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Murdoch University Electronic Journal of Law |
| Author: | Mason Hills |
| Issue: | Volume 1, Number 2 (May 1994) |
1. Introduction
This paper will analyse the clash of ideology and governmental philosophy
created by the integration of China and Hong Kong. That is, the
combination of a developed Western legal system in Hong Kong and a
developing legal system in China. The argument of my paper is in Hong
Kong the Rule of Law is necessary to promote stability and certainty. As
one of the world's largest financial markets Hong Kong requires certainty
and predictability of the law to maintain confidence in the operation
and effectiveness of those markets. Additionally, lack of confidence will
lead to human and other infrastructure resources leaving Hong Kong.
Further, one of the aims of the Joint Declaration was to maintain the
Hong Kong society. In my submission, without the Rule of Law it will be
difficult to maintain this society as it has internalised many of the
West's concepts about certainty and individuality, requiring the Rule of
Law.
There are two possible sources of abuse of the Rule of Law. First, the
Chief Executive is accountable to the People's Republic of China (PRC),
and is only sanctionable for actual breaches of the law but not for the
method of putting into effect the Chief Executive's policies. Second, is
the possibility of disregard of the Basic Law altogether.
Democracy is not an absolute guarantee of the Rule of Law but it will
strengthen it. The democratic reforms in the Basic Law are insufficient.
First, the pace of democratic reform is too slow. It is not until 2011
that democratic elections to the whole Legislative Council (Legco) will
be possible and this will only be after two thirds of the Legco pass a
bill requiring democratic elections. There is also no guarantee of direct
elections. Second, appointment of the Chief Executive is by the PRC -
there is no provision for direct election.
The approach of this paper is to define the Rule of Law, and analyse the
Hong Kong society to decide if the Rule of Law is necessary. There will
be an analysis of historical and cultural influences to determine to what
extent the PRC adheres to the Rule of Law and how this will impact on
Hong Kong. I will then determine what, if any, guarantees there are on
the Rule of Law. Finally, I will argue democracy is a guarantee on the
Rule of Law and determine what are the current obstacles to democracy.
2. The Rule of Law
2.1 What is the Rule of Law?
The law should be clearly and publicly laid down so people can plan their
lives accordingly(1) . Specific laws must be guided by general rules to
enhance the predicitability of the law. The emphasis of the Rule of Law
is on being able to conduct one's life without being frustrated by
arbitriness or unpredictability of government(2). At the heart of this definition
is a respect for the autonomy and dignity of the individual to be able to
choose the options they wish.
This definition sees the Rule of Law as a principle of institutional
morality. It does not deny the discretion of government authorities but
subjects implementation of the result of this discretion to control(3). A
criticism of this definition is it is too formal - it does not say who
should make the law or anything about fundamental rights(4). However, this
criticism is about the content of the law rather than a principle
controlling governmental action(5). Jowell argues it is an institutional
attitude requiring the internalisation of certain values(6). Arguably,
many of the current officials in Hong Kong have internalised this value,
however, the position after 1997 is not so clear(7).
There are two aspects of the Rule of Law that are important(8). First,
the law should rule the people and the people should obey the law.
Second, the law must be capable of being obeyed. Hence, the law must be
capable of being ascertained and guiding people's behaviour.
Some argue the Rule of Law should contain some congruence with social
values to prevent disrespect for the law and pressures for change in the
law(9). Another suggested requirement is impersonality and absence of
favour or domination of certain classes or individuals(10). The
International Commission of Jurists (ICJ) also argues the Rule of Law
depends upon effective government capable of maintaining law and
order(11). However, these are principles of good government and are not necessarily
part of the Rule of Law.
2.2 Elements of The Rule of Law
One formulation of the elements of the Rule of Law is(12):
- laws should be open,
prospective and clear;
- laws should be stable;
- general rules should guide
particular rules;
- independence of the
judiciary;
- natural justice;
- review power of the courts;
- access to the courts;
- discretion of crime
prevention agencies not to pervert the law.
2.3 Justifications of the Rule of Law
The first justification of the Rule of Law is it prevents the use of
arbitrary power. It obliges government to rule only with laws(13). The
second justification is it protects individual freedom(14). Law affects
human behaviour by affecting people's options. Disregard of the Rule of
Law will affect people's ability to choose options and make it impossible
for them to plan the future. Adherence to the Rule of Law allows law to influence
people's behaviour but it accepts people as autonomous and rational.
People are still able to choose options they will take, the law merely
affects the availbility of those options. Therefore, the Rule of Law
provides a legal basis for the respect of human dignity.
Note, the use of personal freedoms here is not political freedoms in the
sense of minimisation of government interference in personal freedom.
However, it is the freedom to make decisions as to which options will be
chosen. For example, it enables the citizen to know what the laws are so
they can choose options not resulting in breach of those laws.
However, the Rule of Law is only a prima facie value of any legal system
and some argue there are competing values overriding it(15). Two examples
of departure from the Rule of Law in a modern society are: first, laws
are meant to be promulgated so every member of society knows what they
are, however, in a modern complex society such as Hong Kong it would be
difficult for any one citizen to know what legislation applies to them at
any one time; secondly laws should be intelligible so as to be able to
guide people's behaviour, but there has to be a balance between
intelligibility and precision.
2.4 Textual Analysis I - The Rule of Law and the Basic Law
Article 25 of the Basic Law provides "all Hong Kong residents shall
be equal before the law" and Article 28 provides no Hong Kong
resident shall be subjected to arbitrary or unlawful arrest, detention,
imprisonment, or search. Similar provisions to Articles 25 and 28 of the
Basic Law exist in the Chinese constitution in Articles 5, 33 and 37 and
these have not prevented the PRC government from abusing the Rule of Law.
Article 35 of the Basic Law provides all citizens can institute legal
proceedings in the courts against the executive. Article 85 provides for
the independence of the judiciary. Article 73 gives the legislature the
ability to remove the Chief Executive if he or she breaches the law.
However, the Legco, Chief Exectuive or the judiciary are not accountable
to the people at least until 2007 when there is provision under Annex I
for selection of the Chief Executive by universal sufferage.
The Basic Law protects the "common law"(16). Many elements of the
common law will protect the Rule of Law, particularly stare decisi as
judge made law will adhere to known general rules. However, this does not
extend to the other organs of government - the executive and legislature.
For example, the accountability of the Chief Executive is to the whole
region and the PRC government(17). Further, the Legco is not accountable
to the region until after 2011. The Legco could enact retrospective
legislation that would offend against the Rule of Law.
Although it is possible to sanction the Chief Executive for breaches of
the law this does not mean he or she must adhere to the Rule of Law. For
example, the Chief Executive could institute policies that do not adhere
to the Rule of Law because they are not open and therefore the citizen
only knows of them when they are breached. This type of action will also effect
the stability of the system. Note, many of the procedures that prevent
the Governor from abusing his or her position are conventions that are
carried over from British constitutional practice. The Basic Law does not
include these and hence, on the face of the document, these will not
limit the Chief Executive.
Finally, although Article 39 of the Basic Law provides for the implementation
of the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, the Basic
Law is only an internal statute of the PRC and the PRC is not a signatory
to these conventions. Therefore, it is difficult to see how enforcement of
these covenants will occur.
2.5 The Bill of Rights and the Rule of Law
The problem with relying solely upon the Bill of Rights as securing
adherence to the Rule of Law is that there is no entrenchment of the Bill
of Rights after 1997. Therefore, in my submission some further checks and
balances should be in place before the arrival of 1997.
2.6 The Constitutional Position of Hong Kong and Chinese Constitutional
Practice
The Basic Law of the Hong Kong SAR is a statute of the National Peoples
Congress of the PRC. As such, it is subject to the PRC Constitution(18).
The Chinese regularly amend their Constitution or disregard it totally as
it is subject to the party, and this does not augur well for the status
of the HKSAR and the Basic Law(19). Further, even if there is an
amendment to the Basic Law to include more general protection of the Rule
of Law it is only words on paper(20). There must be a more substantial
guarantee to the Rule of Law, and in my submission, democracy is this
guarantee.
2.7 Necessity of The Rule of Law in Hong Kong
The Rule of Law maintains the stability of the system as people will know
when and where the law will be breached. Stability is also necessary for
the financial markets of Hong Kong to operate effectively because any
slight change in government policy or law can result in large capital
inflows or outflows instantaneously under modern financial market
conditions(21). Further, a lack of confidence in the Hong Kong system
will result in those factors of production that are mobile to leave the
economy reducing the ability for the economy to be prosperous. The PRC
sincerely wants to maintain the prosperity of the colony, however,
without a guarantee on certainty the ability for the economy to continue
to prosper is unlikely(22).
In Hong Kong, adherence to the Rule of Law would enhance stability and
certainty particularly in a period with potential for uncertainty. Both
the Chinese and British governments have attempted to adhere to the Rule
of Law by promulgating both the Joint Declaration and the Basic Law well
in advance. However, one must question the Chinese conception and
commitment to the Rule of Law.
2.8 Critisicms of The Rule of Law
Many of the current criticisms of the Rule of Law are a repeat of the
battle between the Common Law lawyers and the Monarchy in the thirteenth
century(23). That is, the tension between the rule of power and the Rule
of Law. The Critical Legal Studies (CLS) movement argues for the
elimination of law and the use of power to reform society. By this
process the CLS school removes the safeguards on tyranny and anarchy that
the common lawyers have spent many centuries building(24).
This is particularly important in this comparative perspective. China has
a system the CLS argue for - one dominated by power rather than law. The Cultural Revolution and Tiananmen illustrate
the potential for the abuse of power without the external check of the
Rule of Law(25). The abuses of the Cultural Revolution lead many to argue
for a more strict adherence to the Rule of Law(26). Tiananmen illustrates
the current potential for abuse of power. That is why the Rule of Law
is a necessity - it checks the abuse of power and allows the individual
some dignity and freedom.
Some argue the Rule of Law misses the social relationships that are a
part of our society(27). However, the law exists so when social relationships
breakdown the citizen has a system to rely upon(28). This is also
important in the context of a Hong Kong system undergoing a change of
government - the citizens need to be sure they can fall back on the law
when social relationships breakdown.
3. Chinese-Confucianism-Communism and British-Liberalism: An Irreconcilable
Conflict
Although the Rule of Law does not necessarily require a liberal society,
it is a hallmark of all liberal societies(29). The Rule of Law respects
the dignity and autonomy of the individual. A liberal society takes as
its starting point the individual. The Confucian and Communist ideology
also allow for the dignity of the individual, however they do not allow
for the concept of individual autonomy(30). The concept of certainty
in the law and treating individuals as autonomous is an inherent aspect
of liberal philosophy requiring the Rule of Law. One of the stated aims
of the Basic Law is to maintain the Hong Kong society(31). In my
submission, without the Rule of Law such a liberal system will not
survive.
After 1997 the PRC regime will have difficulty dealing with the Hong Kong
conception of the individual. We will have to see how the future judges
the ability of the British-Liberal society to withstand the
Communist-Confucianist influence, however in my submission it is
difficult to see how these two societies will live side by side. There is
an irreconcilable conflict between the 'egotism' of liberal theory and
the 'communitarinism' of socialism(32). The relative size of Hong Kong
and China also opens up the potential for Hong Kong to be overrun. In my submission,
to maintain this society the Rule of Law should be instituted.
This section of my paper will analyse the different governmental legal
and societal philosophies of Hong Kong and China. Some argue that a
comparison of Socialist and Capitalist legal systems is impossible for
two reasons(33). First, theoretically in a Capitalist system law cannot
be seen independently from its social function and as an instrument of class
suppression(34). Second, both economically and socially the socialist
countries are so different any comparison of their systems would be
meaningless. However, both systems strive to meet the same or similar
needs(35). It is only when the factual needs of both systems are
different comparison is impossible. In this case the need being met is
certainty and stability for the economies and individuals.
3.1 Confucianist-Communism
The traditional source of power in the Confucianist state was the
Emperor(36). The Emperor would develop and promulgate the rules and
regulations governing the people. The basis of these laws was
cosmological speculation. The administration would have the power of
interpretation and application. There was no formal judicial function -
it was merely an arm of the administration. Further, manner and custom
would govern the five social relationships and Confucian philosophy did
not theorise these relationships(37). Hence, the Chinese did not come
up with the concept of individual rights but rather emphasised the
dominance of the relationships.
The Confucian 'li' would govern by organic concepts of ethics and
propriety(38). Confucian philosophy has a fundamental opposition to a
fixed set of rules with rigid universal application to all people with
equal force(39). The Emperor had an absolute right to rule and people
were under an absolute obligation to obey(40). There was no concept of
individual rights or government being limited by law(41). Hence, there
was no concept of Rule of Law(42). The modern Chinese state
under Communism is a reflection of the traditional Chinese state(43). The
National People's Congress (NPC) promulgates the laws, as did the
Emperor. The government has responsibility for the application of the
laws along with the courts. Neither of these institutions have any
independent power as they are subordinate to the party leadership. The basis
of laws, instead of cosmological thought, is Marxism- Leninism and Mao
Zedong Thought. In my submission, much of what people consider new in
China is inherently 'old'.
It is arguable that to some extent the advent of Communism has eliminated
Confucianism. Many of the principles are in conflict. The Communists have
redefined the li to some extent - however, the general philosophy still
survives(44). Confucianism is a continuing and strong influence upon
social interaction and is still the dominant philosophy(45).
In traditional socialist theory law is seen merely as an extension of the
system of ownership that determines the mode of production - it is an
integral part of the political system(46). In China there has been an elimination
of the system of private ownership, and public ownership is the basis of
the law(47). Accompanying individual rights are corresponding duties(48).
The communal ownership of property and the duties of the individual
illustrate the communitarinism of the Chinese legal system. Hence, the
leadership imposes laws on the people to regulate behaviour to achieve
modernisation in accordance with socialist ideology(49). For one party to
maintain control of the poltical system whole areas of political
activity must be considered beyond the control of the law(50). Further,
some arbitiness must exist to enforce the party's monopoly in the
poltical system. The law is then seen as an expression of the party's
poltical program and can not be used as a check upon the party's exercise
of power. Hence, the Chinese conception of the Rule of Law must be
questioned.
During the cultural revolution Mao called for a period of lawlessness and
for the destruction of "bourgeois" law(51). It was also
dangerous to have an association with the legal system. Only recently
China has renewed its interest in law because of pressure from foreign
investors(52). However, it will be a long time until the necessary
attitude for the Rule of Law to limit government action.
One argument is the PRC will adhere to the Rule of Law in Hong Kong to
promote the reunification of Taiwan(53). However, it is unclear to what
extent the process adopted in Hong Kong is going to be effective in
Taiwan as there are many differences between the two systems, not least
of which is the existence of a democracy in Taiwan that will ensure the
Rule of Law(54).
3.2 British-Liberalism
Hong Kong however, has internalised many of the values of a British liberal
society(55). First, the political system does not favour any one
particular interest(56). Second, the economic system is capitalist that
has at its heart the idea of competition of free individuals(57).
Ownership of the means of production is private(58). There is also the
lack of any positive duties upon the people. In Hong Kong, under British rule,
adherence to the Rule of Law occurs with the local Legco and application
of British statues according to well-known common law principles.
Confucian aspects have also added to the success of Hong Kong. For
example the traditional Confucian values of thrift and hard work have
combined with the liberal free market approach to create one of the most
successful economies of the world. As Rabuska notes, if Hong Kong and
China enjoy the same growth rates until 1997 when China regains
soverignty the living standards in Hong Kong will be more than twenty
times higher than China(59).
3.4 Comparison
However, at many places the liberal philosophy of governance clashes with
PRC philosophy of governance. At the heart of a liberal society is the
individual. However, at the heart of the Confucian state is a system of
relationships. Further, the liberal ideology clashes with the socialist
ideology. The Chinese system emphasises the communitarinsim of the system
- public ownership and positive duties on the citizenry. The Hong Kong
system encourages private ownership and does not impose positive duties
on citizens.
In my submission the Rule of Law is necessary in Hong Kong to provide
certainty for the citizens. However, as can be seen from the above
analysis there is no guarantee that the PRC government will adhere to the
Rule of Law. The imprisonment of Wang
Juntao and his subsequent appeals to the Supreme People's Court is an
example of the Chinese government's abuses of the Rule of Law(60).
Further, the concept of The Rule of Law is inherently opposed to
Confucian concepts of governance. Ethics and propriety govern the people
rather than a known system of fixed laws and rules.
4. Democracy
4.1 Definitional Issues
There are various definitions of democracy. For example, there could be
direct democracy where the people make direct choices on policy
matters(61). There are indirect democracies where the people choose
representatives to make decisions for them. Usually, there is an election
to choose the representatives. The two advantages of elections are,
first, the people chosen will advance the interests of the electors.
Second, elections will ensure the representatives will act consistently
with stated policies. One view for the safeguarding of Hong Kong autonomy
after 1997 is to promote this form of democracy so that the political
authority rests with the Hong Kong people rather than a few who could
easily be subject to Beijing manipulation(62).
There are potentially multiple models of democracy(63). The type of
democracy in its specific application is not important in the context of
this paper. The element of importance is the people having an avenue to
criticise government and give a political protest through their vote.
The form of election in the PRC illustrates the problem of different
definitions of democracy(64). In the PRC there are elections of certain
party officials, however the Communist Party of China (CPC) chooses the
candidates. Further, the party issues the policies to be pursued.
Therefore, there is no choice of policies and hence no accountability as
there are no alternatives to make the party accountable for its actions.
The current system of elections in Hong Kong has also been subject to
criticism by the International Commission of Jurists as being heavily
weighted in favour of business and professional interests(65). The basis
of this criticism is the unfairness of the system and its lack of
democracy. Further, until 1973 there were no democratically elected
positions within Hong Kong(66). However, it is arguable there was a form of
democratic accountability to the British parliament that prevented gross
abuses of the Rule of Law as the Governor was accountable to the Colonial
Office who were accountable to the British parliament(67).
The people of Hong Kong showed a strong belief in the need for democracy
in a march on 21 May 1989 in support of the student protest in Beijing.
Most of the marchers held the belief that if China could not guarantee
freedom, human rights and democracy there was going to be little hope for
Hong Kong(68). This is a result of a process of the Hong Kong people internalising
the West's view of China(69). That is, the view of China as being
inefficient, illiberal and backward. As a result, this autocratic rule
does not appeal to the Hong Kong people.
Currently, there are 18 of the 60 Legco seats elected and this will
increase to 20 in 1995. Under Annex II of the Basic Law elections will
only be possible after 2007(70). However, a new parliament begins on 30
June 2007, so it will not be until 2011 until elections will be held.
Note, this procedure also does not guarantee direct elections. In my
submission this is a sufficiently long period of time for the Chinese
government to commit breaches of the Rule of Law without any degree of accountability.
The drafting of the Basic Law is an illustration of the Chinese government's
political position on democracy(71). Of the original 23 people from Hong
Kong, 2 resigned and the National People's Congress removed 2, and this
reduced the representativeness of the remaining members. Hence, this reduced
the legitimacy of the Basic Law itself.
To support my thesis I will now explain why democracy is a guarantee on
liberty and the Rule of Law. I will then explain some of the difficulties
associated with the successful application of democratic principles to
Hong Kong.
4.2 As a Guarantee of Liberty and The Rule of Law
Democracy is a value specifically because it allows individuals to control
the political process and protects them from arbitrary actions of
government(72). Hence, it acts as a check on the Rule of Law(73). It
rests political power with the people rather than an unaccountable
governing power(74). Further, authoritarian states have difficulty in
maintaining the independence of the judiciary in individual cases that could
affect their rule(75).
A democracy ensures the government remains within limits(76). Further, it
ensures that the individual has the ability to participate in decisions
that affect his or her life(77). Some argue that individual freedom
should be subordinate to economic rights(78). This argument says that
economic prosperity comes before individual autonomy. However, this is
not applicable to Hong Kong. As argued above, the economy and society of
Hong Kong are such that the citizenry expects individual autonomy. In
the face of a strong authoritarian government of the PRC, democracy in
Hong Kong would allow the individual to have input to the political
process and protect them from arbitrary actions.
In the context of Hong Kong the most reliable way to guarantee Hong
Kong's autonomy is political participation(79). That is, action by the
people of Hong Kong to criticise government policy.
4.3 Textual Analysis II - Democracy and the Basic Law
Article 45 of the Basic Law provides election of the Chief Executive will
be on the basis of universal suffrage in accordance with democratic
procedures following Annex I. Annex I provides selection of the Chief
Executive will be by a group of 800 people from different sectors and
this process will not change until after 2007. However, note, the final
appointment of the Chief Executive is up to the Central People's Government.
There are two areas in which this could conflict with a concept of a fair
democracy. First, there is no provision for direct elections. Second, as
noted above, the PRC has a history of controlling the nominations to such
politically sensitive positions(80).
Article 68 of the Basic Law provides election of the Legislative Council
will be in accordance with a formula providing a division between
functional constituencies and geographical constituencies. Again, the
same criticisms apply - there is no guarantee of direct election and
election of the full Legco will not be possible until after the year
2011.
5. Barriers to Democracy
It is also important to look at some of the conditions for democracy to
determine if Hong Kong meets these requirements. Some general conditions
have been postulated as(81):-
5.1 Participation
Participation means that there must be involvement or concern with the
political process by the citizens. In this case, Hong Kong people do not
have direct participation but they do form pressure groups that attempt
to influence the government on certain areas(82). Further, since
Tiananmen the population of Hong Kong have become much more politically
active(83).
Two other factors historically have affected the participation of the
Hong Kong people in the political process(84). First, Confucian
philosophy elevates patience to one of the highest virtues and hence the
Hong Kong people did not demand much from the British rulers. Secondly,
in Confucian philosophy, politics is for the gentry and not the masses.
5.2 Freedom of Speech
The aim of free speech is to provide a rational reflective debate on
issues affecting citizen. Generally, there is free and open debate in
Hong Kong. However, recently the Public Order Ordinance and the Film
Censorship Ordinance allow for censorship of information that will cause
alarm to the public or damage relations with other countries. These
definitions are problematical because this is exactly what free speech is
for - to create alarm and be critical of other territories (namely China)(85).
This is important in the context of democratic principles because it
could prevent criticism of those pro-PRC elements in democratic
elections.
5.3 Choice of Candidates
This is a large problem for the development of democracy in Hong Kong.
The political institutions in Hong Kong were imposed upon the population
and did not grow out of it(86). The current colonial system relies for
its stability on the politically unorganised passivity of the masses(87).
The political institutions themselves have thrived at the expense of political
development. This politically unorganised society has failed to produce
strong political leaders. However, there is still adequate time for
political leaders to develop. 5.4
Belief in Democratic Principles
There are three concepts associated with the term democracy sufficient
for an effective system, but they are contrary to each other(88). First,
there is majority rule where the majority's wishes are the dominant
consideration in government. Second, there is pluralistic democracy where
there is a circulation of elites so the government knows there is a real chance
it will lose its office. Third, is power sharing where minorities have a
say in the formation of policy. For example, the idea of majority rule is
contrary to power sharing with the minority. The degree to which any of
these concepts is implemented depends upon a belief system about
democracy.
The predominant philosophy in Hong Kong is Confucian(89). In Confucian
theory oppositional politics is considered bad(90). The political and
social realms in Confucianist thought are co- terminus and harmony (which
is the supreme good) depends on every individual acting correctly in
their assigned roles. The Confucian moralistic conception of political
power and rule by moral example reinforce this. Therefore, there should
be no contest over political power. In my submission this type of philosophy
will favour the development of a power sharing type of democracy.
5.5 Literacy and Education
Education and literacy are necessary to some extent so that people will
be able to comprehend and understand a government's policies(91). Hong
Kong does not have this problem as there is a relatively high level of
education in Hong Kong(92).
5.6 Pluralistic Social Order
This provides two benefits(93). First, it makes the government accountable
for what it does because it knows at any time there is an alternative
group that can take its place. Second, there is more equal participation
by the population in politics that promotes political stability. In Hong
Kong there is concern by multiple interest groups with the government of
the territory. Hence, there is a pluralistic society rather than one
dominated by a central authority.
A current problem is many of these interest groups are holders of the
economic power in the territory. They oppose development of democracy
because this would result in social welfare programs funded by higher
taxes(94). However, since Tiananmen many of those anti-democrats have
seen the value in the promotion of democracy to ensure stability(95).
5.7 Lack of Extreme Inequalities among the Politically Relevant Strata
The general living standard on Hong Kong is quite high relative to
Western countries and this is not a significant barrier to the
development of democracy in Hong Kong. 6. Other Influences on the Development of Democracy
6.1 Traditional Influences
I would also submit there are even stronger forces that tell against the
push for democracy within Hong Kong. As noted above, Confucian philosophy
sees oppositional politics as bad(96). This could tell against the
development of democracy as it would be considered adverse to harmony to
criticise the government over its policies.
Another aspect of the Chinese culture is what one writer has called indifference
to being ruled by the minority(97). The Chinese culture placed emphasis
on social relations rather individual rights - they emphasised compromise
and yielding to others before they developed their individuality. Some
argue this is the reason the society cannot liberate itself from rule by
others. If this is true, it is arguable that democracy may be
inappropriate for any Chinese society. However, Hong Kong society does
recognise individual rights(98). Hence, although this aspect of Confucian
philosophy will influence Hong Kong, there is sufficient development so
it is not the only concern.
6.2 Communist Influences
Communist China has an inherent opposition to the development of any form
of fully representative democracy. In Mao Communist theory democracy
extending to all members of society is invalid because it fails to
recognise the irreconcilable differences between the classes(99). Hence,
democracy could only extend to those groups whose interests could be
reconciled at the current stage of revolution. Mao's criticism of the
liberal system of a multi-party parliamentary system was that it
maintained the bourgeois dictatorship(100). Hence, Mao rejected a
multi-party system. The Communist Party was the only party that could
lead the revolution because organisationally the revolution had to be
complete and the most effective way of achieving this was through one
party. An example of this is the system of elections instituted in 1978.
There are elections to certain offices, but the Communist Party control
all nominations so there is no contest of policies(101). Further, the PRC
government has heavily attacked proposals by the current Governor
of Hong Kong to reform the constitution to permit democratic
elections(102). Another aspect is completion of the Basic Law was with
little or no consultation with the Hong Kong people(103). In my
submission this is a clear example of China's assertion of sovereignty
over Hong Kong.
The history of China also does not parallel the development of the
Western states. Its productivity, science and technology are not
sufficient for the state to handle any political instability. Hence,
concepts of Western democracy, liberty and social justice are not
transplantable to China(104). However, this is clearly not the case in
Hong Kong. In my submission Hong Kong closely fits the modern conception
of a liberal state(105). The economic system does not have the concerns
of the PRC system. Hong Kong has an advanced system of law and regulation
of executive and administrative action. Further, its political system is
influence by a large number of interest groups, none of which has
absolute control. To maintain this system democracy should be instituted
to act as a check upon abuses of the Rule of Law.
6.3 Historical Influences
An argument put forward by some writers is Britain and China came to some
tacit agreement over how they would treat the colony. China would not
interfere with British administration of the colony provided they could
continue to maximise profits through trade with the colony(106).
Historically, Britain treated the colony as a trading outpost temporarily
under the administration of the British(107). Therefore, they did not wish
to offend or harm their trading interests with the largest trading
partner just across the bay.
Another argument advanced by Endacott is many of the Chinese settlers did
not understand the British liberal system of government. Further, as the
Governor of the island was accountable to the British parliament any
injustices were dealt with by the United Kingdom Parliament and were not
of great concern to the Chinese settlers(108). Therefore, the Hong Kong people
had no concern in the development of democracy.
An interesting feature of Hong Kong is its almost pathological fear of
instability(109). This has lead to a fear of confrontational politics.
Early in the development of the colony the major concern of the Governors
was to develop a sense of stability(110). This exacerbated by the influx
of Chinese emigrants during the Cultural Revolution and their fear of
chaos.
Finally, the failure to allow democratic elections within Hong Kong could
be a result of the unwillingness of Britain to upset China by allowing
Hong Kong to be self determinate. That is, if the colony was self
determinate to the extent of having democratic elections this would
refute China's claims to sovereignty over the territory as the people of
Hong Kong would have political control. In my submission this is one of
the strongest influences and can explain why other colonies such as Australia
had democratic elections while Hong Kong was still under direct control
by the Governor.
7. Conclusion
The Rule of Law respects the autonomy of the individual and provides for
certainty in the law. In a system dominated by Confucian and Communist
ideology there is little room for concepts such as the Rule of Law that
promote this autonomy and certainty. However, Hong Kong, although highly
influenced by Confucian ideology, is very different. In my submission,
for stability and certainty in Hong Kong, adherence to the Rule of Law
is required. If the object of the Basic Law is to maintain the Hong Kong
society, that is as a liberal society, there should be a guarantee on the
Rule of Law. Further, if one of the aims of the PRC government is to
maintain the viability of the Hong Kong financial system the Rule of Law
should be instituted to provide stability and certainty.
Although democracy is not a necessary precondition for adherence to the
Rule of Law it is an effective check and balance upon its abuse. The
above analysis shows there are many reasons why there has not been full
development of democracy in Hong Kong. However, on close analysis of the
Hong Kong society the preconditions for democracy exist.
NOTES
(1) Raz, "The Politics of the Rule of Law" (1990) 3 Ratio Juris
331 at 332.
(2) Walker, The Rule of Law: Foundation of Constitutional Democracy,
Melbourne University Press, 1988 at 21.
(3) Jowell, "The Rule of Law Today" in The Changing Constitution
(Jowell and Oliver eds.), Clarendon Press: Oxford, 1989 at 19.
(4) Horwitz, "Thompson: Of Whigs and Hunters: The Origin of the Black
Act" (1977) 86 Yale LJ 561 ('It undoubtedly restrains power, but it
prevents powers benevolent exercise.')
(5) Jowell, supra n.3.
(6) Jowell, supra n.3, at 19-20.
(7) Wesley-Smith, "Protecting Human Rights in Hong Kong" in Human
Rights in Hong Kong (Wacks ed.), Oxford University Press, 1992.
(8) Raz, "The Rule of Law and It's Virtue" in Liberty and the Rule
of Law (Cunningham ed.), A&M Press: Texas, 1979.
(9) Walker, supra n.2 at 27.
(10) There must be a commitment to impersonal requirements in contrast to
favouring the interests of individuals of groups: Henley, "The
Impersonal Rule of Law" (1992) 5 Can. J. of L. and Juris. 299 at
305; Henley, "Abstract Principles, Mid-Level Principles, and The
Rule of Law" (1993) 12 L. and Phil. 121.
(11) ICJ, Countdown to 1997: Report of a Mission to Hong Kong, ICJ:
Geneva, 1992 at 93-95.
(12) supra n.8 - note that Raz considers this to be an incomplete list;
for an alternative formulation see Walker supra n.2.
(13) Fuller, The Morality of Law, Yale University Publishing, 1964.
(14) supra, n.8 at 13.
(15) Hayek, The Constitution of Liberty, University of Chicago Press,
1960, p153-154.
(16) Article 8.
(17) Article 43.
(18) See Cheng, "The Constitutional Relationship Between the Central
Government and the Future Hong Kong Special Administrative Region"
(1988) 20 Case W. Res. J. of Int'l L. 65 - but note that many of Cheng's
concerns with the conflict between the capitalist system and the
socialist sytem under the PRC Constitution have been met because of the
recent amendments to the PRC constitution which used the concept of a
'socialist market'.
(19) Hsin-Chi, "Chinese Constitutional Practice" in The Basic Law
and Hong Kong's Future (Wesley-Smith and
Chen eds.), Butterworths, 1988.
(20) Mushkat, "The International Legal Status of Hong Kong Under
Post-Transitional Rule" (1987) 10 Hous. J. of Int'l Law 1 which
talks about the attitude other states must take to Hong Kong to ensure
its status.
(21) That is, a modern world financial market dominated by computer
technology and instantaneous electronic funds transfer, where any
difference in risk of investment in a country (as balanced against the
rate of return) relative to another country can result in large capital
inflows or outflows in the blink of an eye: see for example, Dernburg,
"Improving the International Monetary System" in Global
Marcoeconomic, Harper and Row: New York, 1989. Also see Greenwood,
"The Stabilization of the Hong Kong Dollar" 7(6) Asian Monetary
Monitor 9.
(22) Han, "Hong Kong's Basic Law: The Path to 1997, Paved with Pitfalls"
(1993) 16 Hastings Int'l & Comp L Rev 321 at 342. An illustration of
this in Hong Kong is when the trading company Jardine Matheson and
Company decided to set up its international headquarters in Bermuda
because it feared the British legal system would not surive and did not
want to be concerned over the long term prospects of Hong Kong. The next day
the share market posted it largest one day slide prior to 1987, see Wall
Street Journal, March 29, 1984.
(23) Walker, supra n.2 at 104.
(24) Walker, supra n.2 at 284.
(25) CLSers argue the law is indeterminate and is developed based on
historical and political considerations: see generally Unger,
"Liberal Political Theory" in Critical Legal Studies
(Hutchison ed.), Rowman and Littlefield, 1989. Hence, the law acting as a
check upon abuses will not hold as the law is always indeterminant and
incapable of acting as a barrier. The CLS critics move into a dichotomy
between objective analytic certainty and pure aribitrary unconstrianed
choice. They fail to recognise the existence of contingent forms of
determinism that are understood by legal actors in a given culture and period.
Hence, partial outcome determinativeness, and stable patterns in law,
which are really all that is necessary to sustain concpetions of legal
principle and the rule of law act as a check upon arbitrary actions by
government: Blum, "CLS and The Rule of Law" (1990) 38 Buff LR 59 at 89.
It is also argued the concept of a pre-legal individual is not viable
where the language is indeterminant as the law has a number of
interpretations at any one time the individual does not have a certain
sphere of freedom: Carlson, "Liberal Philosophy's Troubled Relation
to the Rule of Law" (1993) 43 U of Toronto LJ 257 at 261-263. Again
the same answer can be applied - there is a certain sphere of partial
outcome determinativeness in a given period and culture enabling the citizen
to have some certainty in the existence of their freedom.
Another answer to the indeterminist theory is that the process of law
requires application to given facts. Hence, doctrine separated from the
facts of a given case is indeterminant. However, when the judge is
applying the law she is using the recorded cases to form her subjective
view of the justice of the case to determine a given outcome: Mootz,
"Is the Rule of Law possible in a post-modern world?" (1993) 68
Wash LR 249 at 301. Hence, reasoning within the system of law prevents
arbitriness in the decision by the judge.
(26) Depei and Kanter, "Legal Education in China" (1984) Amer. J.
of Comp. L. 543 at 568-571.
(27) Hutchinson and Monahan, "Democracy and the Rule of Law" in The
Rule of Law: Ideal or Ideology (Hutchinson and Monahan eds.), Carswell:
Oxford, 1987 at 121.
(28) Waldron, "The Rule of Law in Contempory Liberal Theory"
(1989) 2 Ratio Juris 79 at 90.
(29) Bottomley, Gunningham and Parker, "Liberalism, Formalism and
the Rule of Law" in Law in Context, Federation Press: Sydney, 1991.
(30) Henkin, "Rights: Here and There", reprinted in Readings in
the Philosophy of Law (Arthur and Shaw eds.), Prentice Hall: New Jersey,
1992, at 559.
(31) Joint Declaration of the Government of the United Kingdom of Great
Britains and Northern Ireland and the Government of the People's Republic
of China on the Question of Hong Kong, Article 3(5).
(32) Wacks, "The Judicial Function" in The Future of the Law in
Hong Kong, Oxford University Press, 1989; Hsu and Baker, "The Spirit
of Common Law in Hong Kong: The Transition to 1997"
(1990) 24 UBCLR 2; Chang, "Towards a Jurisprudence of a Third Kind -
One Country, Two Systems" (1988) 20 Case West. LR 99; Fung,
"The Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China: Problems of Interpretation" (1988) 37 ICLQ
701.
(33) Zweigert and Kotz, "The Method of Comparative Law" in Introduction
to Comparative Law, Clarendon: Oxford, 1987 at 37.
(34) Collins, "Class Struggle and the Rule of Law" in Marxism and
Law, 1982.
(35) Li, "The Role of Law in Communist China" (1970) China Quarterly
66 at 66-72.
(36) Vandermeersch, "An Enquiry into the Chinese Conception of the
Law" in The Scope of State Power in China (S R Schram ed), Chinese
University Press: Hong Kong, 1985.
(37) The relationships being: (1) Emporer-Citizen, (2) Friend- Friend, (3)
Husband-Wife, (4) Parent-Children, (5) Brother- Brother
(38) Lee and Lai "Chinese Conceptions of Law: Confucian, Legalist
and Buddhist" (1978) 29 Hastings LJ 1307 at 1308- 1312 in Varga, Comparative
Legal Cultures, Dartmouth: Sydney, 1992 at 225.
(39) Epstien, "China and Hong Kong: Law, Ideology, and the Future
Interaction of the Legal Systems" in The Future of the Law in Hong
Kong (R Wacks ed), Oxford University Press: Hong Kong, 1989.
(40) See Young, "Observations on The Importance of Law in China"
[1988] Bringham Young LR 501 at 502-516 also Tay, "Law in Communist
China - Part 1" (1969) 6 Syd. LR 153.
(41) Chen, "Civil Liberties in China: Some Preliminary Observations"
in Civil Liberties in Hong Kong (Wacks ed.), Oxford University Press,
1988.
(42) Some argue that in traditional China there was rule of law - the
bureacracy was morally educated, there was a system of appeal courts, the
judiciary had to disqualify themselves in cases of bias and were bound by
the law: Turner, "Rule of Law Ideals in Early China?" (1992) 6 Journal
of Chinese Law 1; MacCormack, "Natural Law and Cosmic in Traditional
Chinese Thought" (1989) 3 Ratio Juris 254. However, in my submission
the definition adopted of the Rule of Law is different. In early
China, law was developed by the ruling class and they could determine
what was natural, good or traditionally correct to suit their interests.
The people were bound by this determination as each person would have to
conform. The concept of general laws guiding specific laws was alien -
those aspects of Chinese culture that guided behaviour could be changed
at any time. That is, the general rules themselves were open to change.
(43) Vandersmeech, supra, n.36.
(44) Lloyd, "Marxist Theory of Law and Socialist Legality" in Introduction
to Jurisprudence (3rd ed), Stevens & Sons: London, 1972 at 651-654.
(45) Tay, "Communist Visions, Communist Realities, and the Role of
Law" (1991) J. of L. and Soc. 155 at 159-161.
(46) Epstein, "China and Hong Kong: Law, Ideology, and the Future
Interaction of the Legal Systems" in The Future of the Law in Hong
Kong (Wacks ed.), Oxford University Press, 1989; Tay, supra n.40.
(47) But note, recent amendments to the PRC Constitution has resulted in
the introduction of a "socialist market" - it will be
interesting to see how the concept of public ownership interacts with a
market style economy! Although it must be noted that Article 10 of the
PRC Constitution includes the right to private ownership, although this
has not been practiced. See Kaye, "Reformist Bandwagon" (1992) Far
Eastern Economic Review, March 5, p. 20; Cheng and Mosher, "Deng's Distant
Vision" (1992), Far Eastern Economic Review, May 14, p.23; Kaye,
"Bold Blueprint" (1993) Far Eastern Economic Review, March 25,
p.13.
(48) Xingzhong, "Legal Pragmatism in the People's Republic of China"
(1987) 3 Journal of Chinese Law 29 at 48 - note, these rights cannot be
taken for granted as they are only provided to fulfill the states
ideology.
(49) Herman, "Education of China's Lawyers" (1982) 46 Albany LR
789 at 801.
(50) Bessinger, "The Party and the Rule of Law" (1990) 28 Columbia
Journal of Transnational Law 41 at 44.
(51) Capner, "An American in Beijing: Perspectives on the Rule of
Law" [1988] Bringham Young LR 567 at 571.
(52) Lubman, "Emerging Functions of Formal Legal Institutions in
China's Modernization" (1982) 2 China Law Reporter 195 at 262-266.
(53) Chan, "Democracy Derailed: Realpolitik in the making of the
Hong Kong Basic Law" in The Hong Kong Basic Law: Blueprint for
Stability under Chinese soverignty, M E Sharpe Publishers, 1991.
(54) It should also be noted that one of the stated conditions for Taiwan
to consider reunification was the promise and reaffirmation of the
continuance of democracy: Weng, "The Hong Kong Model of 'One Country,
Two Systems': Promises and Problems" in The Basic Law and Hong
Kong's Future (Chen and Wesley-Smith eds.), Butterworths, 1988.
(55) Baker and Hsu, "Common Law under Socialist Legal System: The
Future of Hong Kong" (1991) 7(1) China Law Reporter 1 at 6; Roy,
"The Rabbit Awaits the Tiger: Hong Kong's View of the Peking
Regime" (1991) 27 Issues and Studies 61. Roy argues that Hong Kong
people have internalized the West's conception of China and hence view it
with suspicion. This is partly true, but it is also arguable that the
people's experiences with China would have added to this - alot of the
citizens are refugees from China itself. However, Roy gives many examples
of this internalisation of Western values such as liberal political
and legal philosophy.
(56) see for example, Miners, "Pressure Groups" in The Government
and Politics of Hong Kong (5th ed.), Oxford University Press, 1991. 57
Rabushka, Hong Kong: A Study in Economic Freedom, University of Chicago Press,
1979 at 31-64.
(58) Rabushka, supra n.57 at 193-198. Rabushka also argues the reason
Hong Kong has been so successful is the combination of Confucian values
with this British liberal society. The analysis is very interesting as it
compares the relative development of Hong Kong with China and shows how
economically inefficient China is even though it has a relatively larger natural
resource base than Hong Kong ever could. He places the blame for this
squarely at the feet of the political system, and shows that after 1978
when various agricultural reforms were made in China to provide
incentives production tripled. It is also argued one of the essential
features to this economic success lacking in China was the rule of law,
see p71 and 83.
(59) Rabushka, supra n.57, at 188 and as he notes - no wonder the
Hongkongers are worrying!
(60) McWilliams, "ABA President Urges China to Grant Dissident Legal
Rights" (1993) 20(1) Human Rights 13.
(61) Holden, "Different Sorts of Democracy" in The Nature of Democracy,
Nelson Publishing: London, 1974.
(62) Cooper and Lui, "Democracy and the Administrative State",
(1990) Public Administration Review 332 at 340.
(63) Held, Models of Democracy, Basil Blackwell Press: Oxford, 1987 in
which Held identifies at least nine viable alternatives.
(64) Jacobs, "Elections in China", (1991) 25 Australian Journal
of Chinese Affairs 171 at 198-199.
(65) ICJ, supra n.11 at 74.
(66) ICJ, supra n.11, at 68.
(67) see for example Endacott, A History of Hong Kong, Oxford University
Press, 1958 at 62-63 and see Miners, Hong Kong under Imperial Rule
1912-1941, Oxford University Press, 1987 at 29-30; Cheng, "The
Political System" in The Basic Law and Hong Kong's Future (Wesley-Smith
and Chen eds.), Butterworths, 1988.
(68) Cheng, "Prospects for Democracy in Hong Kong After the Beijing
Massacre" (1990) Australian Journal of Chinese Affairs 161 at 166.
(69) Roy, supra, n.55; also see So and Kwito, "The New Middle Class
and the Democratic Movement in Hong Kong" (1990) 20 Journal of
Contempory Asia 384.
(70) See Annex II Part III.
(71) Cheng, supra n.68 at 182.
(72) Gaze and Jones, "Democracy and Civil Liberties" in Law, Liberty
and Australian Democracy, LBC: Sydney, 1990.
(73) It is also argued by some that democracy and the rule of law are
incompatible as judicial review is undemocratic, however it is not if the
form of judicial review reinforces the democratic values: Feldman,
"Democracy, The Rule of Law and Judicial Review" (1990) 19 Fed.
LR 1.
(74) Jowell, "Administrative Law" in Lord Denning: The Judge and
the Law (Jowell and McAuslan eds.), 1984 at 209.
(75) Walker, supra n.2 at 12-14.
(76) Bobbio, "Liberalism's Encounter with Democracy" in Liberalism
and Democracy, Verso: London, 1988.
(77) Duncanson, "Law, democracy and the individual" (1988) 8 Legal
Studies 303 at 305.
(78) Shazozhi, "Science and Technology and Democratisation in Socialist
Development Strategies" in Democracy and Socialism in China,
Spokesman: 1982. It should be noted the paper in this book was presented
in 1981, 8 years before Tiananmen, and shows an optimisim for the
development of democracy in China.
(79) Shiu-ing, "Decolonization and Political Development in Hong
Kong" (1988) 28 Asian Survey 613 at 627-628.
(80) For example, see the way the CPC controlled the composition of the
Basic Law Drafting Committee.
(81) Holden, "The Necessary Conditions of Democracy" in The Nature
of Democracy, Nelson: London, 1974.
(82) Miners, supra n.56 at 188.
(83) Cooper and Lui, supra n. 55; Williams, "Democratization and
Political Party Development in Post-Tienanmen Hong Kong"
(1991) 27 Issues and Studies 128.
(84) See generally, Miners, "Hong Kong: A Case Study in Political
Stability" (1975) 13 Commonwealth and Comparative Poltics 26.
(85) Davis, "A Vigilant Public" in Constitutional Confrontation
in Hong Kong: Issues and Implications of the Basic Law, St Martin's Press:
New York, 1990.
(86) Siu-kai, "Institutions Without Leaders: The Hong Kong Chinese
View of Political Leadership" (1990) 63 Pacific Affairs 191 at 193.
(87) Miners, supra n.84.
(88) Brown, "Does Ideology have any place in Democracy?" in Thinking
About Democracy (C. Pan ed.), Political Association: Singapore, 1989.
They add a fourth - the concept of limited government. However, in my
submission this is merely the rule of law and is compatible with any of
the other three concepts.
(89) Ling and Mei Mei Ngin, "Ideology and Confucianism" in Thinking
About Democracy (ed. C Pan), The Political Assocaistion: Singapore, 1988
('For those in positions of influence ina strongly Chinese society,
political, social, or religious, to ignore Confuciun tradition in
philosophy and ethics, would appear to be historically and culturally eccentric.')
(90) Lawson, "Institutionalising Peaceful Conflict: Political Opposition
and the Challenge of Democratisation in Asia" (1991) 45 Australian
Journal of International Affairs 15 at 22-24.
(91) Dahl, Polyarchy: Participation and Opposition, Yale University
Press, 1971 at 75-76; also see Pendelton, "A Personal View of
Democracy and Human Rights in Hong Kong"
(1988) 18(2) HKLJ 354.
(92) Hsu, The Common Law in Chinese Context, Hong Kong University Press,
1992, at 101.
(93) Held, supra n.63 at 204.
(94) Cheng, supra n.68 at 162.
(95) Chan, supra n.53.
(96) Lawson, supra n.96.
(97) Hung-Yok Ip, "Liang Shuming and the Idea of Democracy in Modern
China" (1991) 17(4) Modern China 469 at 481.
(98) See for example the Hong Kong Bill of Rights.
(99) Reglar and Young, "Modern Communist Theory: Lenin and Mao Zedong"
in Liberal Democratic Theory and its Critics
(Winthrop ed.), Croom Helm: Canberra, 1983.
(100) Lawrence, "Capitalism and Crisis" in Democracy and the Liberal
State, Dartmouth Publishing, 1989.
(101) Rich, "Hong Kong: Revolution without Change" (1990) HKLJ
279.
(102) Cheung, "Frontal Assault" (1993) Far Eastern Economic Review,
April 1, 10.
(103) Chan, supra n.53.
(104) Wen-wie Chang, "Confcianism, Democracy, and Communism: The
Chinese Example in Search of a New Political Typology for Systemic
Intergration" (1990) November, Issues & Studies 53.
(105) Bottomley, Gunningham and Parker, supra n.29.
(106) Miners, supra n.56 at 6.
(107) Endacott, supra n.67, at 121.
(108) Endacott, supra n.67, at 122.
(109) Cooper and Lui, supra n.62 at 340. That is, stability in a static
sense and not dynamic stability.
(110) Miners, supra n.67 at 4-27.