Hong Kong's new Chinese dawn is seen as a wake-up call to do business rather than a signal to panic, says Mark Selway. Mark Selway is a freelance journalist.
For many among Hong Kong's legal community, the handover to China presents little excitement. They are simply waiting for the dust to settle so that they can begin capitalising on the extra business that many lawyers are predicting will be generated by being hooked up directly to one of the world's fastest growing economies.
Far from being concerned about their new governors, lawyers are bullish about the future, because while the handover brings many uncertainties, there are also certainties. It is in China's interests to keep the promises it made in the Joint Declaration, which include an adherence to the Basic Law – China's written constitution for Hong Kong.
Passed in 1990, it provides a guideline for how the Special Administrative Region (SAR) – Hong Kong's status within the Chinese economy – will operate. It pledges no major changes to the constitution for at least 50 years and clarifies how Beijing will take responsibility for Hong Kong from a running start.
Another reason for the lack of panic is that new legislation has been passed to prevent discrimination against non-Chinese speakers, and to protect the pay rates of those who seek to gain or retain positions in public office in order to protect the population and maintain the morale of the expatriates.
One of the main challenges facing the profession will be accommodating bilingual practise, as the profession swings towards the Chinese system of law. The Basic Law provides that, in addition to the Chinese language, English will also be used as an official language by the legislature and judiciary.
Although, most of the legal textbooks, and all the common law cases are currently reported in English, it is now seen by many as an endangered language. And if the standard of English is to fall, it will be harder to retain common law, which is a part of the Hong Kong legal system.
“Most of the legal profession in Hong Kong speak and work in English and a significant proportion of practising lawyers are non-Chinese-speaking,” says Vincent Liang, vice-president of the Hong Kong Law Society. “If lawyers are forced to use only Chinese in their day-to-day practice, their quality of work will fall.
“If we are going to use only Chinese or mainly Chinese, they and the non-Chinese-speaking judges will not be able to practise here. As these expatriate lawyers have contributed greatly to our profession, we will do whatever is necessary within our power to ensure that this possible exodus does not happen.”
As a Chinese flavour dilutes the system, there will probably be a move towards professional fusion between barristers and solicitors, and a gradual increase in cross-practising.
Over the long term, China's codified system will start to be implemented, and common law will gradually be replaced as new laws are passed by the administration. This will increase the need for Chinese-speaking lawyers and could also create excessive administration for law firms if Hong Kong starts to imitate China's system.
An interesting factor affecting the move over to a Chinese system of law, however, is the need for China to assimilate its legal system with the rest of the world. According to one partner at Clifford Chance, China is more likely to “steer its own legal system towards the international model than to drag Hong Kong's system towards its own”.
If this happens, the changes to Hong Kong's current legal system will be decidedly less marked and the views of much of the legal community – “crisis, what crisis?” – will certainly be borne out.
Ken Lim, member of Johnson Stokes & Masters executive committee and member of the governing council of the Hong Kong Law Society, is typical when he says he is “looking forward to the fuss dying down and a return to business”. Which, after all, is what Hong Kong will continue to do best.