It’s time to reconcile one country, two legal systems
Hong Kong and mainland China must find a way to cooperate on matters of justice in an increasingly globalised environment
The relationship between Hong Kong’s legal system and its counterpart on the mainland is usually defined in terms of the differences between the two. This is understandable. The importance of preserving the city’s common law system, with its well-established principles such as judicial independence, right to a fair trial and judicial review, has long been recognised. The rule of law depends on this separate system being maintained.
However, the need for greater cooperation between the two systems and the agencies responsible for operating them is growing. Increasingly, legal disputes on one side of the border have consequences on the other. Initiatives such as the central government’s ambitious belt and road infrastructure project will require the mainland system to interact more and more with courts elsewhere, including those in Hong Kong. Meanwhile, cross-border crime poses new challenges for the city’s law enforcement agencies and those on the mainland, making greater cooperation essential. A recent conference in Xian focused on mutual legal assistance between the mainland and Hong Kong in civil and commercial matters. In his speech at that conference, Secretary for Justice Rimsky Yuen Kwok-keung recognised the need to strengthen such cooperation. Since Hong Kong’s return to Chinese sovereignty in 1997, agreements have been struck on the mutual service of judicial documents, mutual enforcement of arbitral awards and mutual enforcement of judgments. In March, a further arrangement concerning the mutual taking of evidence came into operation.
These are welcome steps towards greater cooperation but they only relate to civil and commercial matters and are relatively limited in nature. Little progress has been made on criminal matters, such as the striking of a much-needed rendition agreement to provide a sound legal basis for the transfer of suspects. Yuen has pointed out that the differences between the two systems create serious challenges for legal cooperation. He is right. The priority must be to maintain Hong Kong’s legal system and rule of law. Caution is needed. But so is cooperation. Efforts to find solutions to these complex problems must continue.