'One Country, Two Systems' – Learning from the Past

Jaakko Husa

University of Helsinki

States and territories are certainly not eternal; they change when times change. Old rulers and rules are replaced with new ones, thus, countries and territories have to adapt to new rulers and new sets of rules. This story is only too well-known from the history of colonialism and its legacy. It is the reason why so many geographically distant legal systems have similarities with the main European traditions – civil law and common law. Having said that, sometimes old legal rules are not changed even though new rulers come from a different legal tradition. Why throw away something if it works?

In fact, as constitutional history shows, outdated rules may fit more than well in the new model of governance. In these cases, inherited old rules may prove to be a handy tool for governing. It may be the case that old rules provide more flexibility for ruling than more modern rules. For example, old rules may impose fewer obstacles to, and constraints on, the use of emergency powers and other out-of-the-ordinary methods. Surprisingly, perhaps, we can see this phenomenon in two very different contexts: Finland’s past and Hong Kong’s present.

Finland during the Russian period, and Hong Kong today, offer an interesting historical comparison that tells us something about the phenomenon of governing with inherited outdated rules. The question is, however, does it make much sense to compare the Grand Duchy of Finland (1809-1917) and the Hong Kong Special Administrative Region of the People's Republic of China (established in 1997). Moreover, is there something we can actually learn from such a comparison?

When it comes to comparative research, it has been a common saying that you should not compare apples and oranges. Obviously, Finland in the 1800s and early 1900s, and Hong Kong today are very different. However, there are constitutional commonalities that make comparison possible. Finland was, and Hong Kong is, a part of a much bigger state and Finland had, and Hong Kong has, strong elements of autonomy, although the final say (for example external relations, security policy, choosing the local leader) was and is elsewhere – in St. Petersburg or Beijing.

Because of Gustavus III, Finland’s constitutional order lagged behind developments elsewhere in Europe in the early 1800s. The Gustavian Form of Government (1772) provided for a very loose and monarch-oriented model for governance and, thus, when Finland was annexed to Russia in 1809 the Russian Emperor had no reason to alter the frame of governance. In the Act of Assurance of 1809, the Emperor promised Finland that it could keep – among other things – its constitution and legal system, its language, and religion: “We promise to maintain all these benefits and laws firm and unshakeable in their full force”. Basically, it was promised that the Emperor would govern Finland according to its existing Swedish laws. In other words, this was a kind of “one country, two systems” solution although, of course, this particular expression was not used.

Later, the winds changed in Russia and Russification became the governmental policy. This meant that the Russian Empire sought to limit the special status of the Grand Duchy of Finland. Moreover, Russia seemed keen to end Finland’s autonomy and cultural uniqueness during years 1899–1905 and 1908–1917. Importantly, it was not only Finland, but other areas of the Empire were also affected by the attempt to abolish the autonomy and cultural distinctiveness of non-Russian minorities within the empire. It does not require a genius to compare Finland back then and Hong Kong today, although any comparison must acknowledge the different stories behind the respective “one country, two systems” constructions.

Hong Kong became a British Crown Colony for more than 150 years after China ceded Hong Kong Island to Britain in 1842. In 1898, China leased the area north of Kowloon to the British for 99 years. In 1982, talks between China and the United Kingdom began concerning the future of Hong Kong, leading to the signing of the Joint Declaration in 1984 affirming Chinese sovereignty over Hong Kong. In 1985, the Hong Kong Act provided for the ending of British sovereignty and jurisdiction over Hong Kong. From 1997, Hong Kong has held the status of a Special Administrative Region. The Hong Kong Basic Law, often described as a “mini-Constitution”, provides in its Preamble that “under the principle of ‘one country, two systems’, the socialist system and policies will not be practised in Hong Kong”. To simplify a great deal, this is also a kind of an Act of Assurance by the People’s Republic of China.

The “one country, two systems” principle was crafted under the rulership of Deng Xiaoping to deal with Hong Kong and Macao, and (potentially also) Taiwan. In the mainland view, Hong Kong was freed from colonial rule and it returned to its motherland. However, the legal systems of Hong Kong and mainland China are culturally different: common law and socialist civil law. We may argue that, in particular, views on the role of law and lawyers in a society, and their relation to the state differ greatly, as they did in the autonomous Finland. In any case, what we can say is that historical comparisons may show surprising similarities when it comes to governing and law in a situation where there is one country but two systems.

During the periods of Russification in the Grand Duchy of Finland, the Russian Empire benefited from Swedish system that allowed for lots of freedom in governing. What happened in practice was that the inherited “two systems” diminished and the “one country” grew stronger. Old Swedish constitutional frames were filled with new Russian legislation. One of the key defences of Finns was reliance on the old Swedish rules in a legalistic manner. In practice, this meant protecting the Nordic legal culture and administrative system against unwanted Russian intrusions with formalistic and legalistic arguments. In Hong Kong there is no comparable legalism, however, the thick notion of the rule of law is frequently discussed under the umbrella of “one country, two systems” by Hong Kong lawyers. The mainland, on the other hand, argues for a thinner notion of the rule of law. In both cases, reliance on law offers a way to argue against the expansion of “one country” and, instead, to underline the significance of “two systems”.

In light of the above, what happened in the Grand Duchy seems pertinent when analysing comparatively the situation in Special Administrative Region today. Now, Finland gained its independence because of the Russian revolutions in 1917. Is there a lesson for today’s Hong Kong? If there is, it is a sobering one because it tells that for a small autonomous region as a part of an “empire” the only way out seems to be through revolution in the main country. However, there is absolutely nothing that would give us reason to expect anything like that to happen in the case of Hong Kong. Accordingly, Hong Kong’s best bet seems to be to hold on to the “one country, two systems” principle and keep it alive with close connections to the common law world and countries relying on the thick notion of the rule of law. Much depends on Hong Kong’s legal profession and legal academia in this regard, as it did in the Grand Duchy of Finland.

Jaakko Husa is Professor in Law and Globalisation at the University of Helsinki.

Suggested citation: Jaakko Husa, “'One Country, Two Systems' – Learning from the Past” IACL-IADC Blog (26 November 2019), https://blog-iacl-aidc.org/2019-posts/2019/11/26/one-country-two-systems-learning-from-the-past