George Orwell, in his influential 1940 essay on the novels of Charles Dickens, distilled what he saw as the central problem of political life in any jurisdiction: “How to prevent power from being abused.”

One imperfect but well-tested component in advancing this project is what is referred to as the “rule of law”. Orwell, whom many regard as the most articulate critic of British political life, still identified “an all-important positive English trait: the respect for constitutionalism and legality, the belief in ‘the law’ as something above the state and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible”.

The distinguished British socialist historian, EP Thompson, went further when he argued, in 1977, that: “We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defense of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good.”

Much earlier, due to the unwritten nature of the evolved British constitution, the way was left open for a scholar possessed of remarkable understanding, Professor Albert Venn Dicey, to analyze and describe — indeed, reveal — the essence of this historically tempered set of resilient governance principles.

In 1885, in a foundational book, Dicey identified three core principles of the rule of law: the supremacy of regular law (rather than arbitrary law); equality before the law (no one, whether a private citizen or a public official, is exempt from the duty to obey the law or from the jurisdiction of the courts); and the essence of the United Kingdom’s unwritten constitution was to be found in collective judicial decisions rather than any single written document.

History demonstrates how a Diceyan-influenced, rule-of-law regime has put down profound roots in Hong Kong. It has been stress-tested many times since 1842, most recently following the major insurgency which began in mid-2019. Each time, its durability and remarkable significance have been reconfirmed. It has not only weathered these storms but also provided a set of pivotal institutional values that are woven into Hong Kong’s essential identity

The British system of parliamentary government (where the government was located entirely within the legislature) evolved over a period of some 50 years following Britain’s defeat in the American Revolutionary War in 1781. It featured, at that time, limited franchise elections, and it was incorporated into the largely white components of the British Empire, including Canada, Australia, and New Zealand, from the mid-19th century.

But the new “colony” of Hong Kong, like many other lower-ranked jurisdictions within the British Empire, used a form of government structurally based on the established (pre-parliamentary) government model that applied during the reign of George III (1760-1820). A powerful executive government, headed by the governor, was combined with a governor-appointed Legislative Council (LegCo) exercising attenuated, law-enacting powers.

Combined with this appointed-governance structure, however, were powerful governance principles derived from Diceyan constitutionalism. This framework included an independent judicial-legal system (and legal profession), and commitment to a “single-track” system of regulating the state-citizen relationship. That is, the same courts applied the common law (and LegCo ordinances) to the interaction between the government and residents, as well as in disputes among residents.

In short, British colonial-constitutional thinking was fundamentally influenced by British constitutional thinking. As a consequence, the pivotal rule of law paradigm, with its stress on judicial independence, has been centrally relevant in Hong Kong from the inception of British rule until the present day.

Two other factors that have amplified the effectiveness of the rule of law regime in Hong Kong should also be noted.

First, around 50 years ago, Professor Lau Siu-kai published a groundbreaking article titled: Utilitarianistic Familism: The Basis of Political Stability in Hong Kong. This article provided a foundational explanation of how the British rule of law system in Hong Kong meshed so well with the exceptional, self-reliant effectiveness of arguably the central operational pillar of Chinese culture, the Chinese family. The late Leo Goodstadt, with customary insight, put it this way: “It would have been hard to find anywhere … a people easier to serve and rule. (Hong Kong) people were ideal constituents, the secure foundations on which Hong Kong’s success had been built despite the economic turbulence and political uncertainty.” This emphasizes the depth of these influences on the rule of law in Hong Kong.

Next, the British, from the outset, introduced a unique, bedrock financing system for the new “colony”: land-related revenues derived from a system of universal leasehold land distribution. Under this system, the government retained a core, indefinite proprietorial interest in all land in Hong Kong — and it still does. This system proved to be outstandingly good at raising public revenue, ensuring ample funding to establish and maintain the new rule of law system from the foundation of British-ruled Hong Kong.

In 1999, the leading commentator on Hong Kong’s Basic Law, Professor Yash Ghai, summarized how this system had evolved, arguing that: “Although not perfectly, the Hong Kong legal system was based on the essential principles of the common law. There was equality before the law. Individuals and groups aggrieved by a decision of a government official or public agency could go to the courts for redress.”

History demonstrates how a Diceyan-influenced, rule-of-law regime has put down profound roots in Hong Kong. It has been stress-tested many times since 1842, most recently following the major insurgency which began in mid-2019. Each time, its durability and remarkable significance have been reconfirmed. It has not only weathered these storms but also provided a set of pivotal institutional values that are woven into Hong Kong’s essential identity.

The author is an adjunct professor in the law faculty of Hong Kong University. 

The views do not necessarily reflect those of China Daily.