Letters | Hong Kong courts, common law yet to adapt to life under ‘one country, two systems’

Recent developments clearly show Beijing leaning towards strengthening the ‘one country, two systems’ principle as applied to Hong Kong. The central government has never deviated from this path – an obvious truth which the courts seem not to grasp

Hong Kong Basic Law

Letters

Published: 6:15am, 25 Nov 2020

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It is an inexorable rule of nature that any organism that cannot adapt to change will perish, and so it is with human institutions. The common law is one such institution.

When Hong Kong was a British Crown colony, English was the language of government, and the common law as practised in Hong Kong sat comfortably within the governing system, even though the bulk of the population was Chinese-speaking.

Determinations by courts tended to be, at that time, brief and focused. They were easily translated into Chinese. Hence, common law became accepted as a workable system generally for the community. This gave the colony many advantages. It enabled Hong Kong to transform itself successfully from an industrial hub to a global financial centre.

A radical change occurred on July 1, 1997, when Hong Kong became a region of China, operating under the principle of “one country two systems”, and Chinese became an official language of the region. Within a few years, Chinese became predominantly the language of government.

How has the common law adapted to such change? The short answer is: hardly at all.

Instead of steering the common law towards accommodation with the principle of one country, two systems, the highest courts in the land have gone the other way – blindly grasping at ill-digested, ill-understood ethical concepts and techniques for enforcing human rights which are unsuitable for present day Hong Kong.

This is particularly so in matters concerning public law, an area of law where courts should be extra-sensitive to the concept of one country, two systems, as it touches, in many instances, upon relations between Hong Kong and the mainland.

For far too long, lawyers have been allowed, indeed encouraged, to play games with the Basic Law, but people do not see this or realise what damage this causes to the rule of law. They are overawed by the mystique of the establishment, rather as peasants were by prayers said in Latin in the Middle Ages. They cannot see that the establishment – with its pomp and rituals, wigs and gowns, bowing and scraping – hides a decadence which is eroding the rule of law.

History indicates that Beijing takes a long view of global events. In what direction, as things stand today, is the central government steering Hong Kong?

Recent developments clearly show Beijing leaning towards strengthening the one country, two systems principle as applied to Hong Kong. This necessarily includes the long continuation of the common law system, well past 2047.

The central government has never deviated from this path – an obvious truth which the courts seem not to grasp.

The one country, two systems principle is a living concept, capable of nuanced application and adapting to change.

Henry Litton, retired judge, Court of Final Appeal, Hong Kong SAR

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