Keynote Speech at the East Asian Law and Society Conference 2015, 4-6 August 2015, Waseda University, Tokyo
Abstract: This paper argues that the discourse on the rule of law is of particular significance in Asia, partly because the rule of law is, rightly or wrongly, perceived to be more objective or less disturbing than discourses on human rights or democracy, and partly because it is perceived to be an essential condition for economic development. While there are considerable ambiguities about the concept, this is not a reason to dismiss its importance. The paper then develops the core content of the rule of law, with the absence of arbitrary powers as a central theme. Although the rule of law has gained an increasing acceptance among Asian states, many Asian states focus only on the enactment of legislation, whereas the implementation of the law and the availability of remedy are usually ignored. In particular, there is an absence of an independent judiciary, which, it is argued, is essential to the rule of law whatever the legal or political system is. It argues that the judiciary stands between the state and its people, and the legitimacy of the judiciary lies not in popular ballots but in its transparency, its rationality, its fairness and its independence.
The paper then reviews the concept of the rule of law as advocated in the recent 4th Plenum of the Central Committee of the Chinese Communist Party where the rule of law was adopted, for the first time, as the theme of the conference, and argues that despite the emphasis on party leadership, the effort to improve and strengthen the judiciary is a positive step that may have greater impact than it is generally expected.
The paper then explores the different perceptions of the rule of law in Hong Kong and China, and examines, in the context of One Country, Two Systems, the implications of two decisions of the Hong Kong Court of Final Appeal that have ended up in an interpretation by the Standing Committee of the National People’s Congress of the PRC. The interaction of the two systems highlights in particular the awkward position of legislative interpretation by a state organ in the development of the rule of law. The paper then turns to Hong Kong, exploring the relations between the rule of law and civil disobedience in the context of the recent Umbrella Movement. Finally, the paper returns to the core issue of constitutional review and the legitimacy of judicial review, and argues that it is possible to have the rule of law in an evolving democracy. Click here to download full paper from SSRN.