n. 13), Ch. 4, p. 65-66. 16 Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, (1997) Public Law 446, Quoted in David Dyzenhaus, Recrafting the Rule of Law: The Limits of the Legal Order, (1999 Oxford – Portland Oregon, Hart Publishing) 5. 17 Lo & Chui (n. 15), Ch. 4, p. 69, For further analysis of the issue See, F.C. De Coste, ‘REVIEW ESSAY: Redeeming the Rule of Law: Constitutional Justice: A Liberal Theory of the Rule of Law, T.R.S. Allan’, (April, 2002), 39 Alberta L. Rev. 1004 18 Article 85 of the Basic Law provides that the courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions while Article 86 provides that the principle of trial by jury previously practised in Hong Kong shall be maintained. 19 Article 87 of the Basic law provides that in criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained while Article 86 maintained jury trial in Hong Kong. 20 Article 88 of the Basic Law provides that Judges of the courts of the Hong Kong Special Administrative Region shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors. While Article 92 provides that Judges and other members of the judiciary of the Hong Kong Special Administrative Region shall be chosen 14
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provisions in the Basic law such as provisions excluding the jurisdiction of Court of Final Appeal (CFA) from issues relating ‘act of state’ and interpretation power vested with non-judicial body are two major issues challenging the independence of judiciary. Both the issues need detail deliberation in the foregoing parts.
EXCLUSION OF CFA JURISDICTION CFA does not have jurisdiction to deal with the cases pertaining to ‘Acts of State’22. Concern was shown by many scholars that this may be interpreted too broadly to circumvent individuals’ rights23. There are other scholars who believe such apprehension is “unfounded”24. On contrary, it is argued that it is not certain that the word ‘act of state’ would be interpreted in same way as suggested by Prof. William Wade 25 . Indeed, Tam Yiu Chung, a proChina legislator, told his fellow Hong Kong legislators that China's National People's Congress would decide what falls within CFA jurisdiction26.
on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions. As at the time of appointment of Judges the Chief Executive obliges to act on the recommendation of Independent commission, it strengthen further the independence of Judiciary. 21 Article 89 of the Basic Law limits the power of removal of Judges and allowed only on justifiable grounds. Its provides that judge of a court of the Hong Kong Special Administrative Region may only be removed for inability to discharge his or her duties, or for misbehavior, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal and consisting of not fewer than three local judges. It further provides that the Chief Justice of the Court of Final Appeal of the Hong Kong Special Administrative Region may be investigated only for inability to discharge his or her duties, or for misbehaviour, by a tribunal appointed by the Chief Executive and consisting of not fewer than five local judges and may be removed by the Chief Executive on the recommendation of the tribunal and in accordance with the procedures prescribed in this Law. 22 Ordinance categorically provided that the Court shall have no jurisdiction over acts of state such as defence and foreign affairs. Hong Kong Court of Final Appeal Ordinance, 1995 (CFAO 1995), s 4(2) available at
23 See, J. Leung, ‘Concerns over the Rule of Law and Court of Final Appeal in Hong Kong’, (1997), 3ILSA J International and Comparative Law 843, 851-855. 24 One of Great Britain's most respected constitutional scholars, Professor Sir William Wade, believes that fears regarding the acts of state exemptions are unfounded because joint declaration requires future Hong Kong courts to follow English common law precedent. See John McDermott, (n. 10) Foot Note (FN) 71. 25 John McDermott, (ibid F.N. 76). 26 There are commentators who have criticized the provisions as too broad or danger. Sir Percy Cradock, Great Britain’s former ambassador in Beijing, describes the acts of state provision as "dangerously broad". Justice Michael Kirby, executive chairman of the International Commission of Jurists and President of the New South Wales Court of Appeal, agrees that "any reference to an Act of State exemption in a society such as the People's Republic of China is fraught with danger." A U.S. lawyer in Hong Kong has
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The debates of the impact of such exclusionary clause remain continued but the experience of the first decade shows that it did not make any adverse influence27. During first decade, not a single Chinese state-owned institution tried to use the clause28. There is one positive sign that ‘garrison allowed one of its soldiers to be tried and convicted’ in Hong Kong who committed the offence of theft at Disneyland 29 . The other issue which regard to judiciary also arises about composition of the Court of Final Appeal but facts remain the Judges from other Common Wealth Jurisdiction are invited frequently30. The exclusion clause in reality did not really make major effect and hence not functional anti-thesis to rule of law.
INTERPRETATION OF BASIC LAW The real threat to the rule of law has been emerged from the NPCSC repeated use of its power to interpret the Hong Kong Basic Law” 31 . It undermined rule of law more importantly when Chief Executive has “power to seek an interpretation of the Basic Law from the NPCSC”32. Till now four interpretations has been given by NPCSC on the interpretation of Basic Law 33 . The first interpretation was on Articles 22(4) and 24(2)(3) of the Basic Law which was sought by Chief Executive 34 followed by two described it as creating "a loophole through which you can drive a truck.". See John McDermott, (n. 25) 27 See Danny Gittings, ‘Changing Expectations: How the Rule of Law Fared in the First Decade of the Hong Kong SAR’, (2007) available at
, accessed on 25th October, 2012 28 The only exception was when a business man accused of fraud attempted to argue on the issue ‘acts of state’ but without any success HKSAR v. Cheung Hung Ngai (1997) CACC 666/1995 29 “Under the Law of the PRC on Garrisoning the KHSAR, criminal offence committed by members of the garrison while they are off duty can be tried in the Hong Kong courts. However, the garrison has a right to decide when its members are acting in the course of its official duties, in which case they are not subject to the jurisdiction of the Hong Kong court”. See Danny Gittings, (n. 27) FN38. 30 In fact, ‘several of such Judges delivered leading judgments and made sufficient impact to draw the ire of one prominent pro-china politician, who graphically denounced them as “parachute judges” in 2000’. See Danny Gittings, (n. 27) 31 See Danny Gittings, (ibid) 32 See, Lo & Chui (n. 15), Ch. 4, p. 74; Court of Final Appeal in Lau Kong Yung v. Director of Immigration, (1999) 2 HKCFAR 300, tacitly accepted such power. In fact, the forth interpretation of Article 13 and Article 19 were sought by judiciary themselves. For general critique see Y Ghai, ‘The NPC Interpretation and its consequences’ in Chan, Fu and Ghai, (eds.) Hong’s Kong’s Constitutional Debate: Conflict over Interpretation, (Hong Kong University Press, Hong Kong 2000), 212-213. 33 For detail on all four interpretations, see, accessed on 26th October, 2012. 34 The Interpretation by the Standing Committee of the National People's Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative
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decisions of the Court of Final appeal in Ng Ka Ling v. Director of Immigration35 and Chan Kam Nga v. Directorate of Immigration36. Article 24(2) 37 enlisted the kinds of permanent resident of the Hong Kong. The Immigration (Amendment No. 2) and (Amendment No. 3) Ordinance were in issues before the court 38 . The CFA held that Amendment (2) violates Article 24 (2) and Amendment (3) violates Article 24 (3) of the Basic law39.NPCSC virtually overruled the CFA order40.
Region of the People's Republic of China, Adopted by the Standing Committee of the Ninth National People's Congress at its Tenth Session on 26 June 1999, available at , accessed on 25th October, 2005 35 (1999) 2 HKCFAR 4 36 (1999) 2 HKCFAR 82 37 Article 24 of the Basic Law provides that Residents of the Hong Kong Special Administrative Region ("Hong Kong residents") shall include permanent residents and nonpermanent residents. It further enlisted the permanent residents of the Hong Kong Special Administrative Region which shall be: (1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region; (2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region; (3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2); (4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region; (5) Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and (6) Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only. The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode. The non-permanent residents of the Hong Kong Special Administrative Region shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode. 38 The Immigration (Amendment No. 2) Ordinance mandate that children born out of wedlock could not come under category 3 and in order to avail this right his or her parent should have right to abode that time while the Immigration (Amendment No. 3) Ordinance laid down that permanent residency status under category 3 and the right of abode “could only be established by the person having a certificate of entitlement which was affixed to the valid travel documents. See Lo & Chui (n. 15), Ch. 4, p. 75. 39 “the government had argued that the No. 3 Ordinance was valid on the basis… of Art. 24 (4) which state that for entry into Hong Kong, people from other parts of China must apply
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The second interpretation was made suomoto by NPCSC in respect of Annex 1, Article 7 and Annex II Article III concerned with universal suffrage and election of chief executive41. This interpretation was to help the authorities to resist the demand for rapid reform with regard to bringing democracy42. The appointment of Mr. Tong successor for two years’ terms is in reality a complete disregard to Article 46 of the Basic Law43 which was based on third interpretation given by NPCSC 44 . This interpretation was frequently criticized45. The forth interpretation was given on Article 53 with regard to selection of Chief Executive and processes thereof46. It is being argued that “entrenchment of the exclusive interpretative power of the Hong Kong courts… will reinforce judicial independence and rule of law in Hong Kong”47. But fact remain that outrage against such power never reoccur as was in 1999. No one can doubt that binding interpretation by executive authority undermine independence of judiciary. The main challenge will be before the judiciary to overcome it and the possible ways could be judicial review. There are several examples in different commonwealth jurisdiction where executive functions were frequently for approval. The court rejected this argument and Hong Kong Government was concerned of massive influx of person from mainland. See for detail Lo & Chui (ibid), p. 76. 40 NPCSC interpreted that Article 22(4) cover persons on the mainland of Chinese nationality born outside Hong Kong to Hong Kong permanent resident and a person could only come under category 3 in article 24 (2) if at least one parent was a permanent resident at the time of such person’s birth. Lo & Chui (ibid) p. 76, See also, the interpretation given by NPCSC available at , accessed on 25th October, 2012. 41 NPCSC, The Interpretation of the Standing Committee of the National People's Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, available at http://www.basiclaw.gov.hk/en/materials/doc/2004_04_06_e.pdfaccesses on 24th October, 2012 42 Danny Gittings (n. 31) 43 Article 46 provides that the term of office of the Chief Executive of the Hong Kong Special Administrative Region shall be five years. He or she may serve for not more than two consecutive terms. 44 This issue had arisen after the submission of the resignation of Mr. Tung Chee-hwa in 2005 who had to serve two more years. Accordingly, issue was whether the new Chief Executive will be served for fresh five years’ term or remaining two years’ term. See for discussion, Lo & Chui (n. 40, Chapter IV, p. 77) 45 On this interpretation, the question raised “about which legal system the Hong Kong Government was now committed to” and apprehension raised that “provisions relating to civil liberties” will also be “interpreted according to mainland more flexible rules” See Danny Gittings, (n. 42) 46 The detail of the interpretation and reports are available at accessed on 25th October, 2012 47 Ling Bing, Subject Matter Limitation on the NPCSC's Power to Interpret the Basic Law, (2007) 37 HKLJ 619.
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challenged for judicial review. In Dhananjoy Chatterjee V. State of West Bengal48, the Supreme Court of India accepted PIL against the decision of Governor to decline the pardoning application of the accused49.In Swaran Singh vs. State of U.P. 50 , court observed that order of the Governor is subject to judicial review within the strict parameters laid down in Maru Ram's case 51 . The interpretation of Basic law by NPCSC which is an executive body can be deemed to consider as executive function and hence may be subject to judicial review.
THE OTHER CHALLENGES AHEAD FOR ONE COUNTRY TWO SYSTEM AND RULE OF LAW One of the challenged which will be faced in coming decade will be relating to trial of the offenders who either committed offence in Hong Kong and arrested in Mainland or committed at HKSAR and arrested in Mainland. In the murder case of Hong Kong tycoon Harry Lam, four people were convicted by Shenzhen court while offence was committed at Hong Kong52. One of the accused received death penalty. On another occasion accused was executed after trial at Guangzhou53. This incident was referred by legal fraternity as “chilling precedent”54 for the future of Hong Kong’s separate legal system55.
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Dhananjoy Chatterjee v. State Of West Bengal, Supreme Court of India, Appeal (crl.) 393-394 of 2004, decided on 26 March, 2004, available ataccessed on 25th October, 2012. 49 In this case the trial court awarded death penalty to accused which was affirmed by all courts in India. Thereafter the accused filed mercy petition to Governor and later to President. Both Governor and President being the Chief Executive Authority have exclusive power of pardoning under the Constitution of India. Again, such decision ideally no appeal can be filed but Court accepted PIL to do judicial review of the action of the executive on the premise that whether executive authority had opportunity to access all information and rightly comes to certain conclusion. 50 (1998) 4 SCC 75 51 Maru Ram V. UOI, MANU/SC/0159/1980 52 The convicted accused were former Hong Kong TV star Victor Yeung Ka, Gunman Yang Wen, 27, his assistant Zhang Zixin, 22, and Wu Weiwu, 25. Yang was sentenced to death for shooting Lam while Zhang was jailed for 13 years for assisting Yang. Lau Yatyin, 47, was sentenced to life imprisonment together with Tse Bing, 47. See Emily Wu, Former TV star gets life for tycoon murder, The Standard,(Wednesday,11July, 2007) available at accessed on 24th October, 2012 53 On another occasion, “Big Spender” case, Cheung Tze-keung and his associates were “executed after being tried in a Guangzhou court for kidnappings and other crimes carried out primarily in Hong Kong”. See Danny Gittings, (n. 45) 54 Chiris Yeung and Billy Wong Wai-yuk, ‘Chilling’ Big Splender precedent, (South China Morning Post, 28th October, 1998), Referred in See Danny Gittings, Changing
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It is important to remember that extradition of people who face death penalty attracts worldwide attention particularly from abolitionist state56.In Roger Judge Case 57 , Human Rights Committee held that the state party which has abolished the death penalty, irrespective of whether they have ratified optional protocol58 or not violate the right to life if it deports him without ensuring non-enforcement of death penalty. Most importantly in Mr. Jens Soaring case59 ECHR held referring to death row phenomenon that extradition under these conditions would constitute inhuman and degrading treatment under Art. 3 of the European Convention 60 . In the cases of Cheung Tze-keung and Harry Lam the accused could not have received death penalty if they were tried in Hong Kong. Similarly, if any other person accused of the offences committed in mainland found in Hong Kong may claim his human rights protection not to extradite them to China unless sufficient assurance obtained of non-execution. In both situations, it will remain a major challenge for Hong Kong to uphold rule of law and provide protection to accused. Ideal of equality is sine qua none and “resides at the heart of the rule of law”61.The Joint Declaration provides that three of the four permanent Hong Kong judges on the CFA may be of any nationality and only the Chief
Expectations: How the Rule of Law Fared in the First Decade of the Hong Kong SAR, available at , last visited on 25-10-2012 55 China could circumvent the restriction arresting and trying the accused in mainland instead of returning them to Hong Kong. See Danny Gittings, (n. 53) 56 On numerous occasions during last few decades’ issue has been raised in the abolitionist states that whether extradition can be refused if the fugitive faces death penalty in the requesting state. Initially it was challenged on the ground of process of execution as violation of human rights but the mounting abolition movement made it possible to stall extradition per se on the ground of death penalty in different national and international forum. See, Alan Clarke, ‘Terrorism, Extradition, and The death Penalty’, (William Mitchell Law Review, vol. 29:3,2003), p. 783. 57 Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003). 58 Second Optional Protocol to International Covenant on Civil and Political Rights, 1990, G.A. Resolution 44/128, U.N. Doc. A/44/49 (1989), aiming at the abolition of death penalty. 59 Soering v. United Kingdom, Series A, No. 161, ECHR 60 In this case, United State of America requested for extradition of Mr. Jems Soering on capital charges where he may face death penalty. On the other hand, Germany requested for extradition. United Kingdom agreed to extradite to United State on the assurance from U.S that the prosecutor would advise the judge on the United Kingdom view on the issue of death penalty. Against such decision Mr. Soering approach European Court of Human Rights (ECHR) which stall be fit for extradition of Mr. Soering. 61 For detail analysis of the equality and rule of law see, F.C. De Coste, (n. 17)
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Justice must be of Chinese descent from Hong Kong62. Article 90 of the Basic Law provides that Chief Justice of CFA and High Court shall be Chinese citizen 63 . There are many other provisions where only Chinese decent can be appointed. It will be another challenge to the concept of rule of law which has to be tested on the ground of equality and reasonable classification.
CONCLUSION It is difficult to argue that none of the characteristic of rule of law being followed in Hong Kong. On the other hand, it is also a challenging affair to fulfill all the essential requirements of rule of law, particularly if we judge from the threshold of substantive theories of rule of law. But if we see from the perspective of formalist, Hong Kong legal system did follow majority of essential requirements and accordingly it is not completely a myth in Hong Kong. The important challenge to rule of law such as interpretation power, independence of judiciary, just and fair laws and justice can be achieved if judiciary themselves become more active, independent and powerful. The power of judicial review is such a sword which can cut any attempt contrary to rule of law into many pieces. There are challenges ahead to the judiciary and rule of law. But Hong Kong need new breed of judiciary to accept all those challenges as seen in this paper and uphold rule of law through creative, imaginative interpretation and firm determination.
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Though the CFA agreement was passed by Leg Co by 38-17 votes but facts remain that all elected members voted against it and in favour of amendment which argues for protection of Hong Kong freedom. (ibid.) See also, John McDermott, (n. 25) FN 71 63 Article 90 of the Basic law provides that the Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court of the Hong Kong Special Administrative Region shall be Chinese citizens who are permanent residents of the Region with no right of abode in any foreign country. It further provides in clause (2) that in the case of the appointment or removal of judges of the Court of Final Appeal and the Chief Judge of the High Court of the Hong Kong Special Administrative Region, the Chief Executive shall, in addition to following the procedures prescribed in Articles 88 and 89 of this Law, obtain the endorsement of the Legislative Council and report such appointment or removal to the Standing Committee of the National People's Congress for the record.
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