TNAG-2225-FCO40-3196-Political-relations-between-Hong-Kong-and-Australia-1991 — Page 40

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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