• Sat
  • Jul 12, 2014
  • Updated: 11:10am
NewsHong Kong
JUDICIARY

Preserve common law after 2047: top Hong Kong judge

Chief justice says legal system must continue as it is after 2047, and warns against a repeat of 1999 case in which top court was overruled

PUBLISHED : Thursday, 24 January, 2013, 12:00am
UPDATED : Thursday, 24 January, 2013, 8:34am
 

Poll

  • Yes: 96%
  • No: 4%
24 Jan 2013
  • Yes
  • No
Total number of votes recorded: 604

Common law should remain the basis of Hong Kong's legal system beyond 2047, the end of the 50-year guarantee stated in the Basic Law, the city's top judge says.

Chief Justice Geoffrey Ma Tao-li also warned that the judiciary's authority would be undermined if the government again sought a Basic Law interpretation from Beijing in the way it did in the 1999 right of abode case.

"There is nothing in the Basic Law that says, 'by 2047 there must be a convergence of legal systems'. It's difficult to see a convergence. At the moment, the way our law works and the way the law works in the mainland are quite different," Ma told the Hong Kong Student Law Gazette.

"Only by showing that a system works for the community ... and also demonstrating this to the wider world, the central people's government or the [National People's Congress], can we ensure its survival," he said. Ma was speaking in a rare interview in which he also said some lawyers have huge egos and that judges lacked a "human touch".

Hong Kong follows the English common law system where judgments and legislation together form the law. The mainland's civil law relies solely on statute.

"We're moving away now from 1997," Ma said. "People want to be assured that Hong Kong will carry on the way it is."

In the 1999 case, the Court of Final Appeal ruled that the children of parents who have the right of abode in Hong Kong also have the right of abode.

But the government then asked Beijing for an interpretation of the Basic Law that in effect overturned the court's decision.

Ma said: "If you use Article 158 [of the Basic Law] to seek an interpretation every time you don't like a court decision, it undermines the authority of the courts." Ma said it was legitimate for the top court to seek interpretations. "That is perfectly within [judges'] remit," he said. "What is not permissible is to ignore laws."

The interview was conducted about six weeks before Secretary for Justice Rimsky Yuen Kwok-keung announced last month the government had asked the Court of Final Appeal to consider seeking a "clarification" from Beijing over the 1999 interpretation.

The request was made in connection with a residency appeal by foreign domestic helpers due to be heard next month.

Constitutional law professor Michael Davis, of the University of Hong Kong, agreed common law should be preserved after 2047, especially as the mainland had shown "little evidence" of advancing its rule of law.

"It would be almost catastrophic to take that away from Hong Kong," Davis said. "Our economy is built around the common-law legal system."

Share

More on this story

For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive
 
 

 

30

This article is now closed to comments

blue
"bluechinagroup, thanks for confiding your desire for a united front
How could my opinions undermine solidarity,
if they were irrelevant, impractical or inaccurate?"
I think your commentary about the common law system having to whither and die are a tad provocative. Forgive me if I misunderstood you. If you want HK people to love China, taking away HK common law system after 2047 isn't the way to do it.
The most successful way to have harmony and achieve a united front from a diverse group of Hong Kongers would be to be as pragmatic as possible. Any kind of confrontation would be counterproductive and result in a "us vs. them" situation which is most unfortunate.
pslhk
lijiaz, thanks for the discussion
but you seem overloaded with turgid concepts:
rule of law, natural justice, equality before the law, judicial independence
They have different interpretations and are much abused as political slogans
Clearly their desired attributes are not monopolies of common law
-
bluechinagroup, thanks for confiding your desire for a united front
How could my opinions undermine solidarity,
if they were irrelevant, impractical or inaccurate?
All we need is proportionality
Focus on immediate imperatives while not losing sight of long-term necessities.
-
Jokey Septimus, you’d beat me in traveling
only if you’ve been to the “land of no bear”
"Tehran Initiative" and "12th Iman" were the last novels I read; last X’mas
Since then I’ve finished
Prof Lau's book summarising his experience as head of policy,
which you probably don't have the literacy to read;
“How the Economy Works”, which proposes an exit for QE;
JS’ "Price of Civilization" which I'd recommend for every concerned citizen,
a simplified approach to M Sandel’s more cerebral "Democracy’s Discontent";
JS 'd be more convincing if he referred to Menicius' "Middle Way".
HK's malcontents may read the last chapter of "Predator Nations"
to see similarities between HK and US, the two currency-linked polities
and how prejudice has reversed the good and the bad.
-
I’ve thus discharged my share of social service
Please study and think before filing comments.
fearonjones
pslhk, you really appear very misguided and lack clarity in your thinking. Please go away and study law (preferably comparative law) and then your contributions might be worth reading.
johnrai7
My humble Granpa, thanks for update on ure readings. Am impressed your getting the formula right ...for the "Perfect Law Species". I hope 12th Imam will enlighten you further also... Don't forget to read some good collections from our own old fren Mr. Kim . :D (keep in touch)
whymak
I may not agree with what you said or your cantankerous style, but I must grudgingly admit that you have scored some good points against the illogicalities and dogmatic regurgitations of your adversaries in this column, who range from a gullible ingenue to a bunch of zombie like bullies freshly brainwashed in a Western media echo chamber.
Since you mentioned Mencius, I find it hilarious that a self-proclaimed Confucian gentleman 君子, is engaged here in street altercations, 潑婦罵街 and 苦力打架.
Please don't stop on account of this reminder. I am just having a wonderful time.
johnrai7
Hi, whymak we are mostly 100% Asian, eat and s.hit Asian, am just learning English so I can practice my English here, btw across the border we don't have much western media or networks, luckily I can access to scmp online... so don't miss HK much :D
pslhk
whymak, thanks for pouring water and not oil
Sparring the feeble requires little effort
It’s only hard to tune my own psychology;
trying to appear humble,
and treat others as equal
fearonjones
so, pslhk, 'a locally adapted and strong species' must contain the aforementioned characteristics if it is to be justifiably called 'rule of law'...
fearonjones
By the time 2047 arrives my hunch is that the mainland will have caught up with the developed economies in terms of applying the rule of law as opposed to rule by laws - hopefully without the need for internal strife / civil war / revolution. Even then, the Hong Kong (and Macao systems) will still have important differences and individual characteristics. Just as Western countries, in Europe and the US (and indeed within the US itself there are differences between states) have a variety of systems, certain principles are universal within any framework of rule of law. These are concepts such as natural justice, everyone being equal before the law, and also very importantly, the independence of the judiciary. Top government officials have recently also pointed out the importance of developing the independence of the judiciary. Party control of the judiciary is a contradiction in mainland society which requires urgent resolution if social and political unrest is to be avoided.
blue
The only option is to keep the common law system after 2047. I consider myself more pro establishment, but I think changing HK's legal system is insane and hardly a trivial task. Beijing is very pragmatic so I do not think we need to worry about what loud nationalists like pslhk think.
Pslhk your comments, quite frankly, do more damage than good as far as united front work is concerned. Please stop.

Pages

 
 
 
 
 

Login

SCMP.com Account

or