New | Hong Kong’s Basic Law according to the Theory of Legal Origins
For common law to operate within a civil law system, there must be deep tolerance and mutual sensitivity, and respect for each other’s prerogatives
On November 7, the Chinese government’s National People’s Congress Standing Committee interpreted the provisions under Article 104 of Hong Kong’s Basic Law to resolve the oath-taking row that has befallen the city’s Legislative Council.
Since the case was already before Hong Kong’s courts, it was felt that an NPC Standing Committee interpretation would undermine the city’s autonomy and confidence in separate legal system.
The political reason for Beijing’s contentious interpretation is straightforward. Beijing is prepared to set down a “bright line” rule against advocating independence by public officials during solemn oath taking and to treat such offences as blatant contraventions of the “One Country, Two Systems” principle.
In so doing, Beijing has tilted the delicate balance between “One Country” and “Two Systems” towards the former.
From a legal perspective, there is an inherent tension in anchoring Hong Kong’s common law system within China’s civil law system.
These two legal systems have different approaches to the resolution of disputes that can be traced back to the different political circumstances that prevailed in England and France over 800 years ago.