McGill Law Journal ~ Revue de droit de McGill
LEGAL HYBRIDITY IN HONG KONG AND MACAU
Ignazio Castellucci*
The article aims to compare the case of the
two Chinese Special Administrative Regions
(SARs) of Hong Kong and Macau against the
theoretical grid developed by Vernon V. Palmer
to describe the classical civil law-common law
mixed jurisdictions. The results of the research
include an acknowledgement of the progressive
hybridization of the legal systems of Hong Kong
and Macau, hailing from the English common
law and the Portuguese civil law tradition, re-
spectively, by infiltration of legal models and
ideologies from Mainland China.
The research also leads to a critical revi-
sion and refinement of the methodology and
tools developed by Palmer in order to make
them applicable to a wider range of processes of
legal hybridization beyond classical mixes,
and to a better appreciation of how transitional
political and institutional phases play a critical
role in legal mixity or hybridity.
Cet article a pour but de comparer les cas
des deux rgions administratives spciales
(RAS) de Hong Kong et de Macao avec la grille
thorique dveloppe par Vernon V. Palmer afin
de dcrire les juridictions mixtes classiques
droit civil-common law. Les rsultats incluent
une reconnaissance de lhybridation progressive
des systmes juridiques de Hong Kong et de
Macao, originaires de la common law anglaise
et de la tradition civiliste portugaise respecti-
vement, par linfiltration des modles juridiques
et des idologies de la Chine continentale.
La recherche amne galement une rvi-
sion critique et un affinement de la mthodolo-
gie et des outils dvelopps par Palmer afin de
les rendre applicable un plus large ventail
dhybridation allant au-del des mlanges
classiques et une meilleure apprciation de
comment les phases de transition politiques et
institutionnelles jouent un rle critique dans la
mixit ou lhybridit.
* PhD; Invited Professor of Asian legal Traditions and Chinese Law, University of Tren-
to, Italy; Invited Professor of Comparative Legal Systems, University of Macau; Senior
Lawyer admitted to the Bar of Italy; Fellow, the Chartered Institute of Arbitrators,
London. Drafts of this paper have been reviewed by Mauro Bussani, Sen P Donlan and
Salvatore Mancuso, whom I publicly want to thank for their patience, acute observa-
tions, and helpful comments and suggestions.
Citation: (2012) 57:4 McGill LJ 665 ~ Rfrence : (2012) 57 : 4 RD McGill 665
Ignazio Castellucci 2012
666 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
Theoretical Frame and Methodology
A. Vernon Palmers Theoretical Findings
B. Application of Palmers Grid to the Case of the
Chinese SARs
II. China and Its Two SARs: Institutional Superimposition
III. Legal Infiltrations: Interpreting the Basic Laws
A. The Interpretive Mechanism
B. Ng Ka Ling
C. Subsequent Interpretation of the Basic Law by
the NPCSC
D. The Congo Case
E. Identifying Principles and Rules Being Infiltrated
F. The Unequal Duality of Vision
IV. Delegalization: The Closer Economic Partnership
Arrangement
V. Hybridization: The Soft Way
A. Macau and Its Lower Resistance to Legal Infiltrations
from Mainland China
B. General Differences Between the Two SARs
C. Article 23 of the Basic Laws
D. Legal Education in Macau
E. Cultural Changes
F. The Administrative Formant
VI. Testing the Chinese SARs Case against Palmers
Analytical Grid on Legal Mixity and Refining
the Grid
A. The Test for Obvious Amount
B. The Test of Critical Features
C. The Test of Subjective Perception of Mixity
D. Refinement of Palmers Grid
668
670
670
671
672
676
676
678
683
686
689
693
695
697
697
698
700
702
703
704
706
707
708
712
714
LEGAL HYBRIDITY IN HONG KONG AND MACAU 667
VII. Testing the Tools for Research on Mixity
Against China: More Lessons to be Drawn
A. Modern Mixed Jurisdictions
B. Importing Foreign Legal Models
C. Subjective Perception
D. New Categories
715
715
717
718
720
668 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I do not think we fully understand them.
– Vernon V. Palmer
Introduction
A serious collective effort has been produced in recent years by the
comparative legal scholars community to produce advances in our under-
standing of mixed jurisdictions. Despite the candid admission of one of the
champions of the field (quoted in the epigraph to this article),1 our
knowledge in this subject has certainly improved in the last decade or so.
The geographic area of research on mixity has been enlarged far beyond
the relatively small number of classical mixed legal systems, to involve
other jurisdictions featuring obvious interactions and/or contaminations of
different legal cultures.2
It has been recognised that mixedbeyond the classic use to des-
ignate jurisdictions featuring both civil law and common law elements3
can fruitfully be associated with another term featuring a similar but
wider scientific meaning, that of hybrid:4 [t]he work of mixed jurists, of
legal historians, and of some comparativists has led us to the recognition
of the universal fact of legal hybridity.5 Focus has now shifted from clas-
sifications and nomenclature to methodological issues, in order to better
1 Vernon Valentine Palmer, Quebec and Her Sisters in the Third Legal Family (2009)
54:2 McGill LJ 321 at 339 [Palmer, Third Legal Family].
2 Taxonomic issues represented one of the main themes of the Second World Conference
of the World Society of Mixed Jurisdiction Jurists held in Edinburgh in 2007. Papers
presented at the conference are available online: (2008) 12:1 EJCL
Vernon Valentine Palmer, Two Rival Theories of Mixed Legal Systems, online: (2008)
12:1 EJCL 16
rc, What is a Mixed Legal System: Exclusion or Expansion?, online: (2008) 12:1
EJCL 15
lect number of those conference papers have also been published in volume 3 of the
Journal of Comparative Law, and in Esin rc, ed, Mixed Legal Systems at New Fron-
tiers (London: Wildy, Simmonds & Hill, 2010). See also Ignazio Castellucci, How Mixed
Must a Mixed System Be?, online: (2008) 12:1 EJCL 4
[Castellucci, How Mixed].
3 Vernon V Palmer, ed, Mixed Jurisdictions Worldwide: The Third Family (Cambridge,
UK: Cambridge University Press, 2001) [Palmer, The Third Family].
4 rc, Exclusion or Expansion?, supra note 2. The term hybrid, besides, had al-
ready been used by Konrad Zweigert & Hein Ktz, Introduction to Comparative Law, 3d
ed, translated by Tony Weir (Oxford, UK: Clarendon Press, 1998) to indicate mixes in-
cluding the classic mixed jurisdictions of Palmers third family.
5 Sen Patrick Donlan, Comparative Law and Hybrid Legal TraditionsAn Introduc-
tion in Eleanor Cashin Ritaine, Sen Patrick Donlan & Martin Sychold, eds, Compara-
tive Law and Hybrid Legal Traditions (Zurich: Schulthess, 2010) 9 at 16 [Donlan, An
Introduction].
LEGAL HYBRIDITY IN HONG KONG AND MACAU 669
understand not only the features of this or that jurisdiction, but also, or
especially, hybridity in general. Mixing forces at work are being scruti-
nised in a growing number of jurisdictions, as well as patterns and/or
strategies of mingling amongst the different components of a given hy-
brid product.6
One of the fields arousing comparative scholars curiosity in recent
years is certainly Chinese lawits legal tradition, legislation, legal ideol-
ogy, and developments. Chinese law has become the subject of substantial
legal research under innumerable points of view; an enormous mass of
scholarship has been produced. We certainly know a lot more about China
and its legal environment than we used to know, say, twenty years ago.7
However, the legal mixing or hybridisation process taking place in Chi-
namentioned by comparative and Chinese law scholars almost matter-
of-factly but in very general terms onlyhas not yet been analysed by
many, with respect to the actual hybridisation strategies and ways.
This paper has, thus, a dual purpose. The first one: combining the two
mentioned discourses, I will consider the case of China and its two Special
Administrative Regions (SARs), Hong Kong and Macau. Of course it
would be very interesting to analyze extensively the many legal and con-
stitutional implications of the institutional setting of the two Chinese
SARs. It would, however, be far beyond the reach of this essay which is fo-
cused on the hybridization dynamics there, while also expanding and in-
novating our knowledge about Chinese law and its satellites. The second
purpose consists of an attempt to identify, in more general terms, ele-
ments of relevance for the research on legal hybridity and the process
generating it, and to expand and refine the methodological toolbox for the
purpose.8
6 The title and main themes of the Third International Congress of the WSMJJ, held at
the Hebrew University of Jerusalem in June 2011, have been Methodology and Inno-
vation in Mixed Legal Systems.
7 See e.g. Wang Chenguang & Zhang Xianchu, eds, Introduction to Chinese Law (Hong
Kong: Sweet & Maxwell Asia, 1997); Albert Hung-yee Chen, An Introduction to the Le-
gal System of the Peoples Republic of China, 4th ed (Hong Kong: LexisNexis, 2011)
[Chen, Introduction]. Specifically on the issue of the rule of law in China, a very thor-
ough and accurate analysis can be found in Randall Peerenboom, Chinas Long March
Toward Rule of Law (Cambridge, UK: Cambridge University Press, 2002); Ignazio Cas-
tellucci, Rule of Law with Chinese Characteristics (2007) 13 Ann Surv Intl & Comp L
35 [Castellucci, Rule of Law]. See also Jianfu Chen, Yuwen Li & Jan Michiel Otto,
eds, Implementation of Law in the Peoples Republic of China (The Hague: Kluwer Law
International, 2002).
8 In this paper, I will update and take further some earlier reflections made in Ignazio
Castellucci, Chinese Law: a new Hybrid in Ritaine, Donlan & Sychold, supra note 5,
75.
670 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
These introductory notes are aimed at identifying the main objectives
of the research. In the next section the theoretical frame and the method-
ology followed will be stated. The subsequent analysis will develop start-
ing with the change in the institutional setting of the two regions of Hong
Kong and Macau. This change produced an enormous amount of debate
and research in the legal, constitutional, economic, political, and social
fields: the profile of institutional change highlighted in this essay is relat-
ed to how institutional changes of that level are, almost by definition, in-
troducing some degree of superimposition of values and legal hybridisa-
tion.
Phenomena of legal infiltration from Mainland China through legal
and institutional mechanisms will then be described with relation to Hong
Kong. A short mention, but still important in the view of this author, of
the mechanism for dispute resolution in economic cooperation between
the Mainland and each SAR, within the frame of the CEPA agreements,
will permit an appreciation of how an important economic territory has
been de-legalised as a consequence of the new political setting. Finally,
other softer ways of legal hybridisation will be identified, mostly in rela-
tion to Macau.
The data exposed will then be assessed according to the chosen meth-
odological gauge. The tool itself will be discussed, eventually, against the
data collected here and previous consolidated mixity knowledgein a
circular process, to some extent, of adaptation between tool features and
matter description, as is often the case in applied sciences and technolo-
gyleading to some final and more general submissions on legal mixity,
hybridity, and on the methodology to research them.
I. Theoretical Frame and Methodology
A. Vernon Palmers Theoretical Findings
Having to start from some firm methodological ground, the classical
theory of mixed legal systems elaborated by Vernon Palmer probably
representsif originally related to the more limited environment of clas-
sical mixed jurisdictionsthe only effort so far to provide a concrete clas-
sificatory grid to identify the common features typical of mixed common
law-civil law legal systems around the world.9
These common elements include, in short: (a) The coexistence of both
civil law and common law traditions, each with their typical features,
9 Vernon Valentine Palmer, Introduction and Comparative Overview in Palmer, The
Third Family, supra note 3, 1 [Palmer, Introduction].
LEGAL HYBRIDITY IN HONG KONG AND MACAU 671
identifiable in the system in an obviously relevant amount. (b) The histor-
ic superimposition of a common law framework to a pre-existing civil law
environment in critical areas, especially in relation to the role, structure
and functioning of the judiciary and to the value of case law, but also
more generally in relation with the areas of public law, criminal law, eco-
nomic law, and institutional architecture. The older civil law rules stand,
more or less, for the regulation of private matters. (c) An element of a sub-
jective nature,10 described as the perception and/or feeling of lawyers and
scholars of the relevant jurisdiction of their belonging to a mixed sys-
tem. This subjective test partially overlaps with what Patrick Glenn calls
a legal tradition:11 a combination of historical facts and subjective read-
ings, feelings and visions of the relevant people, transforming brute his-
torical events into a cultural heritage and a factor of identity,12 which in
turn contributes, objectively, to form13 a legal system and shape its
character and style.14
B. Application of Palmers Grid to the Case of the Chinese SARs
Palmers theory (and/or its application to a wider, different environ-
ment from its original one) may satisfy some and, perhaps, dissatisfy oth-
ers. Palmer himself seems very active in testing and expanding the
boundaries of his device.15 Still, it is probably the only firmly established
analytical instrument so farusable until proven wrong or superseded by
a better tool. In analyzing and describing the Chinese SARs hybridization
process, I will not refer to the most detailed elements in Palmers grid;
they would probably be too tradition-specific and related to classic
mixes only. I will only use a generalized version of its three basic tests,
which a priori seem reasonably applicable to mixes different from the
classic ones, too: (a) an obvious amount test; (b) a critical features
test; and, (c) a subjective element one. Validation and acceptance of the
resulting refined tool will imply that there is a degree of comparability be-
10 Ibid at 7-11.
11 H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 4th ed
(Oxford, UK: Oxford University Press, 2010) ch 1, 2.
12 Ibid at 34-35.
13 See Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (In-
stallment I of II) (1991) 39:1 Am J Comp L 1 [Sacco, Legal Formants I]; Rodolfo Sac-
co, Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)
(1991) 39:2 Am J Comp L 343 [Sacco, Legal Formants II].
14 In the sense which is central to the classification of legal systems in Zweigert & Ktz,
supra note 4.
15 See e.g. Palmer, Third Legal Family supra note 1; Palmer, Two Theories supra note
2.
672 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tween classic mixes and these new hybrids, and at the same time, that a
larger number of objects could be analyzed against the more general grid
produced here.
The patterns of superimposition leading to the mixtures Palmer de-
scribed are, in fact, visible in Hong Kong and Macau: some aspects of
Chinese law, institutional architecture, legal culture, and technical lan-
guage are currently infiltrating both SARs legal traditions. This process
is occurring mostly in public/constitutional law and with respect to insti-
tutions, the separation of powers, and the role of the judiciaryareas
Palmer considers critical for the mixing process, when expansive polit-
ical legal and institutional forces take over pre-existing ones.16 Even the
very concept of the rule of law is undergoing a reshaping process in the
two formerly Western, colonial possessions, acquiring some Chinese char-
acteristics17or at least, so far, a more Chinese flavour.
However, the Chinese hybridization process is occurring in a way
which is more complex and sophisticated than the simple superimposition
described in Palmers theory. We might perhaps call it a smart process,
combining the hard superimposition of legal and institutional reforms
with a soft, more subtle approach. One reason for the differences may lie
in the Peoples Republic of Chinas (PRC) interest in permitting both re-
gions to operate their current affairs, as far as possible, in the same man-
ner as before the handover. This would also be connected, to some extent,
to Chinas international obligations related to the two territories.
The main reasons for the complexity of this process might lie, howev-
er, in uniquely Chinese traits and characteristics: mixity studies have
generally revealed the process and details of Western mixtures of law.
When observing the superimposition of a Chinese institutional and legal
framework on two Westernized legal systems, hailing from both main
Western traditions, it is reasonable indeed to expect the process to be dif-
ferent, and to see a different set of relevant elements take part in the pro-
cess.
II. China and Its Two SARs: Institutional Superimposition
Hong Kong and Macau are former colonies of the United Kingdom
and Portugal, handed over to the PRC in 1997 and 1999, respectively, in
accordance with the Sino-British (1984) and Sino-Portuguese (1987) Joint
Declarations. After their reversion to China, these two international cov-
16 Palmer, Introduction, supra note 9 at 9-10.
17 On the developing Chinese rule of law and its features, see Castellucci, Rule of Law,
supra note 7.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 673
enants granted these territories a high degree of autonomy18 and the
survival of their social, economic, and legal systems, which were to be left
basically unchanged for at least 50 years.19
The scheme has been implemented by making the two territories Spe-
cial Administrative Regions (, tbi xngzhngq) of the PRC,
with their specific institutions and legal systems different from those of
Mainland China. This peculiar status hails from the implementation of
the political/institutional model known as One Country, Two Systems
(, y g guji ling zhng zhd; or ygu lingzh, ,
in its shorter form) (OCTS). This model was devised by Deng Xiao Ping in
the early 1980s and proposed as a scheme for the reunification under
Chinese sovereignty of Hong Kong, Macau and (especially) Taiwan.20
The hybrid nature of Mainland Chinas legal system is nowadays
quite obvious to most due to the PRCs legal reforms of the past decades,
from the countrys constitution down to local regulations, and to the in-
troduction of the socialist market economy.21 The hybridization of the
18 Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of
China, 3d Sess, 7th National Peoples Congress (NPC), 4 April 1990, art 2, reprinted
in 29 ILM 1511, online:
Regio Administrativa Especial de Macau da Repblica Popular da China [Basic Law
of the Macau Special Administrative Region of the Peoples Republic of China], 1st Sess,
8th NPC, 31 March 1993, art 2 (unofficial English translation available online:
19 Joint Declaration of the Government of the United Kingdom and the Government of
China on the Question of Hong Kong, 19 December 1984, 1399 UNTS 33, arts 3(3), 3(5),
3(12) [Sino-British Joint Declaration]. These articles list the basic policies that the
Chinese government undertakes to implement in the Region. China undertook similar
obligations regarding Macau: Joint Declaration of the Government of Portugal and the
Government of China on the Question of Macau,13 April 1987, 1498 UNTS 195, arts
2(2), 2(4), 2(12) (unofficial English translation at 229) [Sino-Portuguese Joint Declara-
tion]. Article 5 of both the HK Basic Law (supra note 18) and the Macau Basic Law (su-
pra note 18) provide that [t]he socialist system and policies shall not be practised in the
[Hong Kong/Macau] Special Administrative Region, and the previous capitalist system
and way of life shall remain unchanged for 50 years. This amounts more to an obliga-
tion not to introduce the Chinese socialist system than one to leave the previous sys-
tems unchanged.
20 See Albert HY Chen, The Theory, Constitution and Practice of Autonomy: The Case of
Hong Kong in Jorge Costa Oliveira & Paulo Cardinal, eds, One Country, Two Systems,
Three Legal Orders Perspectives of Evolution: Essays on Macaus Autonomy after the
Resumption of Sovereignty by China (Berlin: Springer, 2009) 751 at 756 [Chen, The
Case of Hong Kong]. An overall description of the OCTS policy is available on the gov-
ernments official web portal (China, State Council Information Office, One Country,
Two Systems, online: China Internet Information Center
21 See Ignazio Castellucci, Reflections on the Legal Features of the Socialist Market
Economy in China (2011) 6:3 Frontiers of Law in China 343.
674 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
two SARs, however, is a more subtle process, combining institutional
change and superimposition of the Mainland policies on the two territo-
ries with the PRCs commitment to maintain their socio-economic and le-
gal systems basically unchanged for 50 years. Notwithstanding the
agreements reached in both joint declarations, a major cause of hybridiza-
tion in the two territories is their very restitution to China. Major changes
in the territories institutional setting followed the resumed sovereignty of
China. Basic laws have been enacted in each SAR, having a quasi-
constitutional nature and supra-legal hierarchical level; a substantial de-
gree of political influence by the authorities in Beijing became apparent in
both SARs. All these elements do affect the legal environment.
The two SARs provide indeed a very useful laboratory for Beijing to
test the OCTS model and to conduct socio-political, institutional, and legal
experiments. The SARs are, of course, sources of ideas and economic, legal
models, and legal vocabulary that are usefully imported into Chinas so-
cialist society for its market-economy-related reforms,22 like the introduc-
tion of legislation on trusts or that on securities, modeled on the Hong
Kong ones, or other developments of all sorts.23
The fundamental legal connection of the two SARs with the PRC is
given by article 31 of the Chinese constitution, which stipulates that Spe-
cial Administrative Regions can be created within China to which com-
mon Mainland law (including most of the PRCs constitutional provisions
apart from article 31) and institutions shall not apply. Instead, specific
systems are applicable therein, within the frame of specific laws issued by
the National Peoples Congress. Each SAR, thus, has a basic law, a legal
document of a quasi-constitutional nature, hierarchically placed above lo-
cal legislation and other local normative sources. Basic laws have been
drafted by mixed committees of experts from the Mainland and each SAR,
and then approved in Beijing by the National Peoples Congress and
promulgated by the president of the PRC. An Annex III to each basic
22 See Castellucci, Rule of Law, supra note 7 at 75-82 ; Ignazio Castellucci, Precedent
and the Law: Report for the Macao Special Administrative Region, Peoples Republic of
China in Ewoud Hondius, ed, Precedent and the Law (Brussels: Bruylant, 2007) 349
[Castellucci, Precedent]; Yash Ghai, The Intersection of Chinese Law and the Com-
mon Law in the Special Administrative Region of Hong Kong: Question of Technique or
Politics? in Oliveira & Cardinal, supra note 20, 13, which is also published in (2007)
37:2 Hong Kong LJ 363 at 365 [Ghai, Intersection cited to Hong Kong LJ]. On legal
vocabulary specifically, see Alice Lee, Language and the Law in Hong Kong: From
English to Chinese (1996) 3:2 Current Issues in Language and Society 156.
23 E.g., horse racing was introduced experimentally in 2008 in Wuhan, with a view to in-
troduce commercial betting on horse races in the Mainland, a proposal modelled on Ma-
cau and Hong Kongs racing business (Xinhua, Horse racing back on Wuhan courses
China Daily (1 December 2008), online: China Daily
LEGAL HYBRIDITY IN HONG KONG AND MACAU 675
law lists the few very fundamental laws of the PRC that shall also be ap-
plicable in the SARs.24
Hong Kong and Macau are authorized by the National Peoples Con-
gress to exercise a high degree of autonomy and enjoy executive, legisla-
tive and independent judicial powers, including that of final adjudica-
tion.25 This autonomy certainly does not amount to independence. As a
matter of fact, the extent and limits of such autonomy are a crucial issue,
if not the crucial issue, in the current political, constitutional, and legal
debate about China and its SARs. Article 31 of the constitution of the PRC
is applicable in the SARs, for which specific basic laws have been enacted
in Beijing accordingly: the two SARs are now inalienable parts of the
territory of the PRC; the PRC has sovereignty over them and discharges
sovereign functions for them such as foreign and defense affairs.26 The
special autonomy granted to the territories is entrusted to their respective
executive bodies and is placed in a pre-eminent position by their basic
laws and by political reality, as suggested by the fact the regions are spe-
cial administrative regions.27 In these jurisdictions legislative bodies
24 Related to capital city of China, calendar, national anthem, flag of the Peoples Republic
of China; National Day of the PRC; territorial sea and contiguous zone, exclusive eco-
nomic zone and continental shelf; nationality; diplomatic privileges and immunities; na-
tional emblem; the Chinese military garrison in the SARs; judicial immunity for assets
of foreign central banks.
25 HK Basic Law, supra note 18, art 2; Macau Basic Law, supra note 18, art 2. The con-
tents of the two basic laws are, mutatis mutandis, nearly identical.
26 Sino-British Joint Declaration, supra note 19, art 3(2); Sino-Portuguese Joint Declara-
tion, supra note 19, art 2(2); HK Basic Law, supra note 18, arts 1, 13-14; Macau Basic
Law, supra note 18, arts 1, 13-14.
27 See e.g. HK Basic Law, supra note 18, arts 43, 45, and Macau Basic Law, supra note
18, arts 45, 47, which specify that both regions chief executive, who acts as the head of
the Special Administrative Region, shall be selected through local elections but be ap-
pointed by and accountable to the Central Peoples Government in Beijing. Each re-
gions basic law grants the chief executive the power to refuse to sign and promulgate
bills passed by the Legislative Council and to dissolve the Legislative Council when it
reapproves a bill that had been initially returned by the chief executive (HK Basic Law,
supra note 18, arts 49-50; Macau Basic Law, supra note 18, arts 51-52). The chief exec-
utives also has the power to appoint members of the judiciary and, in Macau, may ap-
point some members of the Legislative Council. The chief executive has the power to
nominate the appointment of top SAR officials (e.g., the auditor-general and the com-
missioners of police and customs) to the Central Peoples Government and recommend
their removal (HK Basic Law, supra note 18, art 48; Macau Basic Law, supra note 18,
art 50). Remarkably, the chief executive appoints the head of the regions highest court,
but the chief executive of Macau may only nominate the procurator-general, who must
be appointed by the Central Peoples Government. In Hong Kong, by contrast, the De-
partment of Justice controls the prosecutions service and the secretary of justice is
appointed by the Central Peoples Government under art 48 (HK Basic Law, supra note
18, arts 63, 88, 90; Macau Basic Law, supra note 18, arts 88, 90). This reveals a typical-
676 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
remain in the shadows as general policy-making organs, and the judiciar-
ies tend to show a somehow subordinate attitude vis–vis the executive
more pronouncedly in Macau, less so in Hong Kong.28
The two territories political elites are very closely connected to those
of the Mainland, the latter being capable of affecting the formers visions
and policies. There is a strong political relation between the government
in Beijingwhich features a special department for Hong Kong and Ma-
cau Affairs with ministerial rank as well as officers of the central govern-
ment residing in the two SARsand the two SARs chief executives.29
The socialist idea of a single power with different functionsinstead
of a Western-style separation of powers with effective checks and balanc-
eswith a key role for political and institutional supervision, typical of
Mainland Chinas socialist ideology,30 is increasingly seeping into the po-
litical-institutional framework and culture of the SARs.
III. Legal Infiltrations: Interpreting the Basic Laws
A. The Interpretive Mechanism
An important feature of the SARs new legal environment is the fact
that the highest courts in the SARs lack the power to definitively inter-
pret their respective basic laws31, a feature that seems to contradict to
ly socialist attitude, of giving pre-eminence to the procuratorial system within the judi-
ciary: see Castellucci, Rule of Law, supra note 7 at 51-54.
28 A long description of the chief executives central importance and prerogatives is made
in Ieong Wan Chong, et al, One Country, Two Systems and the Macao SAR (Macau:
Centre for Macau StudiesUniversity of Macau, 2004), ch VIII, especially sections
The Unique Characteristics of the Chief Executive and The Executive-Led Model of
Separation of Powers, at 304 and 319, respectively. Chen, The Case of Hong Kong,
supra note 20 at 763, also describes the Hong Kong system as being executive-led, ac-
cording to Mainland scholars and drafters of the Basic Law.
29 The implementation in the SARs of law passed in Beijing is expressly entrusted to the
chief executive (HK Basic Law, supra note 18, art 48(2); Macau Basic Law, supra note
18, art 50(2)).
30 Xin Chunying, Chinese Courts: History and Transition (Beijing: Law Press, 2004) at 99-
101 [Xin Chunying, Chinese Courts]; Castellucci, Rule of Law, supra note 7 at 43.
31 Article 143 of the Macau Basic Law (supra note 18) states:
The power of interpretation of this Law shall be vested in the Standing
Committee of the National Peoples Congress. The Standing Committee of
the National Peoples Congress shall authorize the courts of the Macao Spe-
cial Administrative Region to interpret on their own, in adjudicating cases,
the provisions of this Law which are within the limits of the autonomy of the
Region. The courts of the Macao Special Administrative Region may also in-
terpret other provisions of this Law in adjudicating cases. However, if the
LEGAL HYBRIDITY IN HONG KONG AND MACAU 677
some extent article 2 of both basic laws, which stipulate that SARs enjoy
judicial power including local final adjudication.
In fact, the interpretation of rules of either basic law can only be done
in the relevant territory by the local court system as long as it does not
involve any issue falling under the authority of the PRCs central govern-
ment or relating to the relations between the SARs and the Mainland. Ac-
cording to articles 143 of the Macau Basic Law and 158 of the Hong Kong
Basic Law,
The Standing Committee of the National Peoples Congress shall
authorize the courts of the [Hong Kong / Macau] Special Administra-
tive Region to interpret on their own, in adjudicating cases, the pro-
visions of this law which are within the limits of the autonomy of the
region.32
Otherwise, an interpretation of the relevant provisions of the basic
laws shall be sought in Beijing, to be issued by the Standing Committee of
the National Peoples Congress (NPCSC)33, the top legislative/political or-
gan of the PRC. Thus, before issuing a final decision, the courts of both
territories must ask Beijing for a binding interpretation to be applied to
the case at hand.34
It is not a courts job, whether in the SARs or the PRC, to find inter-
pretations of the basic law beyond routine prima facie applications of its
black-letter rules. Quite differently from the Western approach, in the so-
cialist legal tradition of China adjudication is a different function from in-
courts of the Region, in adjudicating cases, need to interpret the provisions of
this Law concerning affairs which are the responsibility of the Central Peo-
ples Government, or concerning the relationship between the Central Au-
thorities and the Region, and if such interpretation will affect the judgments
in the cases, the courts of the Region shall, before making their final judg-
ments which are not appealable, seek an interpretation of the relevant provi-
sions from the Standing Committee of the National Peoples Congress
through the Court of Final Appeal of the Region. When the Standing Com-
mittee makes an interpretation of the provisions concerned, the courts of the
Region, in applying those provisions, shall follow the interpretation of the
Standing Committee. However, judgments previously rendered shall not be
affected. The Standing Committee of the National Peoples Congress shall
consult its Committee for the Basic Law of the Macao Special Administrative
Region before giving an interpretation of this Law.
The corresponding article in the HK Basic Law (supra note 18, art 158) is very similar.
32 Macau Basic Law, supra note 18, art 143; HK Basic Law, supra note 18, art 158.
33 The NPCSC is also vested with the authority to interpret the national laws of Mainland
China: Legislation Law of the Peoples Republic of China, 3d Sess, 9th NPC, 15 March
2000, art 42 (unofficial English translation available online:
34 Macau Basic Law, supra note 18, art 143; HK Basic Law, supra note 18, art 158.
678 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
terpretation, the former being thought of rather as mere application of the
law. If interpretation is arguably the most characteristically technical el-
ement in the Western tradition and theory of law, in the Chinese tradition
and theory it is something substantially different: it is considered to be
law-making in nature, and thus, belongs to the lawmaker. It is not (only)
subject, consequently, to technical standards and rules but (mostly) to its
instrumental role in policy implementation.35
This principle is now also applicable to the SARs basic laws, when lo-
cal SARs systems have to interact with general national interests and
with the national legal frame.
The two SARs legal systems, however, displayed different levels of re-
sistance towards it for a variety of reasons, which will be discussed below.
One of these is that Hong Kongs common law heritage implies the doc-
trine of stare decisis, which makes new interpretationsas well as the en-
forcement of political directives through interventions in the work of the
judiciarymore difficult than in Macau. The operation of the Basic Laws
principle for the interpretation of the Basic Law had to face some re-
sistance in the Hong Kong legal environment and indeed provoked some
political, constitutional, and legal shockwaves not seen in Macau.
After the handover of the former British colony to China, sensitive and
controversial issues involving the interpretation of local law and the Basic
Law of Hong Kong have been dealt with by the NPCSC. Four binding in-
terpretations have been issued thus far since 1997. Each interpretation
has been considered by many Hong Kong lawyers and jurists as contrary
to a correct technical interpretation of the Basic Law made in accord-
ance with consolidated common law standards and precedents. Each at-
tracted international attention; the first two, also, a degree of local politi-
cal confrontation.
B. Ng Ka Ling
The first of those four cases related to the right of abode in Hong
Kong for Chinese nationals. Only a couple of years after the handover, the
Hong Kong Government asked the NPCSC for an interpretation of the
Basic Law to balance its provisions on the right of abode with some re-
strictive rules of the territorys immigration law.
35 See Ghai, Intersection, supra note 22 at 401-02; Castellucci, Rule of Law, supra note
7 at 44-46; Chien-huei Wu, One Country, Two Systems, and Three Memberships: Le-
gal and Economic Integration between China and Its Two SARs (2007) 7:3 Global Ju-
rist Advances 1 at 2-6 [Wu, Integration] (elaborating on the differences in Chinese law
between interpretation of law (of a legislative nature) and judicial interpretation).
LEGAL HYBRIDITY IN HONG KONG AND MACAU 679
The government did so after a final judicial decision had been issued
by the Court of Final Appeal (CFA). The CFA had extended the right of
abode to the children of a person resident in the territory and had de-
clared the restrictive Hong Kong legislation unconstitutional, as being
contrary to the Basic Law and to the International Covenant on Civil and
Political Rights (1966 International Covenant).36
The mentioned court decision was entirely within common law stand-
ards and consistent with the 1966 International Covenant. The CFA clari-
fied that it was within its powers to assess whether there was a need, or
not, to activate the mechanisms of article 158 requesting an interpreta-
tion of the Basic Law to the NPCSC in Beijing, finding it was not the case
in that particular instance.
A political issue exploded as the ruling was deemed to be wrong both
by the Hong Kong government and by Mainland political-legal circles. A
request to the NPCSC of interpretation of the Basic Law articles 22 and
24 on the right of abode, made by the Hong Kong government instead of
the CFA, became the subject of political and constitutional debate over the
independence of Hong Kong courts.
Less than a month after the ruling, the CFA had to issue a quite unu-
sual clarification in the form of a functus officio order at the request of the
SAR Government.37 Such a clarification was certainly not within the
range of ordinary legal products of the court: the order has been issued
based on the courts inherent jurisdiction38 and the need to clarify (in-
cluding placating Mainland authorities) that
[t]he Courts judicial power is derived from the Basic Law. Article
158(1) vests the power of interpretation of the Basic Law in the
Standing Committee under art 158(2) and 158(3) … .
The Courts judgment on 29 January 1999 did not question the au-
thority of the Standing Committee to make an interpretation under
art 158 which would have to be followed by the courts of the Re-
gion. The Court accepts that it cannot question that authority. Nor
did the Courts judgment question, and the Court accepts that it
cannot question, the authority of the National Peoples Congress or
36 Ng Ka Ling v Director of Immigration, 2 HKCFAR 4 at 36, 40, 46, [1999] 1 HKLRD 315,
[Ng Ka Ling]. See also International Covenant on Civil and Political Rights, 19 Decem-
ber 1966, 999 UNTS 171, 6 ILM 368. The covenant is applicable in Hong Kong by virtue
of the Hong Kong Bill of Rights Ordinance, (1991) c 383, and the HK Basic Law, supra
note 18, art 39.
37 Ng Ka Ling v Director of Immigration (No 2), [1999] 1 HKLRD 577 (available on WL
Can) [Ng Ka Ling CFA clarification cited to HKLRD]
38 Ibid at 578 (short argument of Li CJ, to which the other members of the panel adhered
unanimously).
680 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the Standing Committee to do any act which is in accordance with
the provisions of the Basic Law and the procedure therein.39
Basically, the clarification was the product of political pressure from
Beijing and amounted to an acknowledgement of the fact that the NPCSC
has full power to intervene and interpret the Basic Law at its own will,
not just when solicited to do so by the CFA according to article 158 of the
Basic Law of Hong Kong. Shortly thereafter, the Hong Kong government
publicly announced it would seek the intervention of the NPCSC, stating
its reasons:
8. We have considered inviting the CFA to reconsider its decision
when the relevant material issues are raised in a future case that
comes before it. The advantage of this approach is that any change
in the interpretation of the Basic Law would be achieved by judicial
action in Hong Kong.
9. However, there is no guarantee that an appropriate case will
emerge shortly. Even such [sic] a case does emerge, it would take a
long time to reach the CFA and this would offer no quick solution to
the problem. Moreover, we could not be sure that the CFA would
reach a different conclusion on the relevant issues. If it did, the CFA
might be criticized as having yielded to political pressure instead of
making a rational judicial decision. This would damage its credibil-
ity.
10. Legal analysis indicates that the chance of the CFA reversing its
judgment is slim. Under common law principles, there must be sta-
bility in case precedents. Unless there are changes in the circum-
stances or in legal viewpoints over a long period of time, the CFA
will not easily reverse any of its previous decisions. The House of
Lords in Britain has unanimously ruled that even if it considered
that a previous judgment had been wrongly decided, this did not
constitute sufficient grounds for reversion. If the CFA in Hong Kong
adopts this principle, it could not possibly change its judgment made
on 29 January within just a few months.
11. We must stress that by reversion we mean the CFA reverses its
previous decision in a similar case in the future. We are not asking
the CFA to reverse its original judgment when there is no case before
it. Such an approach is without legal basis, nor is it acceptable. …
18. However, NPCSCs interpretation of the Basic Law may be re-
garded by common law jurisdictions and some people in Hong Kong
as undermining the rule of law and CFAs power of final adjudica-
tion, as well as interference with the judicial independence and jeop-
ardizing Hong Kongs autonomy. These perceptions may attract
negative criticisms on NPCSCs interpretation and the HKSAR Gov-
ernment. …
39 Ibid.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 681
19. After careful consideration of the pros and cons of the above op-
tions, the SAR Government takes a view that the problems should be
resolved by an interpretation of the BL. This approach offers the most
resolute, prompt and conclusive solution to the present problems. It is
also conducive to maintaining the prosperity and stability of Hong
Kong, and is in our long term and overall interests. …
20. The Basic Law is a national law. Under the Mainland system, the
ultimate power to interpret statutes is vested in the NPCSC. Since the
NPC enacts statutes, its Standing Committee knows best what the
true legislative intent was and is the most authoritative body to in-
terpret the law. …
22. Given this constitutional background, would an interpretation of
right of abode issues under the BL in fact undermine the rule of law?
The CFA stated clearly on 26 February40 that it could not question
the authority of the NPCSC to make an interpretation under the
Basic Law, which would have to be followed by the SAR courts. In
other words, an NPCSC interpretation of the Basic Law is part of our
new constitutional order. This is entirely consistent with the rule of
law.41
The government of Hong Kong explained its action to involve the NPCSC,
making clear that in the new constitutional order this was the appropri-
ate way to solve the substantial problem and showing, at the same time,
respect for the common law tradition of the territory, and concern for the
CFAs credibility in the future. With this statement, following the Ng Ka
Ling CFA clarification,42 the constitutional crisis was settled.
The NPCSC interpretation was issued soon thereafter and it was, of
course, consistent with the more restrictive policies of both the Beijing
and Hong Kong governments. It was grounded, technically speaking, on
an interpretation of the Basic Law provisions on the right of abode based
on legislative intent and context, which is typically a Chinese way of stat-
utory interpretation alien to the common law tradition.43 Subsequent cas-
40 The reference is to the Ng Ka Ling CFA clarification, supra note 37.
41 Hong Kong Special Administrative Region, Office of the Chief Executive, Right of
Abode: The Solution (18 May 1999), online: Legislative Council of Hong Kong
sis added].
42 Supra note 37.
43 Interpretation by the Standing Committee of the National Peoples Congress of Articles
22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of
the Peoples Republic of China, 10th Sess, Standing Committee of the 9th NPC, 26 June
1999 (English translation available online:
The legislative intent as stated by this Interpretation, together with the leg-
islative intent of all other categories of Article 24(2) of the Basic Law … have
been reflected in the Opinions on the Implementation of Article 24(2) of the
682 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
es relating to the right of abode have all been adjudicated in the courts of
the Hong Kong SAR according to the NPCSC interpretation.44
The intervention of the NPCSC in this case, unsolicited by the CFA as
provided by article 158 of the Hong Kong Basic Law, shows some con-
sistency with general principles of the Chinese legal system on attribution
of jurisdiction to the different levels of courts, from the grassroots level up
to the Supreme Peoples Courts, according to the general impact of the
case: e.g. a higher court may well decide, motu proprio, to attract into its
jurisdiction and entertain a case already introduced before a lower one.45
Basic Law of the Hong Kong Special Administrative Region of the Peoples
Republic of China adopted at the Fourth Plenary Meeting of the Preparato-
ry Committee for the Hong Kong Special Administrative Region of the Na-
tional Peoples Congress on 10 August 1996.
44 See e.g. Lau Kong Yung v Director of Immigration, [1999] 3 HKLRD 778 (available on
WL Can) (CFA).
45 As it is easy to see in the following provisions on attribution of jurisdiction by level of
court in the Civil Procedure Law of the Peoples Republic of China (4th Sess, 7th NPC, 9
April 1991) (English translation in Wei Luo, The Civil Procedure Law and Court Rules
of the Peoples Republic of China (Buffalo: William S Hein & Co, 2006); alternate trans-
lation available online:
Article 18: A basic peoples court shall have jurisdiction as the court of first
instance over civil cases, unless otherwise stipulated in this law.
Article 19: An intermediate peoples court shall have jurisdiction as courts
[sic] of first instance over the following civil cases:
(1) Major cases involving foreign elements,
(2) Cases that have major impacts in the area of its jurisdiction, and
(3) Cases under the jurisdiction of the intermediate peoples courts
as determined by the Supreme Peoples Court.
Article 20: A higher peopless courts [sic] shall have jurisdiction as the court
of first instance over civil cases that have major impacts on the areas of its
jurisdiction.
Article 21: The Supreme Peoples Court shall have jurisdiction as the court of
first instance over the following civil cases:
(1) Cases that have major impacts on the whole country, and
(2) Cases that the Supreme Peoples Court deems should be adjudi-
cated by itself.
Article 39: Peoples courts at higher levels shall have the authority to try civil
cases over which peoples courts at lower levels have jurisdiction as courts of
first instance; they may also transfer civil cases over which they themselves
have jurisdiction as courts of first instance to peoples courts at lower levels
for adjudication.
If a peoples court at a lower level deems it necessary for a civil case of first instance un-
der its jurisdiction to be tried by a peoples court at a higher level, it may request such a
peoples court to try the case.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 683
The underlying idea clearly seems to be that the identification of the
appropriate jurisdiction as well as the subsequent application of the law
to a case are not neutral, technical operations solely regulated by the law,
as it would be under the Western concept of the rule of law. An element of
policymaking or policy-enforcing is instead involved in the Chinese prin-
ciples of the judicial process, warranting a degree of operational discretion
which has to be exercised at the appropriate level of authority by a court
expressed, supervisedand in fact interfered withby the appropriate
level of the political and governmental pyramids.46
C. Subsequent Interpretations of the Basic Law by the NPCSC
In the next case of interpretation of the Hong Kong Basic Law in
2004, the NPCSC, solicited by the central Chinese government, inter-
vened in the constitutional reform process. Article 45 of the Basic Law
stipulates that
The Chief Executive of the Hong Kong Special Administrative Re-
gion shall be selected by election or through consultations held local-
ly and be appointed by the Central Peoples Government.
The method for selecting the Chief Executive shall be specified in
the light of the actual situation in the Hong Kong Special Adminis-
trative Region and in accordance with the principle of gradual and
orderly progress. The ultimate aim is the selection of the Chief Ex-
ecutive by universal suffrage upon nomination by a broadly repre-
sentative nominating committee in accordance with democratic pro-
cedures.
The specific method for selecting the Chief Executive is prescribed in
Annex I: Method for the Selection of the Chief Executive of the
Hong Kong Special Administrative Region.47
A similar rule is in article 68 with respect to the elections of the Legisla-
tive Council. Annex I to the Basic Law provides for the method of election
of the chief executive based on limited functional, politically controlled
constituencies, suggesting however that the system could be open for re-
46 All authors researching Chinese law do emphasize the very strict operational relations
and the structural political interferences of the Chinese political and governmental ap-
paratuses with the work of Chinese courts: see e.g. Castellucci, Rule of Law, supra
note 7 at 51-58; Chen, Introduction, supra note 7; Nanping Liu, Opinions of the Su-
preme Peoples Court: Judicial Interpretation in China (Hong Kong: Sweet & Maxwell
Asia, 1997); Peerenboom, supra note 7; Xin Chunying, Chinese Courts, supra note 30.
47 HK Basic Law, supra note 18, art 45.
684 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
forms after the elections of 2007. Annex II provides similarly for the Leg-
islative Council elections.48
Large quarters of the Hong Kong public expectedagainst the inclina-
tion of the SARs government and of central authoritiesuniversal suf-
frage to become the method for the elections of the chief executive and for
the Legislative Council following those of 2007. At a minimum, they ex-
pected to have the reform process for democratization started for both the
legislative and executive organs of the SAR.
The interpretation of the NPCSC intervened in a very hot debate, clar-
ifying that the process shall be controlled tightly by the central authori-
ties in Beijing and that its gradual nature shall prevail over the tension
towards universal suffrage. As such, it introduced a controlling role for
Beijing in the SARs democratization process, expressly reinforcing the
nature of the SAR as an executive-led administrative region, and effec-
tively delaying universal suffrage sine die.49
The controlling role discharged by Beijing over the democratization in
the SARs elections is confirmed by a subsequent decision of the NPCSC,
in 2007, setting a timetable for the process expressed in quite flexible
terms.50
Another case of interpretation with heavy political implications took
place in 2005, when the then-incumbent chief executive resigned two
48 Ibid, art 68, Annexes I, II. Annexes I and II of the Macau Basic Law (supra note 18)
provide similarly, with reference to elections taking place after 2009.
49 Ghai, Intersection, supra note 22 at 396-98. The election processes for the chief execu-
tive and the Legislative Council have been reformed in 2010 to introduce some amend-
ments for the elections to be held in 2012, still within the general model of functional
constituencies.
50 Decision of the Standing Committee of the National Peoples Congress on Issues Relat-
ing to the Methods for Selecting the Chief Executive of the Hong Kong Special Adminis-
trative Region and for Forming the Legislative Council of the Hong Kong Special Ad-
ministrative Region in the Year 2012 and on Issues Relating to Universal Suffrage, 31st
Sess, Standing Committee of the 10th NPC, 29 December 2007 (English translation
available online: Government of Hong Kong
chief executive and the Legislative Council. The Hong Kong government subsequently
published a report on the issue: Hong Kong Special Administrative Region, Constitu-
tional and Mainland Affairs Bureau, Consultation Document on the Methods for Select-
ing the Chief Executive and for Forming the Legislative Council in 2012 (November
2009), online: Government of Hong Kong
NPCSC Decision also stated that universal suffrage may become the model for the
elections of 2017a possibility expressed in terms that made one political commentator
state that [t]he only certainty is that Hong Kong will get exactly what Beijing wants it
to have: Augustine Tan, Hong Kong on the march again, Asia Times (11 January
2008) online: Asia Times
LEGAL HYBRIDITY IN HONG KONG AND MACAU 685
years before the end of his mandate (officially due to health problems;
however most political commentators and scholars agree that it has been
due to his falling into disgrace with central authorities). An interpretation
was requested to the NPCSC by the Chinese government to clarify
whether the newly elected chief executive would serve an entire five-year
new term according to article 46 of the Basic Law or just the remainder of
his predecessors term, until 2007. The latter solution prevailed, although
contrary to the views of most Hong Kong observers and legal profession-
als. A remarkable document related to this issue, expressing the views of
the SARs and central authorities, is the Reply of the Department of Justice
of 1 April 2005 to the Bar association, the latter having expressed support,
instead, for a five-year term of the elected officer according to common law
standards of statutory construction.51 The Department of Justice ob-
served:
The Bar Association expressed concern about the Secretary for Jus-
tices reliance on Mainland legal scholars when coming to her view
on the Chief Executives term of office. …
The Department of Justice wishes to emphasize that the provisions
in the Basic Law relating to the appointment of the Chief Executive
are provisions concerning affairs which are the responsibility of the
Central Peoples Government, and which concern the relationship
between the Central Authorities and the Region. …
This being so, the Department of Justice considers it appropriate to
seek the views of Mainland legal experts, particularly the views of
members of the Legislative Affairs Commission of the NPCSC, as to
the way in which the NPCSC would interpret those provisions. …
The Bar states that there are advantages in the common law ap-
proach of construing legislative intent by reference to the language
of text in its context and its purpose, as opposed to relying on recol-
lections of Mainland scholars of assumptions behind the intent of
the Basic Law Drafting Committee and the NPC in adopting the
Basic Law.
The Department of Justice agrees that there are advantages in the
common law approach towards statutory interpretation. However, it
notes that, when construing the Basic Law, the courts are not re-
stricted to the language of text in its context and its purpose. The
Court of Final Appeal ruled in the case of Director of Immigration v
51 Hong Kong Special Administrative Region, Department of Justice, The Chief Execu-
tives Term of Office: Response of the Department of Justice to the Hong Kong Bar Asso-
ciations Statement of 17 March 2005 (1 April 2005), online: Government of Hong Kong
Kong Bar Association, Secretary for Justices Statement on the Term of the New Chief
Executive of the HKSAR: Statement of the Hong Kong Bar Association (17 March 2005),
online: Hong Kong Bar Association
686 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Chong Fung-yuen that: Extrinsic materials which throw light on
the context or purpose of the Basic Law or its particular provisions
may generally be used as an aid to the interpretation of the Basic
Law.52
The NPCSC decision was based on a Chinese interpretation of the
five-year term provided in article 46 of the Basic Law. According to the
NPCSC, article 46 provides for a fixed duration of the term of office, not
necessarily of each individual elected officer; a fixed term of the overall
duration of five years may thus include consecutive, elected officers in
case of early resignation of the originally elected one.53 Support for this
approach also came from the literal provision in Annex I, which states
that elections for the chief executive be held in 2007.54
The short-term chief executive elected in 2005 was then re-elected in
2007: political commentators suggest the first, short term was applied for
Beijing to test his performance, before allowing his re-election for a full
five-year term.55
Both cases were related to very sensitive political issues. In both cas-
es, Beijing and the government of the SAR intervened to prevent the le-
galization of issuesi.e. avoiding that doubts would end up before the
courts, where another constitutional crisis like the one related to the Ng
Ka Ling case, or at least some degree of political confrontation would have
been more or less certain.
D. The Congo Case
The most recent interpretation of the Hong Kong Basic Law by the
NPCSC materialized in 2008-2011; it has been the first ever activated by
the Hong Kong CFA according to article 158 of the Basic Law, within the
frame and towards the end of judicial proceedings having escalated the
entire judicial pyramid in the SAR, receiving extensive coverage in Hong
Kong media as the Congo case.56
52 HKSAR, Response to Bar, supra note 51.
53 Ibid.
54 Ghai, Intersection, supra note 22 at 399.
55 Ibid.
56 FG Hemisphere Associates LLC v Democratic Republic of Congo (2008), [2009] 1
HKLRD 410 (Court of First Instance) [Congo (CFI)], revd [2010] 2 HKLRD 66, [2010]
HKEC 194 [Congo (CA decision)], leave to appeal to CFA granted [2010] 2 HKLRD
1148, [2010] HKEC 670 [Congo (CA leave to appeal)], provisionally affd and interpreta-
tion of the NPCSC requested by the Court of Final Appeal [2011] HKEC 747 (available
on WL Can) [Congo (CFA provisional decision)], finally affd [2011] HKEC 1213 (availa-
ble on WL Can) (CFA) [Congo (CFA final decision)] (following the interpretation of the
LEGAL HYBRIDITY IN HONG KONG AND MACAU 687
A US investment fund, holding two ICC arbitral awards against the
Democratic Republic of Congo, obtained leave from the Hong Kong High
Court to enforce them in the SAR for an amount of over 100 million US
dollars.57 The assets attached and frozen belonged to Chinese state-owned
enterprises (SOEs) and were to be used for payments to the African gov-
ernment within the framework of the Chinese government economic coop-
eration with developing countries.
The government of Congo applied to the Court of First Instance (CFI)
of the Hong Kong SAR to set aside the leave granted to enforce the
awards in the SAR. The African government had raised a defence in rela-
tion with its sovereign activities, acts of State not being subject to the
jurisdiction of Hong Kong courts according to article 19 of its Basic Law.
The Chinese government also had an interest in seeing an absolute con-
cept of sovereign immunity enforced and in keeping its activities (and re-
lated resources) for economic cooperation with developing countries not
subject to the jurisdiction of Hong Kong courtsand thus immunized
from attacks of creditors of the relevant country.
A letter of the Mainland government commissioner for foreign affairs
in the Hong Kong SAR, arguing in favour of the Chinese absolute doctrine
of sovereign immunity, was sent to the CFI and put on the record of the
proceedings. The secretary of justice of Hong Kong also intervened in the
case to support the view of the Chinese government. The argument was
that dealing with the concept of act of State involved national foreign
policy and that it was impossible that a legal concept having a substantial
foreign policy dimension could have different contents in the SAR and the
Mainland.
The opposing legal position of the US investment fund was connected
to the narrower concept of act of State firmly established at common
law, also in Hong Kong, which would not immunize the resources in the
case at hand from jurisdiction.
In 2008, the CFI ordered that the leave to enforce the awards be set
aside, recognizing the public and not merely commercial nature of the ac-
tivities to which the frozen monies were related.58 The CFI ruling was
then reversed by a majority of the Court of Appeal based on the restrictive
theory of state immunity, and the asset freeze injunction was restored.59
Hong Kong Basic Law given by the NPCSC, which is reproduced in Annex 2 of Congo
(CFA final decision)).
57 Congo (CFI), supra note 56 at 415.
58 Ibid.
59 Congo (CA decision), supra note 56.
688 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The court of appeal, however, granted leave to appeal to the CFA consid-
ering the need to deal with the issue of interpretation of the Basic Law.60
As the case reached the CFA, the government of Hong Kong solicited
the court to require an interpretation of the NPCSC according to article
158 of the Basic Law in order to have the actual scope of act of State, as
provided in article 19 of the Basic Law, clarified.
And so the CFA did, with a majority decision of three members
against two (which did not surprise many in the legal community) uphold-
ing the idea that there cannot be two different doctrines of act of State
in two different areas of the same country, and supporting the view that
the Chinese concept is also applicable in Hong Kong since the handover.
The CFA majority wrote:
we have arrived at the following conclusions which, in accordance
with Article 158(3), are necessarily tentative and provisional, name-
ly, that:
(a) The HKSAR cannot, as a matter of legal and constitutional prin-
ciple, adhere to a doctrine of state immunity which differs from that
adopted by the PRC. The doctrine of state immunity practised in the
HKSAR, as in the rest of China, is accordingly a doctrine of absolute
immunity. …
(c) Prior to rendering a final judgment in this matter, the Court is
under a duty pursuant to Article 158(3) of the Basic Law to refer,
and does hereby refer, the questions set out in Section G of this
judgment to the Standing Committee of the National Peoples Con-
gress, being questions relating to the interpretation of Articles13 and
19 of the Basic Law … .61
The CFA thus issued a decision requesting the actual meaning of act
of State as provided in article 19 of the Basic Law be clarified by the
NPCSC. Additionally, the CFA provisionally revoked the injunction freez-
ing Chinese payments to be made in favour of the Congolese government,
supporting the Chinese concept of act of state as applicable in Hong
Kong as well, and thus the Hong Kong courts lack of jurisdiction.62
The NPCSC then issued its interpretation, confirming that the Chi-
nese concept of act of State, related to an absolute immunity of states
60 Congo, (CA leave to appeal), supra note 56 at para 13.
61 Congo (CFA provisional decision), supra note 56 at para 183, Mason NPJ, Chan & Ri-
beiro PJJ.
62 Ibid at paras 407, 413, 415.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 689
from jurisdiction of courts, shall also be applied in the courts of the SAR;
the CFA then confirmed its provisional decision.63
E. Identifying Principles and Rules Being Infiltrated
The above review of the interpretations given by the NPCSC reveals a
significant amount of flexibility introduced in the legal rules applicable in
Hong Kong and in the ways they are interpreted. These findings are con-
sistent with an instrumental concept and function of the law which typi-
cally belongs to the Chinese idea of the rule of law.64 This concept of the
law allows the Chinese authorities operational latitudeup to an almost
unrestricted power for the top echelon of the Mainland central govern-
ment organswhen dealing with subjects and/or lower level entities, per-
haps including an entire administrative region, rather than having the
law defining and limiting Chinese government organs scope of legitimate
action.
A number of important principles of the common law tradition and of
Western rule of law seem to have been subjected to the pressure, when
not plainly to the superimposition, of a more Chinese, socialist vision and
of some of its implementing devices:
1) Courts now adjudicate (article 2 of both basic laws). They are not
inherently competent to interpret the basic laws: they can only do it in
relation to cases of local relevance having so been authorized by the
NPCSC (article 143 of Macau Basic Law and article 158 of Hong Kong
Basic Law), and certainly should not try and declare laws invalid against
it, as demonstrated by the Ng Ka Ling case.
2) The term local in article 2 of both basic laws, stipulating that both
SARs enjoy judicial power including local final adjudication, seems to
identify an impact factor of the decision to fall within the autonomy of
the SARs judiciaries, rather than a purely geographic indicator of where
the case producing the decision is originated, consistent with Chinese pro-
cedural principles on attribution of jurisdiction as discussed above.65
SARs laws apply to local activities; local judicial decisions are given
according to local standards, unless a larger, national interest is in-
volved.
63 Zhao Yinan, Top Legislature Interprets HK Law China Daily (27 August 2011),
online: China Daily
Congo (CFA final decision), supra note 55 at Annex 2.
64 See e.g. Peerenboom, supra note 7; Castellucci, Rule of Law, supra note 7.
65 See Part III, above.
690 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
3) The basic law interpretive device gives the NPCSC the power to de-
cide what is local in individual instancesi.e. falling within the limits
of the autonomy of the Region as per article 158 of the Hong Kong Basic
Law.
4) It also provides the power to interpret the basic lawin the Chi-
nese sense of exercise of a law-making power, thus introducing legal rules
produced in the Mainland, binding on the SARs courts.
5) Moreover, interpretations may be issued by the NPCSC at willor,
not just when solicited by the SARs highest courts,66 or by any SAR au-
thority.67 This is consistent with the already mentioned Chinese principles
on attribution of jurisdiction to organs of different levels, and related
power of higher authorities to intervene with lower ones to take charge of
a given case.
Interpretations of the NPCSC may, in fact, also be issued after a case
is decided wrongly,68 with a case still pending,69 or without any case
pending in court.70 This gives Beijing a tool to directly and unrestrictedly
intervene in the legal systems of the SARs and to define the extent of the
SARs courts jurisdiction, thus introducing a significant element of uncer-
tainty in the SARs legal systems. More generally, the NPCSC has the
power to define the spheres of authority of the two SARs governments,
making the latter ex ante assessment uncertain.
6) Mainland legal doctrines and its method of statutory interpretation
are part of the applicable SARs legal systems and apply to the interpreta-
tion of all PRC laws that are applicable in the SARs according to Annex
III of the basic laws.71 The same applies to the NPCSCs interpretations of
the basic laws, which are issued whenever a larger-than-the-SAR interest
is involved (this assessment being made by the NPCSC).72
66 As clarified by the CFA with the Ng Ka Ling CFA clarification, supra note 37. This was
followed by a request to the NPCSC from the Hong Kong government (HKSAR, Right of
Abode, supra note 41).
67 As it has been the case with the 2004 and 2005 interpretations on elections and term of
office of the chief executive, requested to the NPCSC by the Chinese government.
68 As in the interpretation following Ng Ka Ling, supra note 36.
69 As in the Congo case, supra note 56.
70 As in the 2004 and 2005 interpretations.
71 See e.g. Azan Aziz Marwah v Director of Immigration (2008), [2009] 3 HKC 185 (availa-
ble on QL) (CFI) (on the applicability of PRC statutory interpretation rules to the PRCs
Law on Nationality).
72 See NPCSC Interpretation, supra note 43 and the explicit mention of Mainland doc-
trines in HKSAR, Response to Bar, supra note 51.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 691
7) The SARs chief executives pre-eminent positions in both regions;
the political continuum and strict cooperation between each chief execu-
tive and central authorities; light checks and balances; and the NPCSC
interpretive capability make the SARs legal environment very executive
led and policy sensitivemore similar to that of the Mainlandand sub-
ject to institutional and political pressure from Beijing.
8) All these factors also facilitate the introduction of Chinese critical
legal rules into the SARs, due to the already discussed alerting or solicit-
ing role discharged by the chief executives with the NPCSC in relation to
important matters.
9) Consistent with Mainland practices for political appointees, the
chief executives fixed term of office corresponds to an institutional cycle
with a fixed length, which, as clarified by the interpretation of 2005, may
include several officers, consecutively elected. The mechanism is designed
to improve stability and foreseeability in the political process and to en-
hance control over it, including sometimes to test elected officers perfor-
mance before granting them a full term.
10) The interpretation of law in the two SARs can be very flexible ac-
cording to policy needs and is not subject to consistent technical-legal
standards: contextual elements may be relevant sometimes (as in the
2005 interpretation of the term of office of the chief executive);73 a very lit-
eral interpretation may applied in other cases (as in the 2004 interpreta-
tion on universal suffrage; or as in the Macau governments approach to
law degrees issued in Macaudiscussed below).
11) Procedural rules play a very ancillary role; decisions are taken fol-
lowing the methods more politically appropriate for the case at hand.
They may include such extraordinary output as the clarification issued
by the CFA in Ng Ka Ling, based on its inherent jurisdiction rather
than according to established procedural law.74 This was basically a func-
tus officio non-decision, issued to pave the road for subsequent develop-
ments including the chief executives position75 and the NPCSC interpre-
tation of 1999. It is a judicial product quite far from any Western concept
of rule of law, rather akin in form to Chinese law features such as the re-
trials following governmental/procuratorial requests in cases of wrong
decisions;76 akin, in substance, to an announcement of future change of
the rule previously applied.
73 Ibid.
74 Ng Ka Ling CFA clarification, supra note 37.
75 HKSAR, Right of Abode, supra note 41.
76 Castellucci, Rule of Law, supra note 7 at 53-54.
12) In general, the legalization of issues is not considered the best
692 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
way to deal with complex or sensitive situations.
13) Immigration policy clearly seems to prevail over close family rela-
tions, notwithstanding the protection afforded to the latter in the Basic
Law and in international covenants, through ways (restrictive interpreta-
tion of article 24 of the Basic Law done also considering legislative intent,
purpose and context, according to Mainland standards of statutory inter-
pretation77) and to an extent (certainly also due to policy reasons) that
would not have been likely in many Western jurisdictionsas demon-
strated by the Ng Ka Ling case and the subsequent interpretation of
1999.78 By extending this idea a little bit, it could be said that policy inter-
ests prevail over individual rights and (may thus twist the interpretation
of) legal norms much more often than in the Western tradition, consistent
with general socialist political and legal principles.
14) Universal suffrage is viewed unfavourably. Its implementation is
being delayed by straining the meaning of the transitional provisions in
basic laws Annexes I and II, a different system of election based on func-
tional constituencies being preferred, as proven by the political case relat-
ed to the selection of the chief executive and of the Legislative Council of
Hong Kong culminated with the NPCSC interpretation of 2004.
15) An absolute concept of sovereign immunity typical of the Chinese
law has been introduced in both SARs with the interpretation of 2011.
This provides better protection of Chinese policy interests while disre-
garding Western market economy assumptions and Western law princi-
ples that tend to restrict immunity and equalize sovereigns to individuals
before the courts in a number of instances.79
77 NPCSC Interpretation, supra note 43.
78 Even before the Human Rights Act ((UK) 1998, c 42), English law displayed some atten-
tion to parenthood and a softer attitude, especially when young children have been in-
volved, in assessing the extension of the right of abode: see e.g. R v Secretary of State for
the Home Department ex parte Ajayi (1994), CO/1605/92 at 6 (QL) (QBD); R v Secretary
of State for the Home Department ex parte Natufe (1996), CO/953/96 at 7 (QL) (QBD).
Elsewhere the common law also displays some friendlier approaches to extended pro-
tection of close family members grounded on constitutional, international (and compar-
ative!) law arguments: Rattigan v Chief Immigration Officer, [1995] 1 BCLR 1, 1994
SACLR LEXIS 255 (Zimbabwe SC).
79 A possible, new issue might have appeared recently, as the Hong Kong Court of First
Instance entertained a case between a Hong Kong plaintiff and a Mainland defendant
involving the arrest in Hong Kong of a search and rescue vessel belonging to the latter.
The defendant turned out to be an entity organic to the Chinese Government. The court
dismissed the defendants application to release the vessel, which was based on the doc-
trine of Crown immunity (Crown immunity refers to the immunity of the domestic gov-
ernment, while state immunity refers to foreign governments) on the ground that while
LEGAL HYBRIDITY IN HONG KONG AND MACAU 693
With these principles seeping in, it is reasonable to conclude that a
superimposition of Chinese general framework values is taking place,
however unchanged the SARs legal systems may look at a first glance
and despite more or less face-saving statements and lip service paid from
all institutional actors both in the SARs and in the Mainland (in fact, a
phenomenon more and more confined to Hong Kong local debate) on the
preservation of the SARs original legal traditions.80
F. The Unequal Duality of Vision
A well-known scholar who has researched the Hong Kong legal and
institutional environment over a long period of time expressed the view
that the Hong Kong basic lawto a significant extent a common law piece
of legislation due to its contents in relation to fundamental rights81is a
legal enactment meant more to keep the Hong Kong legal system securely
separated from the Chinese one, than to produce integration.82
Perhaps those statements reflect a common law point of view, and the
related normative approach to legal text. However, it is also to be consid-
ered that both basic laws are Chinese pieces of legislation: their mention-
ing of fundamental rights does not make them, when in action, common
law enactments more than the list of fundamental rights in the constitu-
tion of China makes it a common law constitution. It is also difficult to
consider the two basic laws as enactments hailing from the two different
legal traditions of the two SARs former colonial powers: they are almost
identical, enacted in Beijing by Mainland legislative authorities within
the framework of the Chinese constitution, for the two Chinese SARs. The
interpretive mechanisms applicable in the most sensitive cases, managed
by the appropriate Chinese authorities according to their legal institu-
tional and political system, also tend to confirm that fundamental truth.
It is also true, on the other hand, that the SARs courts will ordinarily
interpret their basic laws from below, according to their traditional
Western standards, as far as the case at hand has a local relevance.
Hong Kong courts will, moreover, continue to work according to common
the defendant had the right to claim immunity, it had in fact waived this right by not
pleading immunity in a timely manner (The Hua Tian Long (No 3), [2010] 3 HKC 557).
The case is currently under appeal; the interesting issue in the coming appellate deci-
sion will be related to whether a waiver of Crown immunity, which is possible under
common law, can co-exist with the PRCs absolute approach to state immunity following
Congo (CFA final decision), supra note 56.
80 See the Ng Ka Ling CFA clarification, supra note 37, and HKSAR, Right of Abode, su-
pra note 41.
81 Ghai, Intersection, supra note 22 at 371.
82 Ibid at 367.
694 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
law standards most of the time, when no basic law provision needs to be
interpreted in the case. So will Macau courts with their local version of
the Portuguese civil law, mutatis mutandis, though perhaps with not as
strong a resistance as displayed by the Hong Kong environment.
The relative autonomy of the two visions and legal environments (the
Mainlands and that of each SAR) in ordinary cases cannot exclude the ex-
istence of specific areas of the law or particular instances when the two
visions come in contact. This will happen more and more with the social
and economic integration of the SARs with the Mainland: pressure from
the top and resistance from below produce complex dynamics of inter-
action, negotiations, and adjustments. This situation has aptly been de-
scribed through the theoretical frame of a legally pluralist environment,
with China and the two regions playing the role of semi-autonomous so-
cial and legal fields.83
The two basic laws are the legal interface between these semi-
autonomous fields. They have a dual nature as Chinese pieces of legisla-
tion for two Chinese administrative territorial partitions, and as local
quasi-constitutions that guarantee the SARs previous legal environment.
They are used by local authorities as the primary source of their common
law (Hong Kong) or civil law (Macau) legal systems. The tension between
these two visions and related technical standards of interpretation and
application has previously been clearly pointed out.84 Still, that duality
is an unequal duality. The underlying struggle produces an increasingly
visible dominance of the one country element over the two systems
one,85 as demonstrated by the very different way the Hong Kong CFA
dealt with the Ng Ka Ling case in 1999 and the Congo case in 2011.86
The Chinese political-legal element, present and prevailing in the
basic law and its top-level interpretive organ and mechanism, may trans-
form the black-letter rules contained therein into a product that is inher-
ently flexible and fuzzy in meaning.87 Rules may become softer: guide-
line elements, to be used in finding syntheses at the end of dialectic pro-
cesses; directives on how to flexibly reconcile opposite tensions, admitting
variable solutions in individual cases. They may come to share to some
83 Cora Chan, Reconceptualising the Relation Between the Mainland Chinese Legal Sys-
tem and the Hong Kong Legal System (2011) 6:1 Asian Journal of Comparative Law 1.
84 Vallejos v Commissioner of Registration, 2010 HCAL 124 at paras 8-10 (CFI), online:
Legal Reference System
85 Denis Chang, The Imperatives of One Country, Two Systems: One Country Before Two
Systems? (2007) 37 Hong Kong LJ 351.
86 See above, section Legal Infiltrations, passim.
87 See generally Castellucci, Rule of Law, supra note 7.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 695
extent the nature of the basic policies (jbn fngzhn zhngc,
)88 the Chinese government undertook to follow in the joint
declarations and their annexes, most of which are largely reproduced in
the text of both basic laws.89
In the opinion of this author, the purpose of the basic laws is not just
that of isolating the SARs legal systems, as discernible in their black-
letter text from a common law normative perspective. Their purpose is al-
soor perhaps pre-eminently, from the functional Chinese rather than
the normative point of viewone of providing Mainland authorities with
steering capability over these systems. The Mainland authorities gain
that capacity by framing them within a cage of quasi-constitutional, but
still flexible, provisions they may interpret according to what they think
appropriate. The basic laws in action may thus produce some conver-
gence of the SARs over time towards a more Chinese societal model, ra-
ther than securing the immutability of the regions previous state of af-
fairs.
Western powers will not cry shame on these developments. As China
became a global political and economic superpower, British and Portu-
guese concerns about the Chinese socialist system being enforced in the
former colonial territoriesthe original reason leading to the Chinese un-
dertakings in the joint declarationshave lost much of the plausibility
they had in the 1980s. In addition, the two former powers actual capabil-
ity to intervene effectively, even if they wished to do so, is questionable.
IV. Delegalization: The Closer Economic Partnership Arrangement
Another example of hard superimposition of Chinese concepts, oper-
ational models, and mechanisms on both SARs legal systems is given by
88 Chang, supra note 85 at 354-57
fngzhn zhngc
() in both basic laws preamblestranslated in the English version of the
Hong Kong Basic Law as basic policies and in the Portuguese version of Macau as
polticas fundamentais). In Chinese that wording in fact adds a further element relat-
ed to the idea of policy or political directive (fngzhn, ) to the original words in
the joint declarationsjbn zhngc, , also translated as basic policies, pol-
ticas fundamentais.
(elaborating on jbn
89 Sino-British Joint Declaration, supra note 19; Sino-Portugese Joint Declaration, supra
note 19. It is certainly unusual how in those two international law instruments the
Chinese government undertook to list basic policies, with each instrument also pre-
senting an annex I in which the policies listed in the joint declarations are elaborated
upon by the Chinese government. The initial articles of both basic laws (General Prin-
ciples) reproduce more or less the basic policies agreed to in the joint declaration; the
elaborations contained in each annex I are the basis for many of the basic laws other
articles (HK Basic Law, supra note 18; Macau Basic Law, supra note 18).
696 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the provisions for dispute resolution between each SAR and the Mainland
within the Closer Economic Partnership Arrangement (CEPA) frame-
work. The CEPAs are two institutional arrangements concluded in 2003
between the Mainland and each SAR that create a tariff-free trade zone
and specific provisions to regulate it. The entire scheme is aimed at avoid-
ing problems related to having three separate WTO membershipsof the
two SARs, and of Mainland China after its accession in 2001which
could otherwise make the international WTO legal mechanisms applica-
ble to the relations between China, Hong Kong, and Macau, which cer-
tainly are not international.90
The disputes between the Mainland and the SARs on tariffs and trade,
according to the CEPA, shall be resolved through amicable negotiations,
with a bilateral steering committee producing consensual decisions.91
If the existence of alternatives to judicial mechanisms to solve econom-
ic and trade disputes is quite common worldwide, it is also true that pro-
visions for negotiations or mediation mechanisms never prevent, should
these alternatives fail, the ultimate recourse to adjudicatory mechanisms,
including judicial, quasi-judicial, and arbitral forms. The remarkable ele-
ment in the case of the CEPA is exactly this: no other way or remedy is
available. Neither the kind of adjudication implemented within the WTO,
nor any other kind, is permitted. This element is perhaps inevitable, given
the unequal relation between the parties. Differences are not adjudicated
in this very important Chinese economic environment: they are delegal-
ized instead and, ultimately, resolved politically.
This amounts to an application of a very traditional Asian and Chi-
nese approach in dispute resolution, also present in the classic socialist
model of resolution of differences between economic units. The scheme is
certainly distant from the idea of third-party adjudication inherent in the
Western concept of rule of law, which is based on the existence of certain
foreseeable rules enforced through a technical-legal mechanism featuring
a third party as the deciding body or official.
90 Wu, Integration, supra note 35 at 29-32.
91 China, Ministry of Commerce, Mainland and Hong Kong Closer Economic Partnership
Arrangement (29 June 2003), art 19, reprinted in (2003) 2 Chinese Journal of Interna-
tional Law 640, available online:
China, Ministry of Commerce, Mainland and Macao Closer Economic Partnership Ar-
rangement (17 October 2003), art 19 (unofficial English translation available online:
Integration, supra note 35 at 29-32.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 697
V. Hybridization: The Soft Way
A. Macau and Its Lower Resistance to Legal Infiltration from Mainland
China
The introduction of policies and legal doctrines in Hong Kong con-
sistent with those of the Mainland have required sensitive and controver-
sial interpretation of the territorys Basic Law by the NPCSC to overcome
the resistance of the Hong Kong legal community and its principle of stare
decisis.
Macaus civil law legal system, which is closer than a common law le-
gal system, in general structure and mechanisms, to the Chinese one,
proved more flexible, admitting lesser or no binding force for judicial prec-
edent.92 In Macau, this approach is associated with a high level of ob-
servance of the literal provisions of the statutory law, with a conservative
attitude and a low level of judicial activism. This rigid attitude seems to
be shared by courts in at least some of the former socialist jurisdictions of
Eastern Europe, and differs considerably from trends in Western legal
systems of continental tradition, where the rule-making role of the courts
is increasingly recognized.93
Another fact to be considered is that special legal procedures are es-
tablished by law in Macau to generate uniform judicial doctrines in local
courts, especially in criminal matters. They are subject to centralized con-
trol through mechanisms involving the territorys highest court and pros-
ecutor both for their development and modification, and to ensure that
92 Even the Tribunal de Ultima Instncia, the highest court in Macau, quoted Ren Da-
vids Les Grand Systmes and expressed the view that
[courts are] not bound by the rules they establish … if in a new decision the
judges apply a rule they had previously applied, this is not due to the author-
ity that rule acquired for the fact they have consecrated it; this rule has no
binding effect. … it is always possible a change in the case law without the
court being obliged to justify it. Case law neither threatens the framework
nor the very principles of the law. A case law rule only survives and is ap-
plied as far as the judgeseach judgeconsider it as a good one. At princi-
ples level it seems important to us that the judge is not transformed into a
legislator. This is what is sought in the Roman-German family …. (Tribunal
de Ultima Instncia case n 4/2001, printed in Boletim Oficial da Regio Ad-
ministrativa Especial de Macau, 1st series, number 32 of 2001, 924 at 938),
online: Macau SAR Courts Website
93 Ewoud Hondius, General Report in Hondius, supra note 22, 1 at 19-23.
698 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
policies adopted with those special procedures at the top of the judiciary
are consistently enforced throughout the court system.94
Changes in interpretation of statutory law are possible in Macau,95 but
they would probably result from a policy input rather than a purely legal
re-elaboration of legal rules. The absence of the stare decisis principle
made it much easier for the Macanese courts to smoothly implement poli-
cies and legal doctrines consistent with the new political environment af-
ter the handover to China. Besides showing a low degree of judicial activ-
ism, the courts of Macau can still intervene at a micro level if the political
input they receive so warrants, and offer far more flexibility than those of
Hong Kong. In fact, the Basic Law of Macau has never yet required an in-
terpretation by the NPCSC.
In a case not very different from Hong Kongs Ng Ka Ling, the Court
of Appeal in Macau enforced a piece of restrictive Macanese legislation
without any need to officially ask Beijing for assistance in interpreting the
Basic Law because pre-handover doctrines and precedents did not bind
the Macanese court.96. The court simply decided the case following a legal
reasoning consistent with the government policy of denying the spouse of
a foreign authorized resident the right to reside in the territory.97
B. General Differences Between the Two SARs
Had they adopted a more Western stance, the Macanese courts could
have declared the relevant legislation unconstitutional or invalid in the
above-mentioned case, as the Hong Kong CFA had done in 1999. The fact
that it did not do so is not merely due to the absence of the principle of
stare decisis. Even a superficial general observation of both SARs reveals
how Hong Kong has a more independent judiciary, legal profession, and
media system.98 Its political and legal environment is firmer in protecting
94 These mechanisms are described in Castellucci, Precedent, supra note 22.
95 It is remarkable how the Macanese judge quoted in TUI 2001 (supra note 92) put effort
in combining in a single, apparently innocent, phrase two rather opposing principles:
court decisions are not binding and can be departed from in subsequent cases; and the
one that the courts are however, at principles level, no law-makersthus being una-
ble to actively promote developments in the law. In fact, providing a justification and
legitimizing the possibility for the courts to behave more or less rigidly or flexiblyin
fact discretionally (without the court being obliged to justify at 938)according to the
needs of specific cases.
96 Ibid.
97 Tribunal de Segunda Instncia case n 82/2006, online: Macau SAR Courts Website
98 See e.g. Sonny Lo Shiu-Hing, The Politics of Article 23 Consultations in Macau,
online: The Hong Kong Democratic Foundation
LEGAL HYBRIDITY IN HONG KONG AND MACAU 699
individual rights vis–vis public interests. Hong Kong also has a larger
critical economic mass, a strong economy based on Western ideas, and a
higher attachment to Western liberal values in both its economy and soci-
ety. All this makes Hong Kong a less likely place for social, legal, and po-
litical experiments with a socialist or communitarian flavour. To some ex-
tent, Hong Kong remains able to withstand political pressure from the
Mainland. This ability generates complex political dynamics and occa-
sional tension.
Compared to Hong Kong, Macau has a relatively small local economy
with related local laws and currency. Its large gambling economy is oper-
ated on an offshore mode, so to speak, by a mostly non-Macanese elite.
The territorys economy is largely dependent on China, which can decide
whether to allow the Macanese economy to soar, or to be strangled, by a
simple change in its visa-issuing policy to Mainlanders travelling for lei-
sure.
Macaus main business operations and large Macau-related economic
or financial transactions are often negotiated, governed, litigated, and ar-
bitrated outside the territory. These activities occur especially in Hong
Kong, using its language, law, courts, arbitral institutions, and currency.99
Compared to Hong Kong, Macau generally offers less resistance to the
changes required by its reversion to the PRC. It offers a more homogene-
ous society with deep Chinese roots, smaller bargaining power, and great-
er legal flexibility vis–vis new governmental policies, whether intro-
duced through legislation, administration, or the judiciary. It also offers a
legal system more apt, in its language and technicalities, to introduce and
enforce more communitarian ideas. This aptness is also confirmed by the
technical and historical fact that European socialist countries legal sys-
tems developed well within, or as a ramification of, the civil law tradition,
with ancient relations to the Roman and Byzantine tradition and especial-
ly influenced, more recently, by the Pandectist legal thought.100
As a result, Macau is more likely to become a laboratory for several is-
sues related to the legal, political, and economic transition of both SARs: a
first, convenient bridgehead for later, soft infiltration or superimposition
99 The Macau Pataca is nowadays a purely local currency, not very welcome anymore even
for retail commerce in the bordering Mainland city of Zhuhailet alone in Hong Kong
or the rest of the world where it is almost unknown and not converted. Most significant-
ly, the Pataca is not even usable for gambling in Macanese casinos, where the Hong
Kong dollar is the preferred currency.
100 Antonio Gambaro & Rodolfo Sacco, Sistemi giuridici comparati (Turin: UTET, 1996) at
411-60; Gianmaria Ajani, Diritto dellEuropa orientale (Turin: UTET, 1996) ch 4.
700 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of Chinese values in Hong Kong that would be too controversial to be in-
troduced there abruptly.
C. Article 23 of the Basic Laws
A recent and important example of that role of Macau is given by leg-
islation on national security. This area falls within the competence of each
SAR, according to article 23 of their basic laws. Article 23 was introduced
in the basic laws as part of the central government policy in reaction to
the 1989 Tiananmen events to prevent the two SARs from becoming pos-
sible safe bases for activists of all sorts.101 Since the handover, Hong Kong
has avoided enacting such a law because part of the public fears it could
become a tool for restricting civil and political liberties. Considering the
Chinese approach to security and criminal laws, which feature a degree of
vagueness in their definitions of crimes, many in the SAR consider the
latitude to prosecute that this gives the government to be unacceptable.102
Political debate related to a bill on national security law in Hong Kong
culminated during 2003 in mass rallies and in the subsequent, and possi-
bly temporary, abandonment of the idea.103
More recently, after similar debates to those of Hong Kong in 2009,
Macau passed a national security law under article 23 of its Basic Law.104
A curious border incident followed.105 Macau was praised by the govern-
101 Hualing Fu, The National Security Factor: Putting Article 23 of the Basic Law in Per-
spective in Steve Tsang, ed, Judicial Independence and the Rule of Law in Hong Kong
(Hong Kong: Hong Kong University Press, 2001) 73.
102 Ibid at 76.
103 On the Hong Kong discourse on human rights, national security, and the implementa-
tion of article 23 in general, see Fu Hualing, Carol J Petersen & Simon NM Young, eds,
National Security and Fundamental Rights: Hong Kongs Article 23 Under Scrutiny
(Hong Kong: Hong Kong University Press, 2005); Simon NM Young, ed, Hong Kong
Basic Law Bibliography (Hong Kong: Hong Kong Law Journal, 2006); Johannes MM
Chan, Hong Kong Human Rights Bibliography (Hong Kong: Hong Kong Law Journal,
2006).
104 There is no literature yet on the promulgated Macanese law. Very interesting insights
on the legislative process are given in a report on the draft law prepared for the Macau
government during the public consultation period towards the end of 2008: Jorge Godi-
nho, The Regulation of Article 23 of the Macao Basic Law: A Commentary on the Draft
Law on Public Security (draft version 2, 28 November 2008), online: Social Science Re-
search Network
law is a piece of legislation designed at least in part to send a message of moderation to
the public (ibid at 21), with less restrictive provisions than the ones originally devised
in the Hong Kong proposals of some years ago, especially on the issue of liberty of asso-
ciations to operate in the territory (ibid at 19).
105 This incident, which occurred in March 2009, immediately after the entry into force of
the Macanese law, involved a prominent Hong Kong academic who had publicly ex-
LEGAL HYBRIDITY IN HONG KONG AND MACAU 701
ment of the PRC at the highest possible level for the enactment of this
piece of legislation. President Hu Jintao delivered a clear message of
praise that was probably a not-so-oblique message directed at Hong Kong
at least as much as it was directed at Macau. The occasion was President
Hus speech on the tenth anniversary of the Macau handover and founda-
tion of the Macau SAR:
First of all, it is imperative to have a full and correct understanding
and implementation of the one country, two systems principle,
[Hu] said, noting that the key is to realize the most extensive unity
under the banner of loving the motherland and loving Macao.
Hu noted that one country, two systems is a complete concept, with
one country closely linked with two system.
On the one hand, the existing social and economic system and the
way of life in Macao must be maintained, and on the other hand, the
sovereignty, territorial integrity and security of the country must be
safeguarded, and meanwhile, the socialist system practice in the
main body of the country must be respected, the president noted.
Hu said that it is imperative to safeguard the high degree of auton-
omy enjoyed by the Macao SAR and fully protect the master status
of the Macao compatriots, but it is also imperative to respect the
power endowed upon the central government by laws, and to firmly
oppose any external forces in their interference in Macaos affairs.
Early this year, the legislation of Article 23 of the Basic Law of the
Macao SAR passed smoothly, a move Hu said fully reflects the
strong sense of responsibility of the Government, Legislative Assem-
bly and people of all circles of the Macao SAR to safeguard national
security and interests.
The move also provides a strong guarantee for Macaos long-term
stability, said the president.
As long as the compatriots of Macao unite under the banner of lov-
ing the motherland and loving Macao, they will be able to lay a solid
political foundation for Macaos long-term prosperity and stability,
said Hu.106
The message is indeed very clear. Some political commentators think
that Hong Kong is now strongly expected to follow suit.107
pressed concerns in 2002 and 2003 about the Hong Kong draft article 23. Seeking to vis-
it Macau to participate in activities related to his work, he was denied access at the
border.
106 Xinhua, President Hu: Great Motherland Always a Strong Backing for HK, Macao
Xinhua (20 December 2009), online: Xinhuanet
107 Some deny any such possible influence of Macau developments on Hong Kong, consid-
ering that the two SARs are totally different, but this seems too simplistic a claim: the
Macau precedent may, at least, be a factor to be considered or that cannot be ignored
702 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introducing critical hard reforms in Macau allows an assessment of
their impact. It also turns them into political precedents for subsequent
reforms in Hong Kong as a part of a softer strategy for the latter SAR.
Chinas soaring economy, the growing economic flows between the PRC
and the SARs within the framework of the CEPA, and the integration of
local economies in the Pearl River Delta Region will probably do the rest,
making Hong Kongs Chinese soul emerge and prevail, perhaps faster
than many would expect.
D. Legal Education in Macau
More evidence of a softly managed convergence of the Macanese legal
system towards the Chinese one is available. A significant occurrence af-
ter the handover was the introduction in Macau of law degrees in Main-
land Chinese law. These degrees are issued locally and have, since 2006-
2007, produced a number of graduates who hold positions in the Macau
civil service that were previously reserved for holders of degrees in Portu-
guese or Macanese law.
A problem emerged when Chinese Law graduates started applying to
the local bar. The bar requires a law degree issued by the University of
Macau or a degree recognized in Macau.108 The holder of a different degree
was required to attend a one-year adaptation course in Macanese law and
then pass an exam administered by the Macau Lawyers Association,
which most failed, before being able to proceed with training and eventu-
ally try the bar exam.
The rule requiring a law degree issued in Macau has been interpret-
ed literally by applicants as allowing the holder of a law degree issued in
Macau to join the bar as trainees. Such applicants do not have to attend
the one-year course of adaptation to local law and then to undergo its final
exam administered by the Macau Lawyers Association. The government
when the time arrives for a second attempt to pass legislation in Hong Kong: Godinho,
supra note 104 at 4. See also Lo Shiu-hing, supra note 98. Several articles have also ap-
peared on the media in relation to the promulgation of the Macau law: see e.g., the re-
port from Hong Kong-based journalist Vaudine England, Macau Law a Bad Example
for Hong Kong BBC News (3 March 2009), online: BBC News
108 Regulamento do Acesso Advocacia [Regulation on Access to Advocacy] (Macao), Official
Bulletin, 2d Series, No 50/1999, art 4(1)(a), available online:
LEGAL HYBRIDITY IN HONG KONG AND MACAU 703
of the region has supported this interpretation to avoid discrimina-
tion.109
This literal and geographic meaning given by the government to the
words issued in Macau, irrespective of any systemic or contextual inter-
pretation, encountered strong opposition in the local bar, which was still
dominated by Portuguese and Portuguese-trained lawyers. One trainee,
having failed the adaptation courses final exam, sued the Macau Law-
yers Association in court to have his degree recognized as equivalent to a
Macau law degree. No Macau lawyer would take his defence, and he had
to apply to have counsel appointed ex officio. The case is still pending. The
solution, meanwhile, has been that the adaptation courses final exam has
been transformed into a mandatory exam for being admitted to the train-
ing for all graduates, including those holding a degree in Macau law.
Holders of Macau law degrees dont need to take the adaptation course,
but along with Chinese law and other law graduates they do have to pass
the exam.110
E. Cultural Changes
The legal community in Macau is transforming from being character-
ized by a strong Portuguese legal presence towards a more Chinese-
influenced body of judges, lawyers, and government officials. There is
pressure in Macauprobably based on the cultural and economic factors
already describedto diminish the use of Portuguese, which is spoken by
less than 3% of the local population, as the working language for business
and government in favour of Chinese and English. These two languages
happen to be the two official languages of Hong Kong, and the latter is in-
creasingly spoken in Macau.111
This transformation is significant for our discourse. The importance of
the use of the original legal languages of the mixing legal traditions, for
a mixed environment to exist and survive, has been stressed by several
109 Details pertaining to this case, which was quite sensitive in Macau, are not available in
any published source. The details provided above were obtained from personal conver-
sations I engaged in with members of the local legal community.
110 Once again, these details were obtained from personal conversations I engaged in with
members of the local legal community as they are not available in any published source.
111 Anecdotal elements only can be produced, so far, in support of this statement: it has
been reported in town that certain Macanese judges, knowledgeable about Portuguese
language, refuse to use it during proceedings. On the other side, English seems to be
used sometimes in the city courts. It is interesting to observe, however, how an official
report of a Portuguese scholar to the Macanese government has not been written in
Portuguese (like Chinese, an official language of the Macau SAR) but in English: Godi-
nho, supra note 104.
704 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
mixed jurisdictions scholars.112 In fact, elements of common law and Hong
Kong law increasingly infiltrate local Macau business practices and legal
education.113
These developments correspond, at least at an initial stage, to another
pattern identified by Palmer concerning the importance of the dominant
economy in determining the adoption of economic and business laws in a
mixed context.114
As graduates of both Macanese-Portuguese and Chinese backgrounds
become increasingly formally equalized, it will become more obvious that
the Macau legal system is hybridizing, with its law importing elements
from Mainland law, mostly on the institutional side, and from Hong Kong
law, in relation to the business side. It will also reflect the career interests
of the students community and the diminutive political and economic
weight of Macau vis–vis the Mainland and Hong Kong. Some kind of hy-
brid greater Chinese national law, as contrasted with the specific law of
the SAR, may ultimately emerge as the subject of higher education in Ma-
cauas it happened mutatis mutandis with US universities in the differ-
ent states and jurisdictionsand develop as both cause and effect of legal
hybridization.
F. The Administrative Formant
Legal convergence is also a product of administrative practices, such
as when directives issued by the central government are directly enforced
in the SARs as binding rules, instead of allowing Macau to produce locally
elaborated by-rules that enforce local laws.115 This practice corresponds to
112 Palmer, Introduction, supra note 9 at 78; William Tetley, Mixed Jurisdic-
tions: Common Law vs Civil Law (Codified and Uncodified) Tetley’s Maritime & Admi-
ralty Law at 49-50, online: McGill University Faculty of Law
(also appearing
in (1999) 4:3 Unif L Rev ns 591 & 4:4 Unif L Rev ns 877; (2000) 60 La L Rev 677; (2003)
3 Private Law Review 99 (in Chinese)) (also citing Esin Orc, Mixed and Mixing Sys-
tems: A Conceptual Search in Esin Orc, Elspeth Attwooll & Sean Coyle, eds, Studies
in Legal Systems: Mixed and Mixing (The Hague: Kluwer Law International, 1996) 335
at 349-50).
[Tetley, Mixed Jurisdictions]
113 It happened to me in 2003 when I was requested by the Faculty of Business of the Uni-
versity of Macau to prepare syllabi for courses on (Macanese) commercial law based on
an American handbook of business law.
114 Palmer, Introduction, supra note 9 at 78.
115 See e.g. Esclarecimentos do Comit Permanente da Assembleia Popular Nacional sobre
Algumas Questes relativas Aplicao da Lei da Nacionalidade da Republica Popular
da China na Regio Administrativa Especial de Macau [Clarifications of the Standing
Committee of the National Peoples Congress in Relation to the Application of the Na-
tionality Law of the Peoples Republic of China in the Macau Special Administrative
LEGAL HYBRIDITY IN HONG KONG AND MACAU 705
another Chinese model, in contrast to the Western approach, that fea-
tures vertical political and government procedures that are more depend-
ent on hierarchy than they are required to be according to the law alone.
The PRC is a huge, diverse, and multi-ethnic country. Its legal system
is not monolithic. The central government and the Chinese Communist
Party (CCP) are always discharging a general governance role vis–vis all
different forms of local governments. These include provinces and munici-
palities under the direct control of the central government; autonomous
regions, prefectures, and counties characterized by Regional Ethnic Au-
tonomies (REAs) that imply some degree of legislative autonomy116 (Tibet
and Xingjiang being the two better known examples of regions of that
kind); and Special Economic Zones (SEZs), where since the late 1970s for-
eign investment and market mechanisms have been tested with a view to
eventual countrywide application.
The Chinese legal system is a macro-tool for improving central author-
ities institutional supervision capability117 over a very fragmented and di-
versified peripheral apparatus of local governments and normative or-
gans.118 The central governments capability is enhanced by the coupled
political supervision of the CCP.119 This fragmented administrative envi-
ronment, balanced by an increasingly effective centralized institutional
and political governance, might represent a viable model for managing a
rapid, potentially explosive transition. China is moving from an immense-
ly populated orthodox communist country to a socialist one with a soaring
market economy that is actively connected to the globalized world. The
Region], 6th Sess, Standing Committee of the 9th NPC, 29 December 1998 (Portuguese
translation reprinted in Macau Official Bulletin), 1st Series, No 1/1999 at 392, available
online:
ment that also has a direct normative function, directly and expressly referred to by the
Macanese government in the subsequent Regulamento para a Emisso dos Documentos
de Viagem da Regio Administrativa Especial de Macau [Regulation on the Issuing of
Travel Documents of Macau SAR] (Official Bulletin, 1st Series, No 1/1999 at 276, avail-
able online:
1999the day after the handover of the territory from Portugal to Chinain order to
define the status of Chinese citizens. Article 14.2 of abovementioned regulation reads:
Chinese citizens … are those possessing Chinese nationality pursuant to the Law on
Nationality of the Peoples Republic of China and to the Esclarecimentos [NPCSC Clari-
fications] [translated by author].
116 See Chunli Xia, Autonomous Legislative Power in Regional Ethnic Autonomy of the
Peoples Republic of China: The Law and the Reality in Oliveira & Cardinal, supra
note 20, 541.
117 See Lok Wai Kin, The Relationship Between Central and Local Governments Under
the Unitary State System of China in Oliveira & Cardinal, supra note 20, 527.
118 See e.g. Xia, supra note 116 at 543-54.
119 Ibid at 554-61.
706 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
approach described above allows it to preserve the unity and the stability
of the country while allowing the gradual introduction of general reforms
following local tests that assessed their impact.120
The two Chinese SARs just add a new type of territorial partition,
with specific administrative and legal features, to the already complex
Chinese administrative-legal environment.121 As the SARs become more
and more sinicized, their Western characteristics will likely become less
obvious and pre-eminent. These characteristics will be reduced to peculi-
ar historic conditions to which special Chinese laws and principles are
applied. Their very existence as SARs, meanwhile, allows the Mainland to
test and assess the functioning of the OCTS model. The Taiwanese are
closely monitoring this process to assess possible modes of relation with
the Mainland and to determine their potential degree of autonomy in case
of reunification, within an OCTS framework or otherwise.
From the Chinese legal point of view, a SAR is another kind of special
normative body lodged within the main body of the general Chinese legal
system. Like an SEZ, an REA, or a specific private relation governed by a
foreign law according to the rules of private international law, it will be a
semi-closed legal environment based on geographic, thematic, ethnic, or
personal factors allowed by the general legal system. Its internal logic and
rules will be different from the general ones, but will still be subject to the
limitations and interventions imposed by the general socialist frame.
VI. Testing the Chinese SARs Case against Palmers Analytical Grid on
Legal Mixity and Refining the Grid
Palmers three-test grid mentioned above in the introductory chap-
ternamely the obvious amount of mixity, the critical areas, and the
120 The model, incidentally, seems to be looked at by North Korea, which in some moments
of cautious openingin the early 1990s, and since late 1990s until around 2003
showed interest towards experimenting with economic and administrative reforms:
SEZs and SARs modelled on the homologous Chinese territorial entities have been cre-
ated. The SARs feature Basic Laws and even (the Siniju SAR) a flag resembling those
of the Chinese SARs. The Siniju SAR seems to have been de facto abandoned as an in-
stitutional project, while the Kaesng and Kmgangsan ones still operate, if subject to
the ups-and-down of political relations with South Koreathe main investor there.
Sources in English are scattered over the internet, including US and South Korean
agencies and research entities, as well as unofficial and wiki-format web resources.
Combining several web researches, a reasonably accurate online description of current
administrative divisions of the Democratic Peoples Republic of Korea seems to be
available at: Administrative Divisions of North Korea, online: eNotes
121 See generally Lok Wai Kin, supra note 117.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 707
subjective element tests122provides a useful way to analyze the Chinese
SARs situation.
A. The Test for Obvious Amount
There is an increasing presence of elements of the Chinese socialist
legal tradition in the legal systems and environments of the two SARs.
The question is whether the first test, as described by Palmer, namely a
test seeking the presence of two different traditions in obviously relevant
amounts, is relevant. Is this test merely quantitative?
The example of the Chinese SARs suggests that Chinese rules and
principles are being introduced there with very little amount of formal
legal reforms. They have not, as described in the previous sections of this
essay, been instituted through a variety of means. Principles, interpreta-
tions, and rules have started seeping into the system, occupying key junc-
tions and coming to discharge systemic functions. This process occurred
without producing an immediately detectable presence of Chinese law in
the SARs, at least not in an obviously relevant amount. The two SARs
will probably be substantially sinicized before 2047 or 2049, at the end of
the transitional period provided for in the joint declarations and basic
laws.123 However, a substantial part of the law hailing from the previously
dominant tradition will remain relatively unchanged: many or most legal
devices will remain valuable as tested and effective tools of governance, at
least at the micro level and for most private matters.
It is submitted here that it is also a matter of ways and quality of the
legal substance being introduced. In combination with this informal pro-
cess, a few, selective legal reforms in key areas can change the entire sys-
tem. Hybridity may come not just from mixing or juxtaposing several dif-
ferent technical apparatuses of norms within a single jurisdiction, but also
from the superimposition or infiltration of new political, constitutional,
institutional, or social frames and values. The process will be like new
software in old hardware, or like new ghosts in an old machine. As Twin-
ing pointed out:
(iv) Diffusion may take place through informal interaction without
involving formal adoption or enactment.
122 Palmer, Introduction, supra note 9 at 7-11.
123 See Sino-British Joint Declaration, supra note 19; see also Sino-Portuguese Joint Decla-
ration, supra note 19.
708 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
(v) Legal rules and concepts are not the only or even the main ob-
jects of diffusion.124
In a theoretical extreme, the absence of any formal legislative change
may still coexist with the generation of a different legal system if new
ways to interpret, apply, and enforce the law are introduced in a perfectly
untouched legal machinery. The entire concept of rule of law may
change, in fact, based on the different degrees of hardness or softness a
system may recognize in its set of formal legal rules, allowing more heter-
ogeneous influences and normative elements to play a role in the govern-
ance process. This refinement in the first test implies a closer connection
of the first test for obvious amounts with the other tests, the one for
critical areas of the law occupied by the dominant system, and the one for
the subjective element in the legal community.
B. The Test of Critical Features
The second test, about the introduction of critical elements of the su-
perimposing tradition over the previous one, can also be generalized and
refined. Critical features are not necessarily limited to those identified
by Palmer for common-law-on-civil-law mixes, related to the judiciary, its
organization, and the value attached to its products. Critical features of
the dominant tradition, and thus of the resulting hybrid, may in fact con-
sist of a relatively small amount of formal law, or may just consist of in-
terpretive principles, political-institutional-administrative devices, and
other contextual elements. These elements may initially be almost invisi-
ble in enactments and law-in-the-books.125
In a Chinese-on-Western superimposition, the Chinese tradition based
on the prevalence of the rule of politics126 plays a critical reforming role.
124 These are two of the conclusive warnings of William Twining, Diffusion of Law: A
Global Perspective (2004) 49 J Legal Pluralism 1 at 34 [Twining, Diffusion]. A not-
too-distant concept of transfusin has been adopted as far back as the 1960s by Ro-
man law scholar Augustn Daz Bialet, in Argentina, to describe how Roman Law con-
cepts and principles have seeped into Latin American codified private laws, creating a
legal continuum between Roman law, medieval ius commune and those modern legal
systems; a romanist approach thus becoming the preferred method for interpretation of
law there, instead of those hailing from German and European positivist doctrines of
the XIX century; Augustn Daz Bialet, La Recepcin del Derecho Romano en Amrica
Hispana (1960) 99 La Ley; La transfusion du droit romain (1971) Revue Internatio-
nale des Droit de lAntiquit 421; La transfusin del Derecho Romano en la Argentina
(1978) 5 Studi Sassaresi (Diritto Romano, zcodificazioni e unit del sistema giuridico la-
tinoamericano) at XVI-XIX.
125 Twining, Diffusion supra note 124.
126 See Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the Worlds Legal
Systems, (1997) 45:1 Am J Comp L 5 (previously published in Italian: Verso un tripar-
LEGAL HYBRIDITY IN HONG KONG AND MACAU 709
Politics, institutions, administration, and public law will all be im-
portantin that order. The infiltration of new ideas into old legal ma-
chinery through political, administrative, economic, and cultural dynam-
ics is the apparent, current strategy of China in Hong Kong and Macau.
The mixing process is leaving the legal machinery apparently un-
changed, or almost so.127 Hong Kong could someday see a common law ap-
paratus or machinery enforcing socialist substantive principles, using
stare decisis as a vehicle to perpetuate their judicial enforcement.
A lesson learned from the data analyzed above is how the dominant
legal traditionoften coupled with a related political forcesuperimposes
its systemic frame and its critical elements (which are not necessarily
legal in a strictly modern Western sense), using its peculiar tools, on an-
other tradition. The different developments in the two SARs, however,
suggest that the specific features of each receiving system also play a role
in determining the superimposition strategies, and the hybrid outcomes of
the process.
Enlarging the second test to include all possible legal and non-legal
critical elements allows it to be applied to the Chinese SARs legal
changes. It can also be used to explain a number of other historical super-
impositions:
1) Palmer found that common-on-civil-law superimpositions have al-
ways featured conspicuous legal and institutional reforms in relation to
the role of the judiciary. However, a mixed jurisdiction with a reversed
civil-on-common-law pattern such as the one in the common law provinces
of Cameroon displays a superimposition carried out mostly through con-
stitutional changes, legislative enactments, and governmental institu-
tions. Reforms of the court system do not seem to have played a major role
in the Cameroonian superimposition strategy.128 The countrys Supreme
tizione non eurocentrica dei sistemi giuridici in Scintillae Iuris Studi in onore di Gi-
no Gorla (Milan: Giuffr, 1994)). The author proposes a (non-eurocentric) classifica-
tion of the worlds legal systems based on three main societal models: the one based on
the rule of law, the one based on the rule of tradition, and the one based on the rule
of politics.
127 These conclusions, with an express reference to politics only, are shared by Ghai, In-
tersection, supra note 22 at 401-05. Interestingly, the two published versions of this ar-
ticle feature slight differences: the dubitative final conclusion of the author regarding
the Chinese systems triumph over Hong Kong common law in the 2007 version (ibid at
405) has been replaced by a purely affirmative one in the 2009 version (Oliveira & Car-
dinal, supra note 20 at 49).
128 On Cameroons specific mixity, see Stella Cziment, Cameroon: A Mixed Jurisdiction?
A Critical Examination of Cameroons Legal System Through the Perspective of the
Nine Interim Conclusions of Worldwide Mixed Jurisdictions (2009) 2:2 Civil Law
Commentaries 1, online: Tulane University Law School
710 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Court operates according to the standards of its continental tradition.
However, little attention is paid at the central institutional level to local
courts of the common law provinces, which largely continue to operate in
a traditional common law way within a civil law country. It seems to be a
weak superimposition so far, and has not been very successful in bringing
about much legal integration between the two parts of the country.129 In
an African context, perhaps, the unifying forces and the related strategies
and tools are different. Significantly, an important role is played by poli-
tics in arbitrating the interests of the two separate communities.130
2) Modern concepts of law emerged at the end of the eighteenth centu-
ry and were superimposed over the previous state of legal affairs in the
United States and in France. In both cases, the most significant superim-
posing role was played by the elements critical in the relevant dominant
ideology (judicial review in the United States, legislation in France).131 It
should be clear that the continental ius commune and the continental
post-Napoleonic civil law represent two very different models and histori-
cal legal experiences. The codification process on the European continent
amounted, in fact, to a superimposition by legislative means of a new le-
gal ideology, and related systems, over the pre-existing legal environment
based on the ius commune. This strategy worked well in most continental
jurisdictions. It has not, however, happened at all in places such as An-
dorra and San Marino.132 In Latin America, the ius commune substratum
resisted and survived the superimposition process to some extent, result-
ing in what we could perhaps label as mixed ius commune-codified ju-
risdictionsor at least jurisdictions where we can identify ius commune
pockets in those codified legal systems. Scholarly law still plays an origi-
nal, normative role, and courts exercise an inherent jurisdictional power,
at least in some areas of the law.133 To add complexity, many of those Lat-
129 Ibid, especially at 13-17, 23-25, 27-28. However, a two-year period of training, mostly
based on civil law, in the countrys judiciary school in the capital city Yaound has been
introduced since 1972, for both civil law and common law judges before being appointed
to the bench (ibid at 15).
130 Ibid at 11.
131 Ghai, Intersection, supra note 22 at 366-67.
132 Aquilino Iglesia Ferreirs, ed, Actes del I simposi jurdic Principat dAndorra/
Repblica de San Marino. El ius commune com a dret vigent: lexperincia judicial
dAndorra i San Marino (Andorra: Institut dEstudis Andorrans, 1994).
133 See Ignazio Castellucci, Sistema jurdico latinoamericano (Turin: Giappichelli, 2011)
[Castellucci, Sistema jurdico latinoamericano].
LEGAL HYBRIDITY IN HONG KONG AND MACAU 711
in American jurisdictions feature federal, constitutional, and institutional
models heavily influenced by those of the United States.134
3) In many other contextstoo many, in fact, to elaborate upon in this
paperthe superimposition seems to have taken place mostly through
whatever element was paramount in the dominant tradition. This ele-
ment was not necessarily the court system and case law. Scholarship was
one of the main factors of the expansion of Roman law in the provinces of
the Roman Empire, the later expansion of civil law developed from Roman
texts and canon law in medieval Europe, and their eventual mixing into
one single legal system of ius commune.135 The economy and business
practices combined with the scholarly law of ius commune to form the
medieval lex mercatoria. Something similar might be happening today
with transnational business law.136 Religious-legal scholarship seems to
have played an important role in the original expansion of Islam and sha-
ria, as well as in the recent Islamicization of some modern legal systems,
including Afghanistan under the Taliban rule and Iran.137 Confucian cul-
ture and doctrines and the Chinese administrative model were the main
elements of the Chinese imperial model transplanted to Korea, Japan, Vi-
etnam, and other Asian countries during the era roughly corresponding to
the Western middle ages.138 Political doctrines and, especially, political
ways within a socialist legal environment today characterize, as we have
seen, the evolution and expansion of the Chinese model into the SARs, Vi-
etnam, and North Korea.
4) Customary laws, often infused with religious elements, can also be
the dominant element driving legal change, obliterating previously exist-
ing statutory laws and producing new, legal hybrid products. This ele-
ment dominates in places where competing institutions are weak, such as
134 See Jorge L Esquirol, Writing the Law of Latin American (2009) 40:3 Geo Wash Intl
L Rev 693.
135 Francesco Calasso, Medio evo del diritto (Milan: Giuffr, 1954) at 391-407.
136 See Michael Joachim Bonell, An International Restatement of Contract Law: The Uni-
droit Principles of International Commercial Contracts, 3d ed (Ardsley: Transnational,
2005); see also Francesco Galgano, Lex mercatoria, 5th ed (Bologna: Il Mulino, 2010).
137 See Massimo Papa, Afghanistan: tradizione giuridica e ricostruzione dellordinamento
tra ara, consuetudini e diritto statale (Turin: Giappichelli, 2006) [Papa, Afghanistan];
see also Michael Axworthy, Empire of the Mind: A History of Iran (London: Hurst, 2007)
at 265-98.
138 Geoffrey MacCormack, The Spirit of Traditional Chinese Law (Athens, Ga: University
of Georgia Press, 1996); Chongko Choi, East Asian Jurisprudence (Seoul: National Uni-
versity Press, 2009); Chun Shin-yong, ed, Legal System of Korea (Seoul: Si-sa-yong-o-sa,
1982); Yosiyuki Noda, Introduction au droit japonais (Paris: Dalloz, 1966); Michael B
Hooker, A Concise Legal History of South-East Asia (Oxford: Clarendon, 1978) at 73 ff;
Glenn, supra note 11, ch 9.
712 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
in post-Taliban rural areas of Afghanistan139 where institutional com-
petitors are explicitly withdrawing, as it happened for family law govern-
ing Muslim communities in the western and southern lowlands of Eritrea
during the War of Independence and after achieving independence from
Ethiopia;140 and when competitors are altogether absent, as in stateless
areas of Somalia.141
The crucial elements, whether strictly legal in the Western sense or
not, of the relevant dominant social-legal tradition invariably seem to be
the ones carrying out a significant part of the legal change. The elements
achieve this change by interacting with the receiving environment and its
political, legal, social, and economic features, and by adapting their strat-
egies accordingly.
C. The Test of Subjective Perception of Mixity
The third test concerning the subjective perception of mixity is im-
portant to the discussion of the PRC and its SARs. The new political-
institutional setting; the basic laws and their interpretive mechanisms;
economic and cultural changes; a more Chinese legal training of lawyers
and civil servants; government-to-government immediately enforceable
administrative directives from Beijing: all are obvious avenues for the
Mainland to alter the local legal environment and superimpose a different
set of values on the system.
From the subjective point of view, for the purposes of our mixity test,
all mentioned avenues amount, in Glenns terms,142 to powerful tradition-
changing or tradition-generating moves from policymakers that add to the
more general cultural changes in both SARs towards a more Chinese soci-
etal model.
139 See Papa, Afghanistan, supra note 137.
140 Eritrean Peoples Liberation Fronts Proclamation n 2 of 1991, enforcing basic legal re-
forms of pre-existing Ethiopian laws in the liberated areas of Eritrea, still in force to-
day, prescribes that state laws should not apply to family and inheritance relations of
Muslim Eritrean citizenswith no further detail or explanation. This left Islamic and
local customary rules to become the only existing ones in the mentioned domains of law.
See Ignazio Castellucci, Eclectic Legal Reforms in Africa and the Challenges of Reality:
The Case of Eritrean Family Law, in CC Nweze, ed, Contemporary Issues of Interna-
tional and Comparative Law: Essays in Honour of Christian Nwachukwu Okeke (Lake
Mary, FL: Vandeplas, 2009) 599 at 620 ff.
141 I entertained endless conversations on Africa, stateless Somalia and on the little-
known, little-recognized Somaliland state with African law scholar Salvatore Mancuso.
See Salvatore Mancuso, Short Notes on Legal Pluralism(s) in Somaliland, Proceedings
of the Juris Diversitas Conference (Paper delivered at the Swiss Institute of Compara-
tive Law, Lausanne, October 2011) [forthcoming].
142 Glenn, supra note 11, ch 1, 2.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 713
The distance between Hong Kongs legal system and the Mainlands is
certainly greater than that between Macaus and the Mainlands due to
the specific traditions and circumstances of both SARs. The higher re-
sistance of the Hong Kong community to the infiltration of ideas from the
Mainland makes its process of legal hybridization slower than in Macau.
However, cultural changes in the legal environment are also taking place
in Hong Kong and within its legal community, which is no longer, or not
solely, one of old times English barristers. As the prestige of China in-
creases along with its political power in the region, new generations of
proudly Chinese judges, lawyers, and jurists will increasingly populate
Hong Kong courts, universities, and government offices.
An early indication of this shift might be how the rigid stance initially
shown by the CFA in the Ng Ka Ling case softened greatly, following the
first constitutional crisis, the outcome of that case.143 A full recognition by
the CFA of the existing superimposition was made twelve years later in
the Congo (CFA final decision),144 as expected by the government, by
many in the legal community, and by other observers. The CFA did not
decide the Congo case unanimously. However, a majority vote in the
bench is certainly a common law way to solve the issue, with a legalized
solution becoming a hard rule through stare decisis. A Chinese law prin-
ciple disputed in Hong Kong was thus introduced in the system through a
common law mechanism.
Another interesting piece of evidence of the changing perceptions and
subjective stances in the legal community is given by a 2000 decision of
the Hong Kong CFA. In that decision, the court remarked very strongly
about the one China principle and how Taiwanese courts are non-
recognized and under the de facto albeit unlawful control of a usurper
government.145 The case was a simple request of exequatur of a Taiwan-
ese bankruptcy order, which the CFA ruled to be recognized as not being
inimical to the sovereigns interests or otherwise contrary to public poli-
cy.146 Those strong remarkswhich attracted bitter Taiwanese com-
ments147were perhaps unnecessary from a purely legal point of view.
143 Ng ka Ling CFA clarification, supra note 37.
144 Supra note 56.
145 Chen Li Hung v Ting Lei Miao (1999), [2000] 1 HKLRD 252 at 263, [2000] 1 HKC 461
(CFA).
146 Ibid. Adding, however, that it should be clearly understood that giving effect to the
Taiwanese bankruptcy order does not involve recognizing the usurper regime or courts
in Taiwan (ibid).
147 Chien-Huei Wu, Mutual Recognition and Enforcement of Arbitral Awards among Tai-
wan, China, Hong Kong and Macau: Regulatory Framework and Judicial Development
(2010) 3:1 Contemporary Asia Arbitration Journal 65 at 86.
714 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
However, they clearly indicate the perception of Hong Kong legal profes-
sionals who are increasingly aware that they are operating in a common
law legal system that is a part of a larger Chinese system.
According to all the elements mentioned, the third subjective ele-
ment test in Palmers grid has certainly been passed.
D. Refinement of Palmers Grid
Palmers grid is useful in guiding the assessment of the growing mix-
ity of the SARs legal environments. At the end of this analysis, however,
it is the opinion of this author that the grid can be refined to better suit
research on legal hybridity beyond the classic mixed jurisdictions.
Of the first two tests (obvious amount and critical features), the
latter only seems to be related to a crucial element. A positive answer to it
may still qualify a situation as hybrid, provided the third subjective el-
ement testcertainly confirmed in its fundamental importanceis satis-
fied. On the other hand, the fulfillment of any purely quantitative con-
dition is hardly imaginable without mechanisms allowing the introduction
of new legal substance in the system. Additionally, the scope of observa-
tion for the purposes of the critical features test should be enlarged to
include non-legal elements.
I propose the following possible reading for this tool, so revised: Once a
relevant community of believers in a new, non-monolithic legal envi-
ronment comes into existence in a given jurisdiction, whatever the reason,
the presence of appropriate devices at critical junctions of the system is
necessary and sufficient to produce hybridity. The relevant governing au-
thorities or legal community may then activate said devices any time they
find it convenient, abandoning previous mechanisms and legal sources.
The subjective element and critical features, coming into existence in
either order, seem to be two conditions necessary to start a process of hy-
bridization. It may then take time before a quantitative equilibrium be-
tween two different, sizable parts of the system becomes visible, if it ever
does, resulting in a Palmerian type of mixity (i.e. only when the super-
imposition is neither total, nor totally rejected, nor of a type producing dif-
fused hybridity rather than two discrete areas of the law with different
characteristics). The obvious amount test would just be a gauge, then,
providing information on how long or how successful the superimposition
has been, and thus how far the hybridization has progressed.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 715
VII. Testing the Tools for Research on Mixity Against China: More
Lessons to be Drawn
A. Modern Mixed Jurisdictions
Classical mixed jurisdictions studies have largely been confined to
studying systems with historical superimpositions that occurred decades
or even centuries ago. These systems were already firmly established
since the inception of mixity studies. As a result, the importance at-
tached to the different mixing processes that occurred in those mixed
jurisdictions was perhaps smaller than deserved. The focus has instead
been on the actual mixed features of those jurisdictions and the common
elements that set them apart from both civil law and common law sys-
tems and place them in the middle of the two related traditions to form a
special group: a family, if we so like.
In the Chinese developments described above, the process of mixing
can be observed live. This process should become an extremely interest-
ing and valuable field of study for scholars of mixed jurisdictions, similar
to how an ongoing eruption observed live should be of much interest for a
volcanologist instead of, or in addition to, cutting cross-sections or extract-
ing core samples to observe the cold, consolidated, and stratified lavic ma-
terials of events that occurred long ago.
The above analysis might suggest that even for the classical mixed
jurisdictions, political action and policy measures, whether transformed
into legal enactments or not, and other soft methods could have played a
significant role during the mixing phase that is no longer as evident to
legal scholars today. Even if the pillars of the resulting superimposition
have invariably been, in the event, the ones identified by Palmer (public
laws and institutions, framework concepts, and the judiciary), the political
decisions made, policy actions implemented, and pressures exercised by
the dominant power to obtain the mixed environmentincluding the
growth of the subjective elementinteracted with the relevant context.
These soft elements have certainly differed according to the different
contexts. These differences certainly contributed to shape the mixed sys-
tems that later emerged.148
Classical mixed systems have not been mixed since the Big Bang.
Mixity status was not attained one day through the mere superimposi-
tion of statutes and legal institutions, like turning a switch. Some tension,
148 This has also been noted by Alain Levasseur, Two Hundred (200) Years of Civil Law in
English: Louisianas Lonely Destiny in Cashin Ritaine, Donlan & Sychold, supra note
5, 35 at 35-36.
716 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
some kind of struggle, took place. For example, in Qubec, William Tetley
described the reaction after 1763 of the civil law community receiving the
common law superimposition as a boycott149 (see also Louisiana after
1803).150 Cameroons mixed provinces still seem to display little conver-
sation between their common law tradition and the superimposed civil
law institutional frame.151 South Africa and the Philippines have also
posed specific problems warranting specific responses during their respec-
tive transitions due to local specificities and plural legal environments.152
However, straight Western legal systems (i.e. the Western modern
legal systems excepting the classical mixed ones) have also not been
monoliths since the Big Bang. Both common law and Roman law/canon
law/ius commune originated and developed from and through different
mixes of legal experiences. Most of the derived legal systems experienced
moments of relative hybridity and homogeneity.153
Transitional phases could fruitfully be researched to allow a more
complete appreciation of the many facets of the resulting legal hybrids,
including classical mixed systems and also including the many systems
now perceived as monolithic.154 This methodological expansion would like-
ly bring about innovation in substantive knowledge due to the wider con-
sideration given to factors and formants that thus far have not been the
focus. The expansion would also put mixed studies in a wider historical
perspective.155 This proposal will make the research on legal hybridity
much more complex than it has been so far when limited to classical
mixed jurisdictions. Sense must be made of a wide array of contextual so-
cietal data and events, including historical, political, economic, cultural,
149 John EC Brierley & Roderick A Macdonald, Quebec Civil Law: An Introduction to Que-
bec Private Law (Toronto: Montgomery Publications, 1993) at 15 cited in William Tet-
ley, Mixed Jurisdictions, supra note 112 at 15.
150 Apparently in a more tranquil way than in Qubec: see Levasseur, supra note 148 at
37-39.
151 Cziment, supra note 128.
152 Christa Rautenbach, Deep Legal Pluralism in South Africa: Judicial Accommodations
of Non-State Law (2010) 60 J Legal Pluralism 143; Justin Holbrook, Legal Hybridity
in the Philippines: Lessons in Legal Pluralism from Mindanao and the Sulu Archipela-
go (2010) 18:2 Tul J Intl & Comp L 403.
153 Supporting elements and a similar opinion are given by Sen Patrick Donlan, Remem-
bering: Legal Hybridity and Legal History (2011) 2:1 Comp L Rev 1, especially the es-
says Conclusion at 34-35 [Donlan, Remembering].
154 Ibid.
155 Ibid.
LEGAL HYBRIDITY IN HONG KONG AND MACAU 717
and religious events, to assess their impact on the relevant legal environ-
ment.156
The strong or critical elements of the dominant system, as well as
those of the one receiving the superimposition, shall be identified in each
particular hybridization process, along with their systemic effects, to bet-
ter appreciate the dynamics of change and the resulting products. Meth-
odologies shall, by necessity, go beyond purely technical-legal methods,
and might include the analysis of all formative elements157 guiding or
characterizing the superimposition process. The methodologies will pay
greater attention to phenomena of legal pluralism and may even resort to
quantitative methods of social sciences.
B. Importing Foreign Legal Models
Another thing we can learn about legal hybridity from observing to-
days China, with its reforms establishing a market economy and its rapid
legal changes, is that hybridity might be the result not of an external su-
perimposition but also of a sovereign choice of importing foreign legal
models. Arguably, this happened earlier with Israel, which became mixed
at an early stage in its legal history as a state without any superimposi-
tion from outside.158 It could also be the case of the United States, with its
broad constitutional provisions, multiple layers of legislation, civil codes,
Restatements, the Uniform Commercial Code, and law schools teaching a
sort of ius commune americanum, even if it is not yet acknowledged by lo-
cal jurists.159 Other processes generating hybridity can be identified in in-
tra-national processes of rapprochement among originally separate enti-
ties, as is happening in China, as well as in supra-national processes, as is
happening in the European Union.
More importantly, it is also possible that the natural rigidity of our
categories and minds makes us see mixity or hybridity where we simp-
ly have the ongoing formation of a new system. China and its SARs could
simply be seen as a complex entity with multiple, intertwined evolution-
156 Keeping in mind Twinings analysis of complexity the legal diffusion process, and his fi-
nal warnings about the need to go beyond the research on horizontal transplants of
formal elements, to consider multi-directional diffusion and a wider array of societal in-
fluences as affecting the process: Twining, Diffusion, supra note 124.
157 See Sacco, Legal Formants I, supra note 13; Sacco, Legal Formants II, supra note
13.
158 Palmer, Third Family, supra note 3 at 448-68.
159 AT von Mehren, Law in the United States: A General Comparative View (Deventer:
Kluer Law and Taxation, 1987) [Mehren, Law in the US]; AT von Mehren, The US Le-
gal System: Between the Common Law and Civil Law Traditions (Rome: Centro di studi
e ricerche di diritto comparato e straniero, 2001).
718 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ary paths, including a large process of legal reforms, with internal cross-
fertilization as well as the reception of a variety of different foreign mod-
els. Nothing comes from an absolute vacuum; we use what we already
know to try to define and describe new things. After all, no jurisdiction
has ever produced internally all the products needed for its development.
C. Subjective Perception
A key intuition of Palmer would be pushed forward as a result of this
proposed approach. Mixity would be very much about subjective percep-
tion, the third test in his grid, in relation to major changes of legal or in-
stitutional setting. Tetleys light remark about a mixed jurisdiction being
a place where debate over the subject takes place would not seem so
paradoxical.160 Are all systems generally perceived as mixed simply sys-
tems in transition, like most or all others are or have been? Are mixed
systems merely depicted at a particular stage of that transition, however
slow it might be?
Western legal history is a history of ramifications, interactions, con-
taminations, and intertwined evolutionary paths. If several Western legal
systems have been monolithic at some stage, most of them have also been
hybrid at some other stage.161 Continental ius commune and the English
classical common law had significant historical connections. Long before
modern convergence between the two main Western legal traditions, the
existence of significant common structural and operational elements has
been demonstrated, including a common-law-style approach to case law in
the work of several continental high courts before the codification era,162
and the importance of Roman/civil and canon scholarly laws as compo-
nents of the English common law tradition.163
Codified law has been superimposed on ius commune in most places
on the European continent; common law has been superimposed on conti-
nental jurisdictions of ius commune, Roman-Dutch law, and codified civil
law in different places. But even common law can be identified either as
160 Mixed Jurisdictions, supra note 112 at 2; see also Donlan, An Introduction, supra
note 5 at 15-16.
161 Donlan, Remembering, supra note 153.
162 See e.g. the several essays collected in Gino Gorla, Diritto Comparato e Diritto Comune
Europeo (Milan: Giuffr, 1981), especially chapter 20, 540ff. The phenomenon survived
the codification era in Latin America: see Castellucci, Sistema jurdico latinoamericano,
supra note 133.
163 See e.g. Sen Patrick Donlan, Our laws are as mixed as our language: Commentaries
on the Laws of England and Ireland, 1704-1804 (2008) 12:1 EJCL, online:
LEGAL HYBRIDITY IN HONG KONG AND MACAU 719
the English classical system or as the more recent American one. Some
superimposition of the latter model over the former in the early days of
the United States existence cannot be ruled out in objective terms. It is
perhaps the idea or perception of continuity that makes American law
seem closer to the idea of a common law jurisdiction than to the paradigm
of a mixed one.164
Future legal historians may, with hindsight, perceive complex, rami-
fied, and intertwined Western transitions. We can only seebeing in the
middle of the changestatic systems or very slow changes, with moments
of faster or acute change identified with superimpositions or additions of
new elements. These points of view are different subjective readings of ob-
jectively similar situations. The current categorization of classic mixes
as the third (Western) family could simply be due, after all, to the histor-
ical accident of a more conspicuous mixity of that group of jurisdictions
at the specific time of observation by modern comparative law, with its
inherent taxonomic urge. This categorization occurred roughly when Ren
Davids picture was taken.165
Might Louisiana and Scotland some day cease to be considered mixed
jurisdictions except for historical purposes? Could their mixity become,
in the long term, a purely subjective, distorted perception as they, objec-
tively, become increasingly indistinguishable from their larger national
tradition?166 This possibility assumes, of course, that the latter do not
start showing clear and acknowledged elements of mixity. The only
chance of maintaining either an eternal state of mixity or an eternal
state of monolithism, mutatis mutandis, would be if an immutable bal-
ance of the systems components, where the two traditions are duly re-
spected and kept in equilibrium, so that one does not overshadow and
obliterate the other, is achieved.167 This balance seems to be a difficult
exercise in the long term in many or most mixed systems, especially
with relation to their objective features. Most systems will display chang-
es, whether towards monolithism or towards different mixes. It is, per-
haps, more likely that a strong mixed sentiment or subjective perception
within the relevant community will be the element most capable of resist-
ing or counterbalancing objective changes in reality, for some time at
least.
164 Mehren, Law in the US, supra note 159.
165 Ren David, Les grands systmes de droit contemporains (Paris: Dalloz, 1964).
166 See e.g., in relation to the case of Scots law, Tetley, Mixed Jurisdictions, supra note
112 at 13, citing Robin Evans-Jones, Receptions of Law, Mixed Legal Systems and the
Myth of the Genius of Scots Private Law (1998) 114 Law Q Rev 228.
167 Tetley, Mixed Jurisdictions, supra note 112 at 3.
720 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
D. New Categories
Meanwhile, if comparative science is to remain at the forefront of legal
developments, new categories should be developed and tested beyond Da-
vids picture, and especially beyond the relevance of the features identified
as salient in that picture. Those features are more and more common
nowadays in all or almost all Western systems.168 Mixity studies demon-
strate how the usual comparative taxonomies have lost much of their util-
ity. Still, Davids family pictures continue to rule comparative lawyers
from the terminal phase of their lives, if not from their graves. Its contin-
ued influence is demonstrated by the difficulties in overcoming the com-
mon law-civil law taxonomic divide as the main comparative classification
tool.
Todays legal world offers an immense diversity to be analyzed and
classified. Political and economic models, societal organization patterns,
public law, models of general governance and coordination of multiple
normative fields of all kinds, models based on geo-legal considerations,
and models of interaction among states and between state and supra-
state or non-state entities must all be considered. As classical legal mix-
ity increasingly overlaps with the general idea of Western law and its
most avant-garde developments, new analytical tools should be developed
by comparative lawyers to manage the sheer diversity of the legal world
in the twenty-first century. New categories must be considered that will
work for a while until they too, in due course, start failing to properly ac-
commodate a number of emerging hybrids.
168 The discourse on the convergence of both Western legal traditions of civil law and
common law into one hybrid Western tradition is acquired knowledge for comparative
lawyers: see e.g. John Henry Merryman, On the Convergence (and Divergence) of the
Civil and the Common Law (1981) 17:2 Stan J Intl L 357; Ren David, Existe-t-il un
droit occidental? in Kurt H Nadelmann, Arthur T von Mehren & John N Hazard, eds,
XXth Century Comparative and Conflicts Law: Legal Essays in Honor of Hessel E
Yntema (Leiden: A W Sijthoff, 1961) 56.
