I INTRODUCTION

A hundred years ago, the concept of the rule of law has lived in the hearts of free men and women everywhere. Just like liberty or democracy, the rule of law is favoured by all mankind and is worthy of our highest efforts as a people.
In this essay, I will firstly try to interpret the representative versions of the rule of law and explain the key elements derived from the different meanings. Then I will proceed to its relevance to Hong Kong. Starting from 1st July, 1997, Hong Kong has been re-unified to The People's Republic of China and people show their great concern whether the rule of law in the HKSAR will be maintained. I will try to explain if the rule of law exists before the handover and contrast with that after the handover by referring to recent case law, the Basic Law and the legal system.

II DIFFERENT MEANINGS OF THE RULE OF LAW

A. Dicey's Version of the Rule of Law
Albert Venn Dicey's Lectures on the rule of law were first published in 1885. His doctrine of the rule of law consists of 3 core ideas:
Firstly, the rule of law means law is supreme and is contrary to arbitrary power. Unless a person's act violates the laws established before the ordinary courts, he or she will be penalized. Dicey also pointed out that governments should not have wide discretionary powers which should at least be limited to some extent.
Secondly, Dicey believed that everyone should be equal before the law, that is, no matter who you are, may be you are a government official or a peasant, you will be taken to the court and are subject under the same law if you have breached the law.
Thirdly, Dicey believed that the rules of a constitution are not the source of law. On the other hand, he thought that every individual in a society should have their rights and freedoms to do what they want. Everybody with his or her rights infringed can seek remedy in the courts. It is provided in common law and Dicey believed that common law protected individual to a greater extent than a written constitution. And that is the consequence of the rights of individual which forms the source of law.

B. J. Raz´s Version of the Rule of Law
Raz believed that the doctrine of the rule of law should contain at least 8 principles. In the first place, law should conform to a certain standard so that it can guide action. Therefore, firstly, laws should be open and clear thus people would not be confused. Secondly, laws should be stable which is important to guide people for long-term decision. Thirdly, the making of particular laws should be guided by open, stable, clear and general rules.
Also, Raz specified that the legal machinery of enforcing the law should be capable of overseeing conformity to the rule of law and providing remedies. The following four principles deal with that. He considered judicial independence, natural justice and judicial review of legislation and administrative actions were of vital importance so they must be guaranteed in every jurisdiction. Also, the courts should be easily accessible. Lastly, the power delegated to the crime preventing agencies should not be abused.

C. Modern Version
Some principles provided by Dicey's or Raz's Version may not be applicable to the fast-changing world nowadays. As a result, it is necessary to know the definitions of the modern version of the rule of law. According to the principles derived by the CSCE , the principles include a number of new ideas apart from the principles set out by Dicey and Raz. For example, free and democratic elections should be held, human rights and fundamental freedoms will be guaranteed by law, freedom of travel, religion, thought, et cetera. (Please refer to Appendix 1)

III KEY ELEMENTS OF THE DIFFERENT MEANINGS OF THE RULE OF LAW

A. Antithesis of Arbitrary Power
Every person in a society is governed by law, including government officials, law-enforcement officials. The court can apply the doctrine of ultra vires equally to every government agency and officials for an act that is outside the limit of the authority by law. Also, a person can only be punished for a breach of established law or regulation, not retrospective.

B. Equality Before the Law
Courts must apply laws equally to all people regardless of their race, class, wealth, religion, et cetera. Every accused should be entitled to have a fair trial, to hear and attack the allegation against them and to have their
conduct assessed by impartial judges.

C. A Formal, Rational Court System
"Formality" and "Rationality" describe the system with much prediction and little discretion resulting from a system with regular, open and stable procedure. The advantage is that the behaviour of the system is in a self-consistent and objective manner.

D. Judicial Independence and Separation of Powers
Judiciary should be independent of the legislative and executive, and every judge is free to decide matters before him without any improper influences, inducements or pressures. The power of a government should be split into three so that one can check and balance with another and it minimizes the possibility of abuse of power by the government.

IV RELEVANCE OF THE RULE OF LAW TO HONG KONG

In this section, I'll try to analyze whether the rule of law did exist before the handover first before turning to the current situation for comparison.

A. Before 1st July, 1997
In retrospect of the past 150 years, Hong Kong has developed from a small village into an international financial centre and cosmopolitan city under the British rule. But one thing I want to know is whether the doctrine of the rule of law existed in that one and a half century.
After British took over Hong Kong, the Queen promulgated two documents, Letters Patent and Royal Instructions which set up the constitution of Hong Kong. When we look into the documents, it can be found that the Queen as well as the Governor enjoy a great deal of authority. In addition, till recently when the majority of the seats in Legislative Council were elected, the Executive branch of the Government dominated over the Legislature. As a result, there was actually no separation of powers until the past few years. Furthermore, the two documents were imposed without consultation of the Hong Kong people and thus it is not democratic at all. The same also applies to the Governors who were chosen by the Queen instead of by local election. All these show that the rule of law was not completely upheld in Hong Kong under the British rule.

B. After 1st July, 1997
Many people have doubts whether the rule of law will be upheld after Hong Kong is reunified to PRC because they think the Communist Party in China is above the law and uses laws to control the people . And in the following, I am going to anaylze if the rule of law principles are relevant to the HKSAR and my focus will be on judicial independence and equality before the law.

(i) Judicial Independence
First, I want to draw your attention to the mini-constitution of HKSAR, the Basic Law, which clearly provides judges with high degree of independence.
The principle of judicial independence is stated in BL85 . Judges resolve disputes as between citizens and as between citizen and state in an impartial manner without fear and favour. Actually, the independence of the judiciary is further ensured in BL 88, 89, 90, 93 by providing judges with high salary and listing out clearly the mechanism for the appointment and removal of judges.
Then, I want to look into several recent cases.
One day, I heard from the evening news after the handover, when the Chief Executive, Mr. Tung Chee-hwa was asked by a journalist if he was disappointed that the validity of Hong Kong''s laws and the Provisional Legislative Council have been challenged so often. His answer was no because it showed that the rule of law could be preserved after the handover. The landmark case would be the illegal child immigrant case last year. Judge Keith in this case struck down legislation barring children born out of wedlock from being automatically entitled to the right of abode The judgment was different from the current policy of the government on that issue. Again, in the most recent case, Lai Sze-nga v HKSAR, Judge Keith held that the amendment to the Immigration Ordinance by the Provisional Legislature which denies the right of abode for 81 mainland-born children for one of their parents has not resided in Hong Kong for 7 years when they were born is against the Basic Law. The government lost in this case and has decided to appeal to the Court of Final Appeal. The above two cases show that judges continue to be independent from the policy or interference of the SAR government as before 1997 which is very important to uphold the rule of law.

(ii) Equality before the law
BL25 states that :
"All Hong Kong residents shall be equal before the law"

The Basic Law guarantees all people are equal before the law no matter they are Chinese or non-Chinese, permanent or non-permanent residents. Foreigners shall not enjoy privileges higher than Hong Kong residents, but on the other hand, they shall not be discriminated just because they are not Chinese.
Actually, from the recent illegal child immigrants cases, we can see that all illegal immigrants can bring actions to the Government, with no one being privileged. Moreover, they can apply for legal aid and find their desired lawyers. Finally, Court's decision apply to all children with similar situation, nobody would be privileged if they are asked to leave Hong Kong.
All these show clearly that the principle of equality before the law is preserved after the handover.

V CONCLUSION

After analyzing the rule of law in Hong Kong before and after 1997, it can be found that the doctrine of the rule of law did already exist in Hong Kong when was under the British rule, but incomplete and insufficient, until recent years when direct elections were held and many other jobs were done by the Government . In the first few months after the handover, the rule of law is upheld. I hope the rule of law can continue to be preserved by all means in the future as it is of paramount importance to the continued success of Hong Kong.

BIBLIOGRAPHY

Alder, J. (1994) Constitutional and Administrative Law (2nd ed.), Basingstoke : Macmillan Press
Deschenes, J. and Shetreet, S. (1985) Judicial Independence: The Contemporary Debate, Dordrecht : Martinus Nijhoff Publishers
Ghai, Y. (1997) Hong Kong New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, Hong Kong : Hong Kong University Press
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Raz, J. (1997) The Rule of Law and its Virtue, 93 LQR pp195-202
Wade E. C. S. and Bradley A. N.(1993) Constitutional and Administrative Law - Implication for 1997, New York, the USA : Longman Group Limited
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Wesley-Smith, P. (1995) Constitutional and Administrative Law in Hong Kong, Hong Kong : Longman Asia Limited
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Appendix 1

The full version of the principles of the rule of law defined by the CSCE:
· free and democratic elections ;
· a representative form of government in which the executive is accountable to the elected legislature or the electorate ;
· the duty of the government and public authorities to comply with the constitution and to act in a manner consistent with law ;
· a clear separation between the State and political parties ;
· military forces and the police will be under the control of, and accountable to, civil authorities ;
· human rights and fundamental freedoms will be guaranteed by law ;
· free access to the legislation adopted at the end of public procedure ;
· all persons are equal before the law and are entitled without any discrimination to the equal protection by law ;
· everyone will have an effective means to regress against administrative decisions ;
· the independence of judges and the impartial operation of the public judiciary service ;
· protection of the independence of legal profession ;
· clear definition of powers in relation to prosecution in criminal procedure ;
· any person arrested or detained on a criminal charge will have the right to be brought promptly before the judge or other officer authorized by law to decide the lawfulness of his arrest or detention ;
· the entitlement of everyone to a fair and public trial ;

· the right of everyone to defend himself in court in person or through prompt legal assistance, to be given free if he does not have sufficient means to pay for legal assistance ;
· no one will be charged with, tried for or convicted of any criminal offence unless the offence is provided for by law which defines the elements of the offence with clarity and precision ;
· everyone will be presumed innocent until proven guilty according to law ;
· the participating states reaffirm that their domestic legislation will comply with international laws in the field of human rights, including guarantees for the freedom of information and communication, travel, thought, conscience and religion, right of peaceful assembly and demonstration, associations, private property, etc.