Gavin Howe
Hong Kong's legal system is a complex interplay of common law and civil law traditions. The region's legal framework has evolved under the influence of British colonial rule, adopting the English common law system, and the subsequent handover to the People's Republic of China (PRC) in 1997, which introduced elements of the civil law system. The result is a unique hybrid legal system that has sparked interest among commentators. This introduction will explore the interplay between common and civil law in Hong Kong, the challenges of maintaining two legal traditions, and the implications for the region's residents and international standing.
| Characteristics | Values |
|---|---|
| Constitutional framework | Hong Kong Basic Law |
| Hong Kong Basic Law status | National Law of the People's Republic of China |
| Hong Kong Basic Law constitutional status | Hong Kong |
| Principle enshrined in Article 5 of the Basic Law | One country, two systems |
| Article 5 validity | Until at least 2047 |
| Article 5 contrast | Socialist system and policies with the previous capitalist system and way of life |
| Hong Kong's legal system basis | English common law |
| Hong Kong's governance before 1997 | British rule |
| Constitutional documents under British rule | Letters Patent and the Royal Instructions |
| Hong Kong handover | 1997 |
| Hong Kong's legal system | Common law system |
| Applicable laws | PRC laws listed in Annex III to the Basic Law |
| Number of PRC laws applicable in HKSAR | 12 |
| Hong Kong's participation in international organisations | 50 |
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What You'll Learn
Hong Kong's legal system is based on English common law
Hong Kong's current legal system is a result of the "one country, two systems" principle established in the 1984 Sino-British Joint Declaration, which stipulated that Hong Kong would be returned to China after 1997 but that its previous capitalist system and way of life, including its legal system, would remain unchanged for 50 years until 2047. This principle is enshrined in Article 5 of the Hong Kong Basic Law, which has served as the constitutional document in Hong Kong since 1997.
The Hong Kong Basic Law provides that the common law system shall be maintained, and Article 8 specifically assures that the laws previously in force in Hong Kong, including common law, shall be maintained, except for any that contravene the Basic Law or require amendment. This theoretically hybrid system of civil law and common law has been described as unique, although similar arrangements exist elsewhere in the world.
Hong Kong's legal system is governed by various legal bodies, including the Law Society of Hong Kong and the Hong Kong Bar Association, which oversee the conduct of solicitors and barristers, respectively. The Legal Policy Division and the Secretary for Justice's Office provide support and advice on legal policy issues, including human rights and the Basic Law. The Civil Division is responsible for providing legal advice to the government on civil law, drafting commercial contracts, and conducting civil litigation, while the Law Drafting Division drafts all legislation in both Chinese and English.
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Hong Kong was governed by the UK for over 150 years
Hong Kong's legal system was developed under British governance and was based on English common law. The UK governed Hong Kong as a colony for over 150 years, until 1997, when Hong Kong became a Special Administrative Region of China.
During British rule, the constitutional documents that governed Hong Kong were the Letters Patent and the Royal Instructions. Judicial cases were generally appealable to the Judicial Committee of the Privy Council in the UK. Hong Kong's legal system was therefore a common law system, as opposed to a civil law system. Common law systems are based on case law and judicial precedent, whereas civil law systems are based on written statutes and codes.
The common law system was maintained after the handover to China in 1997. The Hong Kong Basic Law, which came into effect in 1997, provides the constitutional framework for Hong Kong and enshrines the principle of "one country, two systems". This means that Hong Kong's previous capitalist system and way of life, including its legal system, would remain unchanged for a period of 50 years until 2047.
The Basic Law provides that the common law system shall be maintained, and it is described as a theoretically hybrid system of civil law and common law. Hong Kong's legal system is unique, with some commentators pointing to the socialist law tradition instead of the civil law tradition. The Basic Law also provides for the protection of human rights, and any laws that contravene it are unconstitutional and are of no effect.
Hong Kong has signed numerous international treaties and agreements on its own, covering areas such as free trade, taxation, and investment promotion and protection. It also participates as a member of several international organisations, such as the World Trade Organization (WTO) and Asia-Pacific Economic Cooperation (APEC).
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Hong Kong was returned to China in 1997
Hong Kong was returned to China on July 1, 1997, after 156 years of British rule. The handover ceremony was held on June 30, 1997, at the new wing of the Hong Kong Convention and Exhibition Centre in Wan Chai. The principal British guest was Prince Charles, who read a farewell speech on behalf of Queen Elizabeth II. The newly elected Labour prime minister, Tony Blair; the foreign secretary, Robin Cook; the departing governor, Chris Patten; and the chief of the Defence Staff, General Sir Charles Guthrie, also attended. Representing the People's Republic of China were the CCP general secretary and Chinese president, Jiang Zemin; the Chinese premier, Li Peng; Vice Premier and Foreign Minister, Qian Qichen; Vice Chairman of the Central Military Commission, General Zhang Wannian; and the first chief executive, Tung Chee-hwa. The event was broadcast around the world, with a few thousand Hong Kongers protesting the turnover, which was otherwise celebratory and peaceful.
The return of Hong Kong to China has been referred to as the "Handover of Hong Kong", the "reunification of Hong Kong", or the "return of Hong Kong to the motherland". The historical context of the handover dates back to the Opium Wars, during which Britain invaded China and occupied Hong Kong in 1839. In 1841, China ceded Hong Kong Island to Britain through the Convention of Chuenpi, and in 1842, the Treaty of Nanking was signed, formally ending the First Opium War. The widespread use of opium in China yielded high profits for British exporters while crippling the Chinese economy.
In the lead-up to the handover, there were concerns about the future status of Hong Kong, particularly regarding the lease of the New Territories, which were set to expire in 1997. The 1984 Sino-British Joint Declaration addressed these issues, with China gaining partial control of Hong Kong and adopting the "one country, two systems" principle. This principle ensured that Hong Kong's legal system, developed under British common law, would remain unchanged for 50 years until 2047.
Following the handover, Hong Kong's constitutional framework is provided by the Hong Kong Basic Law, a piece of National Law of the People's Republic of China. The Basic Law maintains the common law system while incorporating elements of civil law, creating a theoretically hybrid system. Hong Kong's legal system continues to operate independently, with the Law Reform Commission working to make the law more effective, accessible, and in tune with the community's needs.
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Hong Kong's legal system is a hybrid of civil law and common law
Hong Kong's legal system is unique in its blend of civil and common law traditions. The common law system, based on English common law, forms the foundation of Hong Kong's legal framework. Judicial cases were historically appealable to the Judicial Committee of the Privy Council in the UK during British rule. The Basic Law ensures the continuity of this system, stating in Article 8 that "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".
However, Hong Kong's legal system also incorporates elements of civil law. The Basic Law itself is a product of the civil law tradition, passed by the Chinese National People's Congress in accordance with Article 31 of the Chinese Constitution. While the common law system focuses on judicial precedent and interprets laws through past decisions, civil law systems are based on codified statutes and written laws. Hong Kong's hybrid system allows for the coexistence of these two traditions, with the Basic Law serving as the highest authority and any conflicting laws being deemed unconstitutional and ineffective.
The interaction between common law and civil law in Hong Kong is complex and has evolved over time. The Legal Reform Commission plays a crucial role in maintaining the excellence of Hong Kong's legal system, proposing reforms that make the law more effective, accessible, and aligned with community needs. Hong Kong's ability to participate in international organisations, such as the World Trade Organization and Asia-Pacific Economic Cooperation, further adds to the complexity and uniqueness of its legal landscape.
In conclusion, Hong Kong's legal system is a rare example of a successful hybrid of civil law and common law traditions. The "one country, two systems" principle has allowed Hong Kong to preserve its common law heritage while integrating civil law elements from the mainland Chinese legal system. This blend of legal traditions has created a dynamic and adaptable legal framework that meets the unique needs of Hong Kong.
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Hong Kong's legal system is maintained by the Hong Kong Basic Law
Hong Kong's legal system is a mix of common law and civil law. It was developed under British governance, based on English common law. Hong Kong's legal system is maintained by the Hong Kong Basic Law, which is a piece of National Law of the People's Republic of China. The Basic Law has constitutional status in Hong Kong and sets out the country's basic policies regarding Hong Kong. It was adopted at the Third Session of the Seventh National People's Congress on 4 April 1990 and officially promulgated on the same day. It has been in effect since 1 July 1997, after the handover of Hong Kong from the United Kingdom to China.
The Basic Law enshrines the “one country, two systems” principle, which allows Hong Kong to maintain its capitalist system and way of life, including its legal system, separate from mainland China until at least 2047. This principle is enshrined in Article 5 of the Basic Law, contrasting the "socialist system and policies" with "the previous capitalist system and way of life". Hong Kong's high degree of autonomy is also guaranteed by the Basic Law, which allows it to maintain its own executive, legislative and judicial branches.
The Basic Law sets out the sources of law, the relationship between Hong Kong and the Central Government, the fundamental rights and duties of Hong Kong residents, and the branches of local government. It also provides for the protection of human rights and the welfare and benefits of civil servants. The courts of Hong Kong have the power to review acts of the executive or legislature and declare them invalid if they are inconsistent with the Basic Law. Any laws that contravene the Basic Law are unconstitutional and are of no effect.
Hong Kong courts use the purposive approach to interpret the Basic Law, adopting the common law approach due to their separate legal system from mainland China. They consider the context and purpose of the provisions, accounting for historical context as well as new social, political and historical realities. The interpretation of the Basic Law by the Hong Kong courts is politically contentious, with some residents viewing it as an intrusion by the central government in violation of the "one country, two systems" policy.
The Hong Kong legal system is supported by various divisions and bodies, including the Legal Policy Division, the Secretary for Justice's Office, the Civil Division, and the Law Drafting Division. The Law Society of Hong Kong and the Hong Kong Bar Association govern the conduct of solicitors and barristers, respectively. Legal aid is available for eligible persons in civil proceedings, depending on their financial circumstances.
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Frequently asked questions
Hong Kong operates under a hybrid system of both common law and civil law.
The Hong Kong Basic Law is the constitutional document in Hong Kong.
The Hong Kong Basic Law came into effect in 1997 after the handover to China.
The Basic Law ensures the maintenance of Hong Kong's common law system and provides for the protection of human rights.
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