The Basic Law in the Courts: Learning to Live with China and a Changing Hong Kong

Abstract

This article considers the track record of the Hong Kong courts during the first two decades following the territory’s reversion to Chinese sovereignty.

It finds that the judiciary in Hong Kong has been remarkably successful in building up a solid body of jurisprudence that takes a distinctly common-law approach towards interpreting the Hong Kong Basic Law and protecting the wide array of fundamental freedoms guaranteed by this constitutional document. However, after an initial stumble, the courts have been careful to calibrate their judgments in order to avoid any further directly confrontations with the Chinese central authorities, a task which has become increasingly difficult in recent years as Beijing has begun to adopt a more hands-on approach towards Hong Kong.

The judiciary have also had to grapple with the consequences of the more politicized nature of Hong Kong society. This has seen the courts face increasing criticism for judgments on politically related issues, a trend which has gathered pace since the 2014 Umbrella Movement and the subsequent court cases relating to these protests.

Keywords: Judiciary, Judicial Independence, Public Opinion, Judicial Process, Non-Democratic Regimes, Hong Kong, China

JEL Classification: K