Legal education, which is at the heart of the rejuvenating mechanisms that keep Hong Kong’s legal profession functioning, should be reformed to keep pace with the changing needs of Hong Kong as a special administrative region of China.
With the benefit of hindsight, our failure to have a thorough understanding of the Constitution of the People’s Republic of China in the past two decades is one of the factors that has prevented Hong Kong from accurately implementing the principle of “one country, two systems” in general and provided fertile sources of confusion in courts’ rulings in particular. Besides incorporating the Chinese Constitution into the curriculum of local law schools, we should also train more cross-jurisdiction law students who are familiar with the mainland’s laws and common law to serve the needs of the emerging Guangdong-Hong Kong-Macao Greater Bay Area. Other reforms will also be discussed below.
First of all, in Ng Ka Ling v Director of Immigration (No. 1)(1999) 2 HKCFAR 4, the Court of Final Appeal stated explicitly that it has the jurisdiction to declare any legislative acts of the National People’s Congress or its Standing Committee to be invalid if the court found the acts to be inconsistent with the Basic Law of the Hong Kong Special Administrative Region. It caused great confusion in the legal world. The CFA later on rectified its mistake by stating that the CFA’s judicial power is derived from the NPCSC: Ng Ka Ling v Director of Immigration (No. 2)(1999) 2 HKCFAR 141. Since then, Hong Kong courts have accepted that they have no jurisdiction to inquire into the legality and validity of the NPCSC’s interpretation of the Basic Law.
The above lesson clearly demonstrates that the study of the Chinese Constitution can equip our law students with vital cognitive tools to precisely understand the constitutional order of the Hong Kong Special Administrative Region, clearly defined in the Basic Law according to the Constitution, and know how to correctly implement the principle of “one country, two systems” in Hong Kong. It is, thus, suggested that the country’s Constitution should be made a compulsory subject for Postgraduate of Laws (PCLL) students. To familiarize Hong Kong students with the legal system in the mainland of China, we should also introduce curriculum reforms to help them better understand national laws.
It is the constitutional authority of the NPCSC to promulgate national laws for enforcement in the HKSAR at its own discretion, which brooks no challenge by anyone or party in a court of law in Hong Kong. The promulgation of the National Security Law for implementation in the HKSAR should be an opportunity for HKSAR’s three law schools to strengthen their curricula on mainland law. As Edward Epstein has correctly pointed out, experience from “mixed jurisdictions” shows that mainland legal languages, legal personnel, and the strengths of its public policies and governance are potential, indirect influences that can imperceptibly but inexorably change Hong Kong law.
A better understanding of the mainland’s law and its constitutional order may help those “pioneers” from Hong Kong adapt to life in the GBA. For example, a basic knowledge of mainland commercial law can help Hong Kong entrepreneurs navigate the legal complexities of doing business in mainland cities in the GBA. Such knowledge may also nurture a sense of national identity among the younger generation of Hong Kong society.
Another proposed reform is the development of consistent admission criteria for PCLL providers. For the sake of fairness, the Standing Committee on Legal Education and Training (SCLET) made it abundantly clear, in its 2018 Review, that PCLL providers should work together to increase the transparency of the admission process and to develop consistent admission criteria across all three institutions.
Though all PCLL providers state in no uncertain terms that there is no deliberate policy of favoring one’s own LLB/JD students, tales of favoritism should be investigated and subject to tight scrutiny by the SCLET nevertheless. Besides, there should be a joint assessment board to assess the standards of all overseas graduates’ degrees.
My third proposal is to train more cross-jurisdiction law students in Hong Kong to meet the needs of the changing times. There are strong grounds for establishing a fourth law school. The grounds are as follows:
(a) The market opportunities brought by the GBA truly cater to legal professionals of various levels and sectors.
(b) The Legal Qualifying Examinations for Hong Kong lawyers to obtain GBA practicing status provide a pathway to practice law in the mainland cities of the GBA. These lawyers can advise on mainland law and common law matters in business transactions in the GBA.
(c) The Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone can now choose Hong Kong law as the applicable law for their contracts.
(d) It is expected that the Belt and Road Initiative will generate further work for Hong Kong’s legal sector.
At a glance, Shue Yan University, with its core competitive advantages in mainland law and invaluable experience in organizing joint programs with mainland universities, is an ideal candidate to be the fourth law school specializing in cross-jurisdiction legal service training. Nonetheless, while Shue Yan may enjoy unrivaled flexibility in providing privately funded cross-jurisdiction law courses, it might lack the financial resources and competent teaching staff to guarantee the quality of these courses. Most importantly, the law graduates of Shue Yan may not be able to compete with UGC-funded universities in PCLL admissions. This competitive disadvantage may adversely affect the perceived credibility of Shue Yan as a new law school.
Finally, we turn to the Common Entrance Examination (CEE) proposed by the Law Society. The SCLET 2018 Review questioned the efficacy of an assessment-only pathway open to all graduates who do not get a PCLL place. How the students would actually be assessed also merits careful consideration. Besides, the failure rate of the CEE is expected to be high.
In spite of the above reservations, the CEE proposal has awakened us to the need to ensure that all intending trainee solicitors achieve a unified standard. Maintaining the quality of the profession serves the public interest. The Law Society argues convincingly that the entry into the legal profession should not be determined artificially by PCLL admissions. The demand for solicitors in Hong Kong is a matter for the market to determine. The Law Society can invoke its power under Rule 7 of the Trainee Solicitors Rules to implement the CEE.
It is hoped that the above proposals will draw the public eye closer to the need to develop a legal system appropriate for the “one country, two systems” context. Curriculum reformers should break the fetters of old common-law-oriented syllabuses and incorporate the Chinese Constitution and cross-jurisdictional courses into the new syllabuses. Caring first and foremost about fairness, I urge all PCLL providers to develop consistent admission criteria, and I support the Law Society’s proposal to implement the CCE.
The author is a barrister and a member of Chinese Academic Networks and co-founder of Together We Can.
The views do not necessarily reflect those of China Daily.