The constitutional arrangements for the post-1997 legal order in Hong Kong expressly contemplate some limited meshing of the Hong Kong and Chinese legal systems. Whether the meshing process goes so far and no further or ventures beyond what is now planned depends on the prospects of achieving the promised “high degree of autonomy” for Hong Kong and of maintaining the Basic Law as a meaningful constitution for the territory in the post-1997 period. Such prospects can be reviewed but not predicted. In this article, some of the various issues are surveyed, and it is concluded that, absent political catastrophe, the Basic Law can be made to work if the judges, to whom is guaranteed security of tenure, determine to defend it.
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References
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1. Attributed, I now discover, to George Bernard Shaw, though I confess that hitherto I have always blamed H. L. Mencken.
2.
Kevin Lane sees the buffer as particularly useful in maintaining the international status of Hong Kong; see his Sovereignty and the Status Quo: The Historical Roots of China's Hong Kong Policy (Boulder, CO: Westview Press, 1990), p. 140.
3.
3. See Stanley Lubman's wise observations about the difficulties confronting Western observers of Chinese legal developments in his “Introduction,” in Domestic Law Reforms in Post-Mao China, ed. Pitman B. Potter (New York: M. E. Sharpe, 1994), pp. 13-14.
4.
See my review in Asian Studies Review, 17(1):214 (1993).
5.
Carol A. G. Jones , “Capitalism, Globalization and Rule of Law: An Alternative Trajectory of Legal Change in China,”Social and Legal Studies, 3:195 (1994).
6.
6. “In summary, China has made a significant step towards the rule of law by enacting the Administrative Litigation Law in 1989, a law which checks the omnipotent influence of administrative organs in China. It is a new thing for ordinary citizens in China who now have recourse to formal avenues of appeal against unfair government decisions. However, the general political and social environment and the defects in the judicial review system itselfhave severely circumscribed the effectiveness of the judicial review system. From the analysis above, one can see that many areas of decision-makers' actions, such as administrative organs' rule-making activities, party organization and [state-owned enterprises'] actions affecting individuals, and wide-ranging `internal actions,' are in fact outside the scope of judicial review. Finally, the lack of judicial independence and low level of competence of administrative law judges further limit the effectiveness of the judicial review system.”Song Bing, “Assessing China's System of Judicial Review of Administrative Actions,”China Law Reporter, 8(1-2):1, 19-20 (1994).
7.
7. See, for example, Conita S. C. Leung, “Conceptual and Constitutional Bases for Chinese Administrative Law,”Bulletin of the Australian Society of Legal Philosophy, 17(58-59):175 (1992).
8.
This is an appropriate though difficult standard by which to assess the achievement of the rule of law. Cf. Carlos Wing-hung Lo, China's Legal Awakening: Legal Theory and Criminal Justice in Deng's Era (Hong Kong: Hong Kong University Press, 1995).
9.
9. It is reflected, for example, in the first report of the Foreign Affairs Committee, Relations Between the United Kingdom and China in the Period up to and Beyond 1997 (London: Her Majesty's Stationery Office, 1994), vol. 1, para. 115.
10.
10. Peter Wesley-Smith, “The Proposed Establishment of a `China Office' in Hong Kong,”Journal of Oriental Studies, 19(2):175 (1981).
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11. Donnithorne, “Hong Kong as an Economic Model,” pp. 283-284.
12.
12. See Christopher Munn, “ `Scratching with a Rattan': William Caine and the Hong Kong Magistracy, 1841-1844,”Hong Kong Law Journal, 25(2):213 (Aug. 1995).
13.
13. “Reception to Dr. Sun Yat-sen,”Hong-kong University Union Magazine, pp. 2-4 (June 1923).
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14. America Through the Spectacles of an Oriental Diplomat (New York: Frederick A. Stokes, 1914), p. 176.
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15. Linda Pomerantz-Zhang, Wu Tingfang (1842-1922): Reform and Modernization in Modern Chinese History (Hong Kong: Hong Kong University Press, 1992), pp. 178-179.
16.
16. “The Rule of Law and Capitalism: Reflections on the Basic Law,” in Hong Kong, China and 1997: Essays in Legal Theory, ed. Raymond Wacks (Hong Kong: Hong Kong University Press, 1993).
17.
17. The most elaborate account is by Yash Ghai, “Interpretation of the Basic Law of the Hong Kong Special Administrative Region,” in Law Lectures for Practitioners 1995, ed. Janet Burton (Hong Kong: Hong Kong Law Journal, 1995).
18.
18. These are when (1) the case requires interpretation of provisions of the Basic Law concerning affairs that are the responsibility of the Central People's government or the relationship between the central authorities and the SAR; (2) the interpretation will affect judgment; and (3) the court's judgment is not appealable.
19.
19. Ghai, “Interpretation of the Basic Law,” p. 129.
20.
20. Ibid., p. 111.
21.
21. “The response of the Chinese government [to Patten's modest proposals] was loud and antagonistic, reawakening and confirming the fears which had been Hong Kong's first reaction to the prospect of rule from Beijing but which had been rather lost sight of in the pursuit of democracy.”Hugh D. R. Baker, “Social Change in Hong Kong: Hong Kong Man in Search of Majority,” in Greater China: The Next Superpower? ed. David Shambaugh (New York: Oxford University Press, 1995), p. 225.
22.
22. See Yash Ghai, “Back to Basics: The Provisional Legislature and the Basic Law,”Hong Kong Law Journal, 25(1):2 (Feb. 1995), arguing that the decision to establish the provisional legislature “violates the letter as well as the spirit of the Sino-British Joint Declaration and the Basic Law of the SAR.”
23.
23. Keith, China's Struggle for the Rule of Law (New York: St. Martin's Press, 1994), p. 187.
24.
Berry Hsu , The Common Law in Chinese Context (New York: M. E. Sharpe, 1992), chaps. 6 and 7.
25.
Edward J. Epstein , “China and Hong Kong: Law, Ideology, and the Future Interaction of the Legal Systems,” in The Future of the Law in Hong Kong, ed. Raymond Wacks (New York: Oxford University Press, 1989), pp. 63-64.
26.
26. For example, it has recently been suggested that the Legislative Council (Powers and Privileges) ordinance, which assists legislators in scrutiny of the administration, is inconsistent with the “executive-led” system of government enshrined in the Basic Law and should be repealed.
27.
27. There are a number of ordinances, such as those affecting the enforcement of public order, that Hong Kong would like to dispense with or at least amend, but China will not agree and has promised that, if such laws are unilaterally repealed before 1997, they will be reenacted afterward.
28.
28. For example, it would not be appropriate, given Hong Kong's return to China, “for patents examined and approved by the European Patent Office to be registered in Hong Kong as it would not fit in with the principles of `one country, two systems' and safeguarding the long-term prosperity and stability of Hong Kong defined by the Basic Law and the Sino-British Joint Declaration.”Geng Yezhong, “On the Patent System of Hong Kong After 1997—With an Appraisal of the Report on Reform of the Hong Kong Patent System,”China Patents and Trademarks, 2:68, 69 (1995).
29.
29. Such as those required by Art. 23 of the Basic Law.
30.
30. See generally Epstein, “China and Hong Kong.”
31.
Kam Yiu-yu , “Decision-Making and Implementation of Policy Toward Hong Kong,” in Decision-Making in Deng's China: Perspectives from Insiders, ed. Carol Lee Hamrin and Suisheng Zhao (New York: M. E. Sharpe, 1993).
32.
32. For a summary of such factors, see Peter Wesley-Smith, “China and Hong Kong under the Basic Law: The Nominal and the Normative,”Bulletin of the Australian Society of Legal Philosophy, 17(58-59):223 (1992).
33.
33. “Before celebrating Tibet's autonomy [on the thirtieth anniversary of the creation of the Tibet Autonomous Region], China would do well to begin honoring it.”“The Lama's Lament: Autonomy for Tibet,”Far Eastern Economic Review, 31 Aug. 1995, p. 5.
34.
See also Kuan Hsin-chi, “Power Dependence and Democratic Transition: The Case of Hong Kong,”China Quarterly, 128:92 (Dec. 1991).
35.
35. Keith, China's Struggle for the Rule of Law, p. 206.
36.
36. “A 45-Minute Return Journey,”Eastern Express, 18 Aug. 1995, p. 37.
37.
37. “Ingestion for Hong Kong, Indigestion for Beijing,”International Herald Tribune, 23 Feb. 1994.
38.
38. Stephen Sedley, “The Sound of Silence: Constitutional Law Without a Constitution,”Law Quarterly Review, 110:270, 277 (Apr. 1994).
39.
39. See O'Neill, “Can Hong Kong Survive as a Common Law Enclave?” O'Neill argues that Chinese capitalism differs “more in degree than in kind from Western forms” and thus, he implies, Professor Ghai's thesis is overdrawn.
