Accommodating two systems

Much of the Basic Law of the new Hong Kong was written on the hoof. Edward Hardcastle says a lot remains to be done. Edward Hardcastle is an executive at intellectual property specialists Rouse & Co International.

From 1 July 1997, the main constitutional document in Hong Kong became the Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the Peoples Republic of China (PRC). The Basic Law was adopted by the National Peoples Congress on 4 April 1990. The HKSAR is not governed by the laws applicable in the rest of the PRC.

While the laws in the PRC are, in some cases of acceptable modern standards, there are many areas both in the laws themselves and in the application of those laws where there is considerable work yet to be done.

The Basic Law provides that the HKSAR will have a high degree of autonomy and executive, legislative and independent judicial power. It provides that the capitalist system and way of life shall remain unchanged for 50 years and that the laws previously in force (common law, rules of equity, ordinances) shall be maintained, subject to amendment by the legislature of the HKSAR.

English is also provided for as one of the official languages. These key assurances are seen by many as being essential if Hong Kong is to continue to be a centre for business in Asia.

Many of the laws had been written so as to rely on legislation enacted in the UK – they were not independent standalone laws. This meant that prior to the handover, new standalone laws had to be enacted. In intellectual property this meant that laws covering patents, copyright and design rights all had to be enacted. This resulted in a huge workload for the Legislative Council. Many of the laws had to be passed with very little time for proper consultation and some were passed only days before the handover.

The provision in the Basic Law, which states that the offices in the HKSAR of the PRC government and the governments of provinces, municipalities and autonomous regions and their personnel shall abide by the laws of the HKSAR, has recently caused controversy. This was due to the need to amend the relevant ordinances in Hong Kong which contain reference to the Crown and must be replaced with more appropriate wording.

The proposal was that the word State simply replaces the word Crown. The supporters argued that this was a simple technical amendment. The opposers argued that it might allow those organisations related to the State to operate outside the law.

English may still be used in the courts. Silks are renamed senior counsel, judicial review is still available and a number of cases have been heard and appealed.

A Bill of Rights enacted before the handover was overturned after the handover, and immigration policy is still often an issue in the press – in particular when families divided by the border between the HKSAR and the rest of China seek to be re-united in Hong Kong.

There are many other issues. The reality is that much of what is written at the moment is trying to answer questions that cannot be properly answered for some time. Hong Kong remains a centre for business in Asia and this should continue if the business community feels there is some certainty. It would seem unlikely that China would seek to impose changes which would affect that certainty.

In a recent issue of the South China Morning Post, an article was published titled “Top-flight lawyers soar above slump”. The article went on to quote the secretary-general of the Law Society saying: “If you want a particular counsel then you are going to have to pay for it. The trouble is they know that and take advantage of it.”

Lord Hoffman – a non-permanent judge of the Court of Final Appeal – was quoted as saying that he is in favour of introducing more fixed costs in order to prevent lawyers bumping up bills by doing unnecessary work.

Some issues, it would seem, apply wherever you are in the world.