Hong Kong and Comparative Public Law

As already noted, I have spent this week in Hong Kong, visiting at HKU Law’s brilliant and vibrant Centre for Comparative and Public Law. It is a fascinating time to be in Hong Kong. Elections for the Legislative Council take place today (Sunday 4th September), and the political arena is alive with calls for everything from Hong Kong independence (although they are not in the majority) to a return of Hong Kong to the UK (definitely not the majority!). My dominant sense, though, from the week spent contributing to a roundtable on the HK Basic Law’s Article 23 (this is a useful primer), speaking to PhD students, speaking with practicing lawyers and lawyers in training is that people are deeply concerned with maintaining not only the Hong Kong way of life but also—and fundamentally connected therewith—the Rule of Law.

Hong Kong is a fascinating place to think and talk about the Rule of Law. Nebulous as that concept is, in this jurisdiction it has acquired an almost totemic importance. The reasons for this are many, but they at least arguably include its construction in (Western) legal culture as a clear (and preferable) alternative to ‘rule by law’ (perceived to be the dominant approach in China), where “‘rule by law’ merely invoked the existence of law within the state’s governing process, while ‘rule of law’ implied more progressively the supremacy of law and the curtailment of arbitrary government by law”.[1] The valorisation of the Rule of Law to distinguish Hong Kong from China, both before and after 1997, is of course neither the only symbolic distinction between the two, nor unproblematic in itself. For Chu Yiu Wai, “the Rule of Law inherited from the colonizers has acquired the status of a grand narrative capable of masking its own injustices”,[2] while Carol Jones notes that in Hong Kong “Rule of law [became a] talisman against the anticipated depredations of a post-1997 Chinese government”[3] and, effectively, a core part of Hong Kong’s resistance to the limited possibilities of politics. Every nation, state and polity has its founding myth(s), evoking the past and laying claim to shaping the future, and for Hong Kong one of those ‘origin myths’, as they are sometimes called, may well be Rule of Law. (In that, of course, Hong Kong has much in common with many polities).

Having spent some time here, I am even more surprised than I was before I visited at how little attention some comparative public lawyers seem to give Hong Kong in the broader scheme of things. Not only is it a fascinating common law system, with a complex and challenging constitutional structure, but it also offers comparativists with relatively little knowledge of Chinese public law (and many of us fall into that camp) a ‘way in’, particularly through the role of Standing Committee in interpreting the Basic Law. Today’s LegCo elections, and the relationship between the newly constituted Council and the Chief Executive in the coming years, will be key to determining the next steps in the increasingly intense process of determining Hong Kong’s legal and constitutional future.

Thus, the immediate and medium-term future of Hong Kong are really worth watching for anyone interested in a transition from a colonial system of governance into a Communist system, while maintaining a common law legal system—something of which there are few examples (Macau started from a civil law base, and is somewhat less interesting to the comparativist starting from a common law position, but here‘s a syllabus/primer on the legal system there anyway). Luckily there is lots of wonderful scholarship—much of it produced by the truly excellent public lawyers at HKU such as Albert Chen, Cora Chan, Johannes Chan, and Yap Po Jen—to ease the curious into Hong Kong public law. Not only that, but the CCPL is a wonderful place to visit. I hope to return soon, and would highly recommend it to anyone interested in getting more familiar with this fascinating legal and political system.

Furthermore, Hong Kong is a fascinating and beautiful place and a truly fantastic city; well worth a visit even without the intellectual incentive!

[1] Ronald C. Keith, China’s Struggle for the Rule of Law (1994; Palgrave).

[2] Chu Yiu Wai, “Whose Rule of Law? Rethinking Post-Colonial Legal Culture in Hong Kong” (1998) 7(2) Social and Legal Studies 147, 147.

[3] Carol Jones, “Politics Postponed: Law as a substitute for politics in Hong Kong and China” in Kanishka Jayasuriya, Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (2006; Routledge) 38, 39. See also Carol Jones, Lost in China? Law, Culture and Identity in Post-1997 Hong Kong (2015; CUP).

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