Anaya Nolan
The rule of law is a key core value of Hong Kong, governing the way in which power is exercised in the territory. The principle of 'one country, two systems' was enshrined in Article 5 of the Hong Kong Basic Law, which came into effect in 1997 when Hong Kong was handed over from British to Chinese rule. This principle, which guarantees the maintenance of Hong Kong's common law system, is set to remain in place until at least 2047. However, in recent years, there have been concerns about the potential decline of the rule of law in Hong Kong, with critics pointing to the erosion of judicial independence and basic rights.
| Characteristics | Values |
|---|---|
| Rule of law in Hong Kong's imagination and identity | A key core value of Hong Kong |
| Rule of law's potential decline | Politicisation of the judiciary, used to quell dissent and fulfil the government's authoritarian objectives |
| Rule of law's potential decline | Civil disobedience |
| Rule of law | Legality and equality before the law |
| Rule of law | Rules that restrict discretionary power |
| Rule of law | Judicial independence |
| Rule of law | Government executives should refrain from using the law to achieve political ends |
| Rule of law | The lawmaking process must be fair and conducive to just law |
| Rule of law | Lawmakers should be selected through free and fair elections |
| Rule of law | Hong Kong's common law system appreciates protections of international human rights and the common law principles |
| Rule of law | Hong Kong's independent legal institutions |
| Rule of law | Hong Kong's commitment to international human rights |
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What You'll Learn
The role of the Hong Kong government
The Hong Kong government is one of the key stakeholders in the city's rule of law and judicial independence. The Hong Kong Basic Law, which is a law passed by the Chinese National People's Congress, became the constitutional document in Hong Kong after the handover from British rule in 1997. The Basic Law enshrines the principle of "one country, two systems", which allows Hong Kong to maintain its previous capitalist system and way of life, including its common law system, until at least 2047.
The Hong Kong government has a responsibility to uphold the rule of law and provide remedies to regain public trust in the "one country, two systems" framework. The secretary for justice, as the government's legal advisor, plays a crucial role in assisting the government to respect independent courts and defend the rule of law. However, critics argue that the secretary for justice has enabled the authorities to crack down on civil society and political opposition, undermining basic rights enshrined in the Basic Law and international covenants.
The Law Drafting Division is responsible for drafting all legislation in Chinese and English, ensuring the availability of up-to-date laws in the Bilingual Laws Information System for the public. The Prosecutions Division, headed by the Director of Public Prosecution, prosecutes trials and appeals on behalf of the HKSAR. It generally exercises the Secretary for Justice's discretion to initiate criminal proceedings and handles most criminal appeals, including those in the Court of Final Appeal.
The Hong Kong government has been blamed for the decline in the city's judicial and legal systems, with critics arguing that it has failed to fulfil its obligations to the international human rights regime. The government's actions have been seen as enabling the politicisation of the judiciary and the use of the legal system to suppress dissent, contrary to the core value of the rule of law in Hong Kong.
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The impact of the handover from British rule to China
The handover of Hong Kong from the United Kingdom to the People's Republic of China occurred at midnight on July 1, 1997, marking the end of 156 years of British rule in the former colony. Hong Kong became a Special Administrative Region of China, maintaining its own economic and governing systems from those of mainland China. The handover had a significant impact on both Hong Kong and the United Kingdom.
For Hong Kong, the handover meant a change in sovereignty and a transition from British rule to Chinese rule. The one country, two systems principle established in the handover agreements allowed Hong Kong to retain a "high degree of autonomy" and maintain its existing judicial system. The Hong Kong Basic Law, which came into effect in 1997, became the constitutional document in Hong Kong, providing the framework for its legal system. Under the Basic Law, all laws in force before 1997 were to be maintained, except for any that contravened the new Law or were amended by the legislature of the Hong Kong Special Administrative Region.
The handover also had economic implications for Hong Kong. The territory had a gross domestic product of approximately US$180 billion in the last year of British rule, contributing significantly to the British economy. However, despite the end of British rule, foreign law firms continued to have a strong presence in Hong Kong, benefiting from the more relaxed regulations compared to mainland China.
For the United Kingdom, the handover marked the end of its colonial era in the Asia-Pacific region. Hong Kong was the most populous and economically potent of the British Dependent Territories, constituting approximately 97% of the total population of all British Dependent Territories at the time. The handover resulted in a substantial reduction in the size of the British economy, as Hong Kong's economy was roughly 11% the size of Britain's.
In conclusion, the handover of Hong Kong from British rule to Chinese rule had far-reaching consequences for both Hong Kong and the United Kingdom. Hong Kong transitioned to a new political and legal system under the "one country, two systems" principle, while the United Kingdom experienced a significant loss in colonial prestige and economic power. The impact of the handover continues to shape the political, legal, and economic landscape of Hong Kong and the region.
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The one country, two systems principle
The "one country, two systems" principle was developed by Deng Xiaoping in relation to Hong Kong, Macau, and Taiwan. Hong Kong and Macau were former European colonies, and Taiwan was under Kuomintang control at the end of the Chinese Civil War. The principle was enshrined in Article 5 of the Hong Kong Basic Law, which serves as the constitutional document of the Hong Kong Special Administrative Region (SAR).
The Basic Law states that the socialist system and policies of mainland China shall not be practised in Hong Kong, and that the previous capitalist system and way of life in Hong Kong shall remain unchanged for 50 years after reunification, i.e., until 2047. This period was intended to allow for a high degree of autonomy in Hong Kong, with the region's economic and political systems remaining unaltered. The Basic Law also provides for the maintenance of the common law system in Hong Kong, which is a unique, theoretically hybrid system of civil law and common law.
The "one country, two systems" principle has faced challenges and controversies. The Mainland Affairs Council of the Republic of China cited 218 cases between 1997 and 2007 that allegedly breached the Hong Kong people's rights to self-rule and freedom of speech and involved severe interventions in the judicial system. In 2015, the disappearance of five staff members of Causeway Bay Books, an independent publisher and bookstore, sparked international outcry as cross-border abductions by Chinese public security bureau officials were widely suspected, violating the "one country, two systems" principle. Additionally, the introduction of the Moral and National Education (MNE) program in 2012 was met with opposition as the curriculum was perceived as "brainwashing propaganda".
Despite these challenges, some have expressed a potential extension of the "one country, two systems" principle beyond 2047. Carrie Lam, for instance, has stated that as long as the principle is persisted with and fully understood, there is adequate reason to believe that it will be implemented smoothly in the long term and will not change after 2047. Zhang Xiaoming has also suggested that the National Security Law will ensure that the freedoms granted to Hong Kong can be extended beyond 2047. However, neither Lam nor Zhang has promised such an extension or provided concrete steps to achieve it.
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The erosion of Hong Kong's judicial independence
Hong Kong's legal system was developed under British governance, based on English common law. The "one country, two systems" principle was enshrined in the 1984 Sino-British Joint Declaration, which stipulated that Hong Kong's legal system would remain unchanged for 50 years after its return to Chinese sovereignty in 1997.
Hong Kong's judicial independence was initially showcased by the inclusion of foreign judges from other common law countries, principally the UK, Canada, and Australia. However, in 2024, the credibility and reputation of Hong Kong's judicial system were shaken by the verdict in the historic political trial of the 'Hong Kong 47'. This event prompted the resignation of British judges on Hong Kong's Court of Final Appeal, who cited concerns over the erosion of democratic values and the clash with ideals of political freedom and expression.
The imposition of a new National Security Law (NSL) by Beijing in 2020, following the large-scale social and political movements of 2019, has further contributed to the erosion of Hong Kong's judicial independence. The NSL has faced widespread criticism for diminishing Hong Kong's autonomy and curtailing civil liberties. The choices regarding the remaining and future non-permanent foreign judges will be pivotal in determining Hong Kong's legal independence and rule of law in the coming years.
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The role of foreign law firms
Foreign law firms have had a presence in Hong Kong since before the transfer of sovereignty from the UK to China in 1997. This has allowed them to establish a strong foothold in the region. The "one country, two systems" rule has meant that foreign law firms face much less strict regulations in Hong Kong than in the People's Republic of China. As a result, all of the Magic Circle law firms and major US law firms have large presences in Hong Kong.
However, foreign law firms have seen increasing competition from local firms as PRC firms have become more sophisticated. According to Asia Law & Business, the top foreign Hong Kong law firm of 2007 was Johnson Stokes & Master (now Mayer Brown JSM), while the top PRC law firm was King & Wood PRC Lawyer.
However, it is important to note that the presence of foreign law firms alone cannot guarantee the maintenance of the rule of law in Hong Kong. The Hong Kong government and the National People's Congress Standing Committee in Beijing have been blamed for the decline in Hong Kong's judicial independence and the rule of law. The Standing Committee has issued interpretations of the Basic Law that override decisions of Hong Kong's top court and influenced ongoing court hearings, leading to the disqualification of pro-democracy lawmakers.
To conclude, foreign law firms play a crucial role in Hong Kong's legal landscape and can contribute to the maintenance of the rule of law. However, the protection of judicial independence and basic rights ultimately lies with the Hong Kong government and its commitment to upholding the "one country, two systems" principle.
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Frequently asked questions
The rule of law is a key core value of Hong Kong, governing the way in which power is exercised. It means that the power of the government and its servants is derived from the law as expressed in legislation and judicial decisions made by independent courts.
The "one country, two systems" principle, enshrined in Article 5 of the Hong Kong Basic Law, has been the strongest guarantee of the rule of law in Hong Kong since the handover from British to Chinese rule in 1997. This principle, which contrasts the "socialist system and policies" with "the previous capitalist system and way of life", was set to remain in place until at least 2047.
The National People's Congress Standing Committee in Beijing has been blamed for the decline of the rule of law in Hong Kong, as its decisions have overridden those of Hong Kong's top court and influenced ongoing court hearings, eventually leading to the disqualification of pro-democracy lawmakers. The Hong Kong government has also been criticised for failing to uphold international human rights and for using the law to achieve political ends.
The erosion of the rule of law in Hong Kong has resulted in a decline of trust in the city's judicial and legal systems, and a failure to fulfil its obligations to the international human rights regime. This has also impacted foreign investment and the international business community, which valued Hong Kong's independent legal institutions.
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