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Hong Kong at 25
OpinionComment
Henry Litton
Henry Litton

Opinion | Hong Kong needs a common law with local characteristics

  • Hong Kong has retained the common law system of jurisprudence, wherein all the case law is expressed in English
  • A greater effort should be made to ensure that the legal system harmonises with the Basic Law and is compatible with the wider national interest

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Judges attend the ceremonial opening of the legal year at City Hall in Central on January 13, 2020. Photo: Robert Ng
Henry Litton
When Britain and China began formal negotiations over Hong Kong’s future in 1982, Hong Kong was an outright autocracy. The governor had plenipotentiary powers. He presided over the Legislative Council, with senior government officials serving as members, and the rest were the governor’s appointees.
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The same held true in December 1984 when the joint declaration was signed, “settling” the future of Hong Kong. The joint declaration made no provisions for representative government of any kind. That was entirely a matter of China’s internal affairs.

Against this background, it can be seen that the Basic Law for the Hong Kong Special Administrative Region, promulgated six years later, was a highly liberal and enlightened instrument. It held out the prospect of universal suffrage for the legislature (Article 68) and for the selection of the chief executive for appointment (Article 45).

The Basic Law entrenched the common law as the bedrock of Hong Kong’s capitalist system and lifestyle (Article 8). Common law is a system derived from judgments of English judges of the 19th and 20th centuries, supplemented later by judgments of superior courts in other common law jurisdictions.

All this case law is expressed in English. Article 9 of the Basic Law made English an official language besides Chinese.

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Article 5 of the Basic Law left open the duration of Hong Kong’s capitalist system and lifestyle, within the overarching principle of “one country, two systems”. That principle, it is now clear, will continue well beyond 2047, thus safeguarding Hong Kong’s leading position in the world as a financial and trade centre.
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