PANEL SESSIONS V WEDNESDAY JUNE 27 2018 9.00 AM – 10.30 AM

Room: CYTT 6.24

  • THE RULE OF LAW AND NON-DEMOCRATIC REGIMES
    To what extent and in what form can the rule of law exist in non‐democratic jurisdictions? This panel explores issues related to these perennial questions from fresh angles. The first two papers expound the nature of the rule of law. Jeff King argues that state regulation is an important element of the rule of law, but that this does not necessarily enable the rule of law rhetoric to serve authoritarian states. Ewan Smith‘s paper critically evaluates accounts of the rule of law developed in authoritarian constitutional orders which present the rule of law as a set of requirements that rectify officials rather than institutions. The next two papers explore what room there might be for courts to establish and sustain the rule of law in non‐democratic regimes. Ruiyi Li presents a case for judicial enforcement of constitutional rights in China, a one‐party state, while Julius Yam analyses how electoral politics in a hybrid regime such as Hong Kong can sustain judicial independence.
  • The Rule of Law, State Protection, and Authoritarianism
    The liberal orientation of rule of law discourse has treated the state as the primary antagonist against rule of law values. However, in much of the world, the provision of law and regulation of private force is plausibly identified as also being a core rule of law value. The protective function of state law, and its rightful place in rule of law discourse, is an important though largely overlooked feature of the rule of law concept. However, does admitting its role put rule of law rhetoric in the service of authoritarian states, by conflating the ‘rule of law‘ and ‘law and order’? This paper confronts this challenge by arguing that it does not. What is rather required is a conception of the rule of law that captures the importance of regulation without providing succour to tyrants.
  • The Expanding Symmetry of the Rule of Law
    Giovanni Sartori ‘democracy on a large scale is not the sum of many little democracies.‘ I ask the same question of the rule of law. If rule of law applied similarly to every subsidiary unit, would this achieve a more complete rule-of-law? Most accounts of the rule of law stress the importance of congruence between law and administration. However, there are differences of emphasis. Some accounts present the rule of law as a set of requirements that rectify officials rather than institutions and this idea has deep roots in the Chinese constitutional and philosophical tradition, but the contrast is fine. Institutions are created and maintained by officials. In this paper, I explain why the distinction is both real and important. As Andrew Nathan observes, government by moral, rather than institutional reform leads to “authoritarianism that says that rules and regulations are powerless … in the absence of indoctrination … and such that indoctrination makes constitutions superfluous.“
  • Can Constitutional rights be Justiciable in China?
    It is well known that the Constitution of China is not justiciable. In practical terms, the Constitution of China has effect only after its provisions are further enacted into ordinary legislation. The Court protects constitutional rights generally through two methods: (a.) the application of specific legislation interpreted in line with the constitution; (b.) the application of broad legal terms of legislation interpreted in line with the constitution. However, legislation can never cover all aspects of behaviour, so legal gaps unavoidably emerge. In such cases, neither specific legislation nor broad legislation protects constitutional rights. This paper will argue that the Court can, in these instances, directly apply the Constitution to protect constitutional rights in the absence of ordinary legislation.
  • Judicial Independence in Hong Kong from a Hybrid Regime Perspective
    Studies on judicial politics in democracies have found that electoral competition is an important factor contributing to de facto judicial independence. There has been, however, limited research on the relationship between electoral politics and judicial independence in non-democracies, mainly because it is assumed that elections in non-democracies are shams. The literature has largely overlooked the challenges of exploring courts in hybrid regimes, i.e. non-democracies with competitive electoral systems. Electoral competition empowers hybrid regime courts because both the incumbent and opposition face a higher degree of political uncertainty. This Paper draws on the experiences of Hong Kong courts to better explore the judicial strategies used to maneuver through politics and the conditions for judicial independence in a hybrid regime. Questions unique to the context of Hong Kong will also be discussed.