There are merely four famous and prosperous bay areas in the world; namely New York Bay, San Francisco Bay, Tokyo Bay and the Guangdong-Hong Kong-Macao Greater Bay Area, despite numerous geographical bay areas around. It is noted, however, that the first three bay areas have been more or less developed by invisible hands for many decades, whereas the last one has been formed by visible government policies as a great economic experiment in South China in the middle of the second decade of the 21st century.
Mankind lives for a better life. As GDP per capita in bay areas is higher than in both coastal hubs and inland metropolitan areas statistically speaking, it is not unreasonable for the central government to pursue better and further, inter alia, economic enhancement, by a new way of development, for its people, no matter whether it is capitalist or socialist (or Deng Xiaoping’s cat, white or black), so long as it can get it done (catch a mouse).
The Greater Bay Area comprises Hong Kong, Macao, Shenzhen, Guangzhou, and another seven cities around the Pearl River in Guangdong province with the following characteristics. “One” means one-China sovereignty; “two” means two social systems: Hong Kong and Macao being under a capitalist system and the other nine cities of Guangdong province under a socialist system; “three” means three separate customs territories with different legal systems: Hong Kong, Macao and the other nine cities of the Guangdong province; “four” means Hong Kong, Macao, Shenzhen and Guangzhou being the core cities within the 11-city cluster.
In contrast to the former three bay areas where their laws are in conformity within each jurisdiction, the Greater Bay Area may suffer a serious disadvantage in conflict of laws among their three separate customs territories. A conflict of laws is bound to exist in different legal systems, not only in public law, but also in private law and proceeding laws in general, and in particular, in jurisdiction, in the laws of torts, contracts, properties, agency, partnership and corporation, marriage and wills, in municipal administration and management, and so on.
In European practice, conflict of laws is called private international law, and developed from its own rules vis-a-vis other common law countries. Experiencing a long tradition of rational codes, civil law countries sought to reduce conflict rules to statutory form. The European Union has adopted regulations to govern most contract, tort and properties cases, and pursued common choice of rule to govern other areas like marriages and wills.
By Article 95 of the Basic Law, the Hong Kong Special Administrative Region is required through consultation and in accordance with law, to maintain judicial relations with the judicial organs of other parts of the country, and they may render assistance in both criminal and noncriminal cases. I believe the European experience does not contravene that article in various noncriminal cases, and may provide suitable reference for the Greater Bay Area to consider. Article 95 does not necessarily impose constitutional limits on legislative jurisdiction for which “2+9” governments may through consultations agree whether European practice ought to be followed.
While European practice may be used for reviewing noncriminal cases in the bay areas, American stipulations may be adopted for reference in criminal cases in the bay area.
Section 2, Clause 2, of Article IV of the United States Constitution mentions that, “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” By operation of this provision, no American state will become a haven for any fugitive from other states, and nor will Hong Kong by the same analogy.
One may recall the street riots in 2019, a violent mass movement that erupted in response to the extradition bill introduced by the HKSAR government after a Hong Kong resident allegedly committed a homicide in Taiwan before fleeing to Hong Kong. Since Section 2(1)(a)(ii) of the Fugitive Offenders Ordinance prohibits any arrangement for fugitive offenders to be surrendered to any other part of the People’s Republic of China, the fugitive concerned cannot be returned to Taiwan. No matter whether such part may be interpreted as the Chinese mainland or Taiwan, amendment of the existing ordinance is required. The American government has no reason to disagree, for what would have been amended was similar to that which has been provided in its Constitution. Unfortunately, the amendment failed because of domestic objections coupled with foreign interference. Without proper legal cooperation of Article 95, economic cooperation in the bay area would be jeopardized.
To a certain extent, the success of the Greater Bay Area not only depends on proper implementation of Article 95 of the Basic Law, but also whether disadvantages of the conflict of laws can become advantageous like an old Chinese saying, “Bad things turn into good things.” When the customs of certain products of separate customs territories have become so wide because of political or other strategic reasons between two trade members, any clever entrepreneur may utilize the World Trade Organization’s “Agreement on Rules of Origin” for changing the origin of those products, because Article 9 of the rules stipulates that “when more than one country is concerned in the production of the good, the country where the last substantial transformation has been carried out” will determine the origin. Then the choice of place of the last substantial transformation may work. For example, the last substantial transformation could be done in Hong Kong for export to those trade partners friendly to Hong Kong, or in Macao for the market in Portuguese-speaking countries, or on the mainland for more widespread areas.
The author is a former professor at the Research Center for Hong Kong and Macao Basic Law, Shenzhen University.
The views do not necessarily reflect those of China Daily.