建设法治中国

香港——中国社会正在迅速形成一个共识: 法治建设是实现包容、可持续、及长久和平与繁荣的一个最重要的前提。因此,我们有必要思考中国现行体制与法治之间的差距。

法治的定义多种多样,但多数权威已经就某些关键的特征达成共识。芝加哥大学的肯尼斯·达姆在其新著《法律与增长的关系》中指出:秘密法和有罪不罚违反法治精神,法治保护个人免遭法律歧视,并对有利于当事人的规则如实执行且允其受益。

英国前首席大法官兼上议院司法委员托马斯·宾厄姆曾提出过一个涵盖范围更广的类似的定义。在宾厄姆看来,法律必须为芸芸众生提供保护,并尽可能做到简单明了、可以预测。所有人都必须接受法律的管辖,并免遭当权者个人裁量权的影响,解决法律纠纷的时间和物质成本也应在可以承受的范围之内。法律面前应当人人平等,同时必须对基本人权给予充分的保护。此外,必须善意合理地行使国家权力,并符合授予其权力的本来目的,同时建立独立法院与立法审查制度,确保政府不能越权操作。法院和其他正式裁决机构应确保程序的公平。国家必须履行其按国际法应当承担的义务。

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