As Hong Kong prepared to mark the 20th anniversary of its handover to Chinese sovereignty, the pro-independence Hong Kong National Party sent instructions to supporters planning to attend a rally: bring masks both for anonymity and as protection against tear gas, encrypt your electronic devices, and carry a telephone number for legal assistance in case of arrest. The spur for this was the Hong Kong authorities’ prohibition of the rally on the grounds that it violated the territory’s mini-constitution, the Basic Law, which has been in effect since 1997 when Hong Kong returned to Chinese sovereignty. The group had issued this precautionary list with the intention of defying the ban, but it backed down after police threatened the organizer with detention for illegal assembly, despite the fact that he was the sole attendee.
Prominent lawyers are fearful that such actions are eroding Hong Kong’s common law system — a British legacy, along with its black-robed and bewigged judges — upon which the territory’s reputation as an international financial center has long rested, especially in contrast with the murky and politically dominated legal system of the Chinese mainland. “It’s not clear what the legal grounds are for barring this kind of thing,” said Wilson Leung, a barrister and the international liaison officer for the Progressive Lawyers Group. “The Basic Law starts off by saying Hong Kong is part of China, but that’s different from saying anyone who advocates independence is doing something illegal. At the moment, there is no such law.”
Hong Kong’s common law system — which derives from precedent rather than statutes, as in the civil law system that operates in China — is the single most important difference between political and economic life in Hong Kong and the mainland. This British legacy is key to Hong Kong’s attractiveness for foreign institutions and investors, who value the secure legal environment and level playing field ensured by an independent judiciary designed to protect civil liberties. In other former British colonies, like Singapore, courts have increasingly made departures from common law in statute-based areas like company and criminal law, so the fate of Hong Kong’s common law is closely watched as a bellwether of the territory’s future.
That’s why the latest prohibitions have Hong Kong’s democrats worried. This episode is just the most recent dubious use of the law to target local leaders…