The Rule of Law Under 'One Country, Two Systems': The Case of Hong Kong 1997-2009

Abstract

The transplant of English common law to, and the development of a set of legal institutions that supported the Rule of Law in, Hong Kong is one of the major legacies of British colonial rule in Hong Kong. When the Sino-British Joint Declaration was signed in 1984 and Hong Kong began to prepare herself for reunification with the motherland in 1997, there were concerns about the possible deterioration of standards of the Rule of Law and of civil liberties in Hong Kong after the handover. It was generally recognized that one of the crucial tests for whether the “One Country, Two Systems” model works would be whether the Rule of Law can be maintained in Hong Kong after 1997. The practice of “One Country, Two Systems” (OCTS) is itself dependent on a particular kind of Rule of Law – that practiced with regard to the Basic Law of the Hong Kong Special Administrative Region (HKSAR) – the “mini-constitution” enacted by the National People’s Congress (NPC) of the People’s Republic of China (PRC) in 1990 that came into effect in 1997 as the constitutional instrument of the HKSAR of the PRC. Would the Basic Law, which embodies the grand promises made by the PRC government in the text of the Joint Declaration regarding how the HKSAR would be administered, be faithfully implemented by the Chinese authorities? Would Hong Kong be able to practice autonomy, with “Hong Kong people ruling Hong Kong”, evolve a higher degree of democracy than ever before, and ensure the protection of human rights and property rights under the Rule of Law? Would the Rule of Law continue to contribute to Hong Kong’s economic prosperity and continue to safeguard it as a free, pluralistic and open society and an international city? At this point in time, more than twelve years after the handover, we should be in a good position to answer these questions. This paper seeks to provide a basis for answering these questions by reviewing the legal and constitutional history of the HKSAR since its establishment in 1997. It will focus on what the author considers to be the most important events, cases or developments. It divides the legal history of the HKSAR so far into four periods. The four sections of the paper will deal these periods respectively, followed by a concluding section.