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The Paradox of Hong Kong Colonialism: Inclusion as Exclusion*

Published online by Cambridge University Press:  18 July 2014

Anne S. Y. Cheung
Anne S. Y. Cheung
Affiliation:
Department of Law, University of Hong Kong
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Abstract

This paper examines the British legal policy in Hong Kong which preserved Chinese customary law as a subtle and indirect form of social control. The initial takeover of Hong Kong by the British in 1841 was motivated by economic interest in China. Hong Kong was to be developed into an entrepôt under a laissez-faire government. In order to pacify the local subjects and the Chinese government, English law was applied to British subjects but the local Chinese were governed by Chinese customary law. Gradually, the interpretation of customary law by English judges and common law courts transformed and even created a new understanding of this law. The preservation of customary law had the paradoxical effect of ousting the local narrative. One hundred and fifty-six years have passed; Hong Kong has fulfilled the British dream of being a flamboyant commercial centre. However, in less than 150 days, Hong Kong will be elevated from the status of a British colony to that of “special administrative region” of China. Nonetheless, the rhetoric of laissez-faire government continues to be reflected in the policy of “high degree of autonomy.” The fate of Hong Kong is certainly unknown. Hopefully, the study of its past experience will shed some light on its future.

Résumé

Dans le présent article, l'auleure passe en revue les diverses lois britanniques qui, sous le couvert de maintenir le droit coutumier chinois, visaient à exercer un contrôle social. La prise de Hong Kong par les Britanniques en 1841, motivée par des intérêts économiques, avait pour objectif de faire de l'île un entrepôt et un port franc. Pour pacifier les habitants et le gouvernement chinois, on y instaura un régime juridique en vertu duquel les sujets britanniques étaient régis par le droit anglais et les indigènes par le droit coutumier chinois. Peu à peu, l'interprétation du droit coutumier chinois élaborée par les juges anglais des cours de common law a transformé celui-ci, échafaudant une nouvelle approche du droit coutumier. Paradoxalement, donc, le maintien officiel du droit coutumier a eu pour effet de déposséder les autochtones de leurs coutumes séculaires. Cent cinquante-six ans plus tard, le rêve des Britanniques s'est matérialisé; Hong Kong est aujourd'hui un centre commercial florissant. Mais dans moins de cent cnquante jours, la colonie acquerra le statut de territoire autonome (zone administrative spéciale) qui jouira, selon les termes du gouvernement chinois, d'un large degré d'autonomie, laissant présager le maintien d'un régime de libéralisme économique. Toutefois, le sort de Hong Kong demeure, à ce jour, incertain. Peut-être son passé peut-il nous éclairer sur son avenir?

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 11 , Issue 2 , Fall/automne 1996 , pp. 63 - 85
Copyright
Copyright © Canadian Law and Society Association 1996

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References

1. The claimed “virtues” of the common law system can be defined as the principles of equality before the law, separation of powers, due process of law and respect for human rights. Hong Kong has concentration of power in the executive branch. It has a non-representative government. The Hong Kong Government restricted freedom of the media and did not encourage public criticism. Under section 27 of the Public Order Ordinance (Cap. 245, Laws of Hong Kong, 1987 ed.), anyone who “maliciously publish in any local newspaper false news which is likely to cause alarm to the public or… disturb public order” was punishable by two-year imprisonment. This was repealed after much protest in 1989. The Bill of Rights Ordinance (Cap. 383, Laws of Hong Kong, 1991 ed.) was only introduced in 1991 as an instrument to regain confidence in Hong Kong after the Tiananmen massacre in China.

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