Hong Kong needs a common law with local characteristics
- Hong Kong has retained the common law system of jurisprudence, wherein all the case law is expressed in English
- A greater effort should be made to ensure that the legal system harmonises with the Basic Law and is compatible with the wider national interest
Against this background, it can be seen that the Basic Law for the Hong Kong Special Administrative Region, promulgated six years later, was a highly liberal and enlightened instrument. It held out the prospect of universal suffrage for the legislature (Article 68) and for the selection of the chief executive for appointment (Article 45).
The Basic Law entrenched the common law as the bedrock of Hong Kong’s capitalist system and lifestyle (Article 8). Common law is a system derived from judgments of English judges of the 19th and 20th centuries, supplemented later by judgments of superior courts in other common law jurisdictions.
All this case law is expressed in English. Article 9 of the Basic Law made English an official language besides Chinese.
But there is one problem: there is no conceivable way that the vast bulk of cases constituting the common law could be translated into Chinese.
What does this mean for Hong Kong as the 25th anniversary of reunification approaches? I suggest enhanced sensitivity on the part of the judiciary and lawyers on this issue, and a greater effort to ensure that the legal system harmonises with the Basic Law and is compatible with the wider national interest.
This means, above all, that the legal process should be robust and straightforward, purged of obscure technicalities; that judgments be focused on real issues and not arcane theories; that such judgments be brief and centred on remedies; and above all that they be easily translated into Chinese.
Language can arouse strong emotions, on the part of those who feel handicapped and excluded by lack of familiarity with the language. The judiciary should not feel complacent in this regard.
Hong Kong’s independent judicial power is derived from the National Peoples’ Congress where the only language used is Chinese. It follows that, in the exercise of judicial power, transparency is crucial: transparency as viewed from Beijing.
Judgments of the Court of Final Appeal have received plaudits from legal scholars overseas. This should not blind the legal community to the overarching requirement for transparency and the need to develop a common law with Hong Kong characteristics, one that works effectively to advance Hong Kong’s unique position as a special administrative region of China.
The practice of common law puts Hong Kong in a position which no other city in China can match. But such practice requires discipline, both on the part of lawyers and of the courts. The basic tenets of the common law transcend ethnicity and race.
In far too many instances, courts have followed counsel’s lead and, interpreting provisions in the Basic Law, have done so through the lens of European human rights jurisprudence.
This is fundamentally wrong. In setting up the Hong Kong Special Administrative Region, the National People’s Congress conferred power on the Hong Kong courts; it never authorised the Hong Kong courts to delegate power to the European Court of Human Rights.
As the community progresses towards 2047, the Hong Kong courts should stand tall, confident in the wisdom of the common law, rejecting all distractions. Only in this way might Hong Kong fulfil its true destiny.
Henry Litton is a former judge of the Hong Kong Court of Final Appeal