As I heard the news about the new government budget pegged to the “Vision 2030 for Rule of Law” project, three questions floated in my mind:
- What does the rule of law of mean in this project?
- What does the rule of law look like in contemporary Hong Kong?
- What are the implications on the future of the rule of law in the Digital Age?
How these questions would be addressed by the different stakeholders involved could be influential on the effectiveness of the project. A few people have expressed their views on Question 1 already; some of these views are captured in this Bloomberg article. And, much has been written about Question 2. I want to focus on Question 3.
I think the “Vision 2030 for Rule of Law” project should be an excellent opportunity for considering the roles of innovation and technology in the law and the vision for the future of the rule of law.
Vision 2030 for Rule of Law
In its 2020-21 Budget Speech on February 26, 2020, the Hong Kong Government announced in respect of professional services (with emphasis added):
83. Respect for the rule of law and independence of the judiciary are among the cornerstones underpinning Hong Kong’s success. I will earmark about $450 million for the Department of Justice to implement the “Vision 2030 for Rule of Law” project so as to strengthen our community’s understanding of the concept of the rule of law and its implementation.
But first, what exactly is the “Vision 2030 for Rule of Law” project? This is what I have found online:
The Chief Executive’s 2019 Policy Address, October 2019:
Launch an initiative in 2020, namely, “Vision 2030 for Rule of Law” for the promotion and education of the rule of law. As a long term commitment towards 2030, a dedicated inclusive platform will be established for stakeholders, including youth, practitioners and experts, to take forward the initiative through academic and professional exchanges, research, capacity building and activities to promote and reinforce the rule of law.
The Secretary for Justice’s speech at Ceremonial Opening of the Legal Year 2020, January 2020
Importantly, the Department [of Justice] will launch a 10-year project entitled “Vision 2030 for Rule of Law”. This initiative seeks to promote the proper understanding and recognition of the rule of law by studying its various elements through research, stakeholders’ collaboration and capacity building, thereby contributing to the sustainable development of inclusive and fair societies at both the domestic and international levels
The Secretary for Justice’s blog contains similar information. It will be interesting to see the details as the initiative rolls out.
What does the rule of law look like in contemporary Hong Kong?
I will leave the jurisprudence to the constitutional legal experts, but a few key points are worth noting to give context to Question 3 (the future of the rule of law).
There’s no monolithic definition of the rule of law. There are many versions! It helps to illustrate the flavor of the spectral nature of the rule of law. Here is one explanation by Dr. Luigi Ferrajoli in the chapter “The Past and the Future of the Rule of Law” in the book “The Rule of Law History, Theory and Criticism” (Springer, 2007; footnote omitted):
The phrase “rule of law” is commonly given two different meanings that should be kept rigorously distinct. In the broadest, or weak or formal sense, it means any legal system in which public powers are conferred by law and wielded in the forms and by means of the procedures the law prescribes. In this sense, which corresponds to the German Rechtsstaat, all modern legal systems in which public powers have a legal source and form are “legal states” in a merely formal meaning of the “rule of law”. In the second, strong and substantive sense, “rule of law”, instead, stands only for those systems in which public powers are also subject to (and hence limited or constrained by) law not only in their form, but also in the content of their decisions. In this meaning, prevalent in continental Europe, the phrase “rule of law” denotes legal and political systems in which all powers, including legislative power, are constrained by substantive principles normally provided for by the constitution, such as the separation of powers and fundamental rights.
There are other interpretations and explanations.
As a starting point, Hong Kong’s rule of law are framed by its “mini-constitution,” the Basic Law. A full and frank analysis of what the rule of law looks like in action requires an examination of inextricably linked concepts, for examples:
- How laws are “created” (and the legislative issues of authority and legitimacy);
- How democratic values, procedures, and institutions contribute to the legal process;
- The level of public knowledge and awareness of the law;
- The level of enforcement of the law, administration of justice, and access to justice;
- The state of obedience to the law by all stakeholders concerned, etc.
There are useful civic education resources provided by local and overseas online platforms, such as The University of Hong Kong (HKU), The United Nations Office on Drugs and Crime, and The Council of Europe.
What are the implications on the future of the rule of law in the Digital Age?
What would a vision for the rule of law in 2030 look like? The vision should be forward-looking and consider issues related to the future of law and the future of the rule of law.
The rule of law is a concept rich with history, culture, and philosophy. And, the concept is dynamic as it evolves with the zeitgeist. So, the topics below could be examined in the “Vision 2030 for Rule of Law” project:
- The ethics of artificial intelligence (A.I.);
- The role of technology in the legal process;
- Encouraging legal innovation to strengthen the rule of law.
The project could empower the growth of further research and public education on programmatic decision-making in the public and private sectors (e.g. software-based sentencing guidance). There are several research initiatives in Hong Kong dedicated to A.I. ethics (see these HKU and HKUST initiatives). This is a field with broad implications on data privacy (e.g. the right to forget) and discrimination law (e.g. algorithmic bias), among other areas.
But why stop there? Why not lead with action by investing in and making available to the public technologies enhancing access to justice more directly? E.g. technologies that make access to and delivery of quality legal services more cost-efficient and effective. Indeed, the Secretary for Justice, in her keynote address at the 7th Asia Pro Bono Conference in 2018, noted:
Technology has an important role to play in strengthening the infrastructure of pro bono work. We can see more and more application of technology in providing pro bono services. For example, there are websites facilitating the involvement of pro bono lawyers by connecting them with the underprivileged through online platform. Some websites help low-income people by providing answers to questions about legal rights, court information, self-help tools to complete legal forms, and links to social service agencies. One may expect that in the near future, pro bono clients and lawyers may match through automated intelligent means, that will enhance and provide such services to even more people who are in need.
In applying technology in legal services, the Department of Justice (DoJ) encourages the development of online dispute resolution. As mentioned earlier, access to justice includes providing means to the underprivileged to protect their legal rights. In this connection, dispute resolution services help create more paths to resolve conflicts and achieve this aim.
Mainland Chinese courts have adopted robustly online dispute resolution (ODR), and it remains to be seen how well ODR will be implemented in Hong Kong. ODR would help clear the growing backlog of proceedings in Hong Kong courts, where many cases and facilities have been suspended due to the COVID-19 situation.
What does “rule of law” really mean? Indeed, what does “rule by law” mean (if we were comparing)? There are massive tomes written about the rule law as a concept. And, we shouldn’t be glib in adopting labels and catchphrases if we genuinely wished to improve the rule of law and devise practical solutions as a matter of public policy.
While still too early to tell, I hope Hong Kong would seize the opportunity provided by the “Vision 2030 for Rule of Law” project to better invest in the future of the rule of law in Hong Kong.