任睇No.1
  • 19º
  • 67%
  • 2023年2月3日 星期五

又中又英——rule of law

  Some readers have asked me to explain the difference between rule of law and rule by law after the government announced it wants to ban the Hong Kong National Party which advocates (supports) Hong Kong independence. Critics of the ban have accused the government of replacing Hong Kong’s tradition of rule of law with rule by law.

  The two sound very similar but are, in fact, very different. The rule of law is easy to explain. It simply means a set of laws that everyone in a society must obey. No one is exempt (excluded, immune) from the set of laws. Even top leaders, such as the president or prime minister, of a country must obey the law. Only judges or juries from an independent judiciary can decide if laws have been broken.

  Rule by law is different even though there are some cosmetic (superficial) similarities. In the rule of law, the government must serve the system of laws in a society. It cannot rise above the law. But in rule by law, the government uses the law as a convenient way to govern. Governments can either follow the law or ignore it if it is not convenient to follow the law. We can use Hong Kong and mainland China as an example.

  In Hong Kong, the power of political leaders is controlled by laws and regulations. Even former chief executive Donald Tsang Yam-kuen had to go to jail after a jury found him guilty of abusing his power.

  China claims it is governed by rule of law but in reality it is governed by rule by law. The judiciary and government prosecutors are controlled by the Communist Party. The constitution allows free speech and free political activities. But these freedoms are ignored when leaders feel they threaten party interests. The case of the late human rights activist Liu Xiaobo and his wife Liu Xia is a good example. He was jailed for advocating political reforms. That’s why critics, fairly or unfairly, say the government’s intention to ban the National Party means Hong Kong is now a society that has rule by law rather than rule of law.



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  當政府宣佈欲取締那主張(advocates)香港獨立的香港民族黨後,有些讀者希望我解釋 rule of law和 rule by law的分別。批評這次取締的人指責政府以rule by law 取代香港傳統的 rule of law。

  二者聽來很相似,事實卻有很大的差異。The rule of law很容易解釋,簡單而言就是法治,即有一套法律是社會上每一個人也得遵守的,無一人能豁免(exempt)在外而不用遵守那套法律;即使是國家最高的元首,例如總統或首相,亦必須遵守法律。只有獨立司法制度中的法官或陪審團,才可以決定哪些情況是違反了法律。

  Rule by law就不一樣了,即使它們有些表面上(cosmetic)的類同。在rule of law中,政府必須效力於社會中的法律系統,而不能凌駕於法律之上。

  然而在 rule by law中,政府是以法而治,將法律用作方便管治的工具,政府可以選擇去遵行法律,但若該法律不利它們,或對它們來說並不合宜,便又可以置之不理。我們可以用香港和中國內地作為例子。

  在香港,政治領袖亦受到法律和條例的規限,即使是前任特首曾蔭權,當被陪審團裁定濫用職權、公職人員失當罪成後,也得進牢獄之中。

  中國聲稱她是法治(rule of law)的國家,實際上她卻是以法治理的(rule by law),其司法部和政府檢察官都受控於共產黨。國家憲法容許言論自由和參與政治活動的自由,但若領導人認為它們會威脅到黨的利益,這些自由也會被無視。

  已故的人權份子劉曉波和他的太太劉霞就是最好的例子。他因為主張(advocating)政治改革而被判監。

  也因此批評者說 (撇除此評論是公正與否),政府企圖取締民族黨,是意味着香港現在是以法而治(rule by law)而非法治(rule of law)的社會。

中譯:七刻

Michael Chugani 褚簡寧

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