PRC.
Summing up the conference, Justice Kirby listed a
number of points which gave rise for optimism and pessimism
about the future of human rights, the judiciary and the rule
of law in Hong Kong after 1997. Among the points for
optimism were the resilience of the common law system, the
public promises of the PRC recorded in the Basic Law, the
inherent capacity of the common law, even unaided by a Bill
of Rights, to protect fundamental freedoms and the economic
interests of the PRC and Hong Kong
PRC and Hong Kong which favoured a
continuation of the latter's present legal system.
On the other hand, Justice Kirby referred, as reasons
for concern, to the fundamental differences between
traditional Confucian approaches to the law when contrasted
to those of the common law. The former emphasise duties not
rights; community not the individual; and the rule of
virtue dispensed by powerful men, not the rule of law. The
difficulty, belatedly, of building a rights-based society
without the legitimacy of full democracy in its political
arrangements was noted. So was the subordination of the
Basic Law to the Constitution of the PRC and the absence of a
tradition of judicial independence in China. The reported
departure of trained lawyers and judges from Hong Kong before
1997 created a serious erosion of the prospects for a viable
legal system after the transfer of sovereignty.
The failure
to afford the people of Hong Kong an opportunity to exercise
self-determination tended to undermine the legitimacy of the
last minute efforts to provide a paper framework for the
protection of basic rights in the closing days of the
Recent remarks by representatives of the
colonial régime.
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