Canada-U.S. Law Institute Managing Director & CUSLI-Nexus Chairman
Anyone who believes Canadian politics is boring wasn't watching last Wednesday's Quebec elections. After electing Parti Québécois leader Pauline Marois to Premier, she narrowly escaped an anti-separatist's assassin's bullet. Just another chapter in the big book that is the Canada-Quebec relationship. Meanwhile, on the other side of the world, tensions have arisen again in the Hong Kong-Mainland China relationship, as people flooded the streets to protest PRC efforts to introduce patriotism classes in city schools' curricula. Interestingly, Hong Kong also faced an election significant to its autonomy: last Sunday the city for the first time held a public poll to elect over half the Hong Kong legislature. While the pro-China faction won in the overall result, pro-democracy candidates still showed considerable popular support and hold enough seats to veto any changes to Hong Kong's constitution.
In many ways Quebec and Hong Kong are quite similar. Both were transferred from one government to another. Both have subcultures distinguishable from their national governments'. Each has its own languages, food styles, customs, etc. Both have at times shown strong self-identification while at other times national pride. Moreover, both are economic powerhouses in their own right that benefit their greater societies. Many in China hope that Hong Kong's transition to the PRC will go smoothly and someday serve as a model for integrating other territories.
If Confucius were alive, today perhaps he would say "[s]tudy [Quebec's] past, if you would divine [Hong Kong's] future." In Quebec's case, tensions have ebbed and waned ever since its capitulation to the British following the Seven Year's War. British common law stipulated that the laws and customs of Quebec should remain in tact. But shortly after its transfer, the British King tried to "Anglicize" the newly acquired territory by implementing British common law and preventing Catholics from holding office. This led to a swift negative reaction which forced a British "retreat": the restoration of Quebec's customs and laws. Since then the national government has allowed Quebec to maintain its civil law system. Even so, Quebec's relationship with greater Canada has ebbed and waned as national interests conflict with provincial purvey.
The story of Hong Kong's transition from British to Chinese rule is much shorter but already exhibits similarities to Quebec's story. In 1997, the Chinese officially regained control of Hong Kong in terms with the Sino-British Joint Declaration, which among many things preserved the city's capitalist system and way of life for fifty years. This requirement also covered Hong Kong's British style legal system, which comprised the city's law and governance. By 1997, this legal structure became a part of Hong Kong's identity, inspiring aspirations for democracy.
For sure, the PRC has been much more careful with Hong Kong than Britain was when it obtained Quebec. China has, at least arguably, acted in accordance with the agreement and international law. But adherence to the law is often not enough. For instance, in FG Hemisphere v. DRC it appears the Hong Kong Supreme Court was influenced by a PRC letter that urged an outcome consistent with PRC policy. In FG Hemisphere, the issue was whether a government's assets were protected by sovereign immunity. Hong Kong common law provided no immunity from suit whereas the PRC granted absolute immunity. In its holding the Court justified its deference to the PRC by referencing the Hong Kong Basic Law, which granted the PRC authority over international matters. While there have been reports about the PRC influencing Hong Kong court decisions, this ruling came with little notice. Meanwhile, when the mainland attempts to influence Hong Kong's social issues, for instance, by mandating schools to teach to teach Chinese patriotism, the reaction is stronger. These interventions while legal, are often met by larger public dismay.
While Sunday's election has ended, the details of Hong Kong's planned transition to full democratic rule in 2017 still need to be hammered out. So, in the meantime, Hong Kong and China may find value in looking to the lessons of Canada?
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