EJ Insight » Hong Kong
The semi-official Chinese Association of Hong Kong and Macau Studies, founded by Chen Zuoer (陳佐洱), former deputy director of the State Council’s Hong Kong and Macau Affairs Office, held a seminar last month to discuss Hong Kong’s separatist movement.
One of the most notable policy recommendations came from Mo Jihong (莫紀宏), deputy director of the Institute of Law of the Chinese Academy of Social Sciences.
If it is implemented, we will soon see the end of “one country, two systems”.
Mo urged a “new perspective” on Hong Kong’s judiciary and legal system: since the special administrative region was established in accordance with the Chinese constitution, the country’s most fundamental legal document must also be the guiding principle of Hong Kong’s legal system.
“Though the Basic Law provides that the Hong Kong laws shall remain effective, they, including judgments, ordinances and other statute law, have now become part of the Chinese legal system with the recognition by the National People’s Congress … Some people are still absorbed in their own version and ignore the country’s constitution,” said Mo.
In a nutshell, the common law concepts must give way to the Chinese constitution as a new golden thread that runs through the fabric of Hong Kong’s legal system.
“Especially on national security or territorial integrity issues, [Hong Kong courts and judges] must adhere to the Chinese constitution, rather than referring to pre-handover laws or precedents in Britain or the United States.”
Mo’s comments are all about how to remold and mainlandize the city’s legal system.
However, let’s not forget that there are three integral provisions in the Basic Law that prevent such “mainlandization”:
Article 5
The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.
Article 8
The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.
Article 11
In accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.
There is not even the slightest trace of Chinese socialist law in these clauses. Mo’s words directly contradict the Basic Law.
The legislative intent of the Basic Law is clear from its emphasis on common law concepts when delineating Hong Kong’s political, economic, social and human rights after the handover.
In fact, the phrase “common law” appears multiple times throughout the document.
It is not difficult to conclude that the Basic Law will be flouted in a fundamental manner if common law principles are erased and replaced by the Chinese constitution.
The Chinese Communist Party’s animosity against the common law runs deep, since that legal tradition embodies the protection of human rights and separation of powers and thus runs counter to Beijing’s ideology.
The spirit of the common law, as distinguished American legal scholar Roscoe Pound had it, “is characterized by an extreme individualism … unlimited valuation of individual liberty and respect for individual property.
“Assuming that the abstract individual was the center of all things and that the state existed only to secure his interests, it was thought that courts and law had for their function to prevent use of this machinery, set up to protect the individual and to secure his rights, as a means of oppressing him and depriving him of his rights.”
In today’s political context, Beijing has a deep-seated fear that the common law, if left to flourish in Hong Kong, will lead to “desinicization”, the eradication of China’s suzerainty.
One recent proof is a commentary carried in Ming Pao that blasts local courts and judges for trying to make the Basic Law, originally “a distinctively civil law document”, more like a common law one.
The article, by two pro-Beijing legal scholars, says: “Courts in Hong Kong have, since the handover, made substantial and extensive references to international treaties and precedents of other common law jurisdictions, and this practice warrants attention, as the Basic Law’s legislative intent has been blurred and so is the legal framework of the Chinese constitution, which ought to be the foundation of the Basic Law and Hong Kong’s legal system.
“There might be a politically motivated imperative to desinicize, but the right direction is to make Hong Kong laws more Chinese.”
The party mouthpiece People’s Daily already set the tone in a front-page editorial in 2014 following the release of a controversial white paper on Hong Kong: the Chinese constitution is rarely referred to as a vital precedent by courts in Hong Kong when adjudicating cases; rather, foreign cases and judgments are being used to interpret the Basic Law, and the constitutional basis of one country is gone, which must not be allowed.
Hong Kong needs two levels of gate-keeping to make sure its own system is safe and sound: one is a physical boundary, another one is intangible – the city’s common law system.
“One country, two systems” can be boiled down to one simple question about individual safety and freedom: even if it’s illegal on the mainland, a certain act can still be legal in Hong Kong.
The city’s common law system guarantees the place is still a safe harbor for alternative opinions.
The bookseller abduction scandal has already shattered the physical border.
Mainlandizing Hong Kong’s laws will cause the legal retaining wall to crumble.
Translation by Frank Chen
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