Opinion | How long can Hong Kong courts resist the pressure to act more like those on the mainland?

Hong Kong’s courts are still clinging to their commitment to the rule of law and their role in assuring protection of individual rights against arbitrary state action, but the future is bleak

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New Chief Justice Andrew Cheung attends the ceremony to mark the opening of the legal year, at the Court of Final Appeal, on January 11, 2021. Photo: Now TV

Published: 9:15am, 24 Jan 2021Updated: 9:38am, 24 Jan 2021

No two legal systems could be more different than Hong Kong’s common law system, inherited from British colonialism, and China’s Leninist communist system, imported from Joseph Stalin’s Soviet Union.

Hong Kong’s courts, despite more than 20 years of Chinese rule, are still desperately clinging to their inherited commitment to the rule of law and their role in assuring government under law and protection of individual rights against arbitrary state action.

Mainland courts, while operating under a system that claims to be implementing “a socialist rule of law with Chinese characteristics”, are actually following Marxist theory and Soviet practice by placing law under government and the Communist Party, and serving as instruments of dictatorial control and repression of individual rights.

As Karl Marx put it, law is a tool of the ruling class. “Judicial independence” in China merely means that all local courts are to be insulated from local distorting influences upon their judgments but militantly obedient to the dictates of the central party and judicial apparatus.

In practice, the party is far more important than the constitution and other elements of the law, although formally there is no contradiction since the law turns out to be what the party’s interpretations say it is.

Structurally, the Chinese legal system reflects the West European continental legal system’s influences upon the pre-1917 tsarist system that Vladimir Lenin adapted with socialist flourishes after the Bolshevik Revolution settled down in the early 1920s.