China is not the only large nation that prefers power to law.
David Bier http://www.nytimes.com/2005/03/20/weekinreview/20brad.html March 20, 2005 In Hong Kong, China Prefers Power to Law By KEITH BRADSHER HONG KONG — From purchases of handheld toys to charters of supertankers, contracts in China are frequently written so that disputes must be resolved under Hong Kong law and in Hong Kong courts - even when the parties involved are mainland companies. This reliance by the Chinese on Hong Kong's robust legal system has given optimists hope that the mainland, where the Communist Party still wields ultimate authority, would inevitably accept the rule of law. They note that the party needs to attract increasing amounts of foreign investment to fuel the economic growth that underwrites its power, but investors want to know that their rights will be reliably protected by laws. But the optimistic view has been shaken in the past two weeks, in ways that have alarmed lawyers here and have underlined how far mainland China is from understanding the necessity of a strong legal system. Beijing authorities have forced the territory's government to do an about-face on a critical constitutional issue by shortening the term of Hong Kong's chief executive to two years from five. The executive is selected by the Electoral Committee, most of whom are strongly loyal to Beijing. This will tie the next leader, and therefore the way the territory functions, much more closely to the mainland. The Basic Law, Hong Kong's mini-constitution, clearly says that the chief executive must serve a full five-year term, said Andrew Bruce, the vice chairman of the Hong Kong Bar Association. "It is as plain as day, and the argument that some other systems should apply are simply invalid," he said. The question is why Beijing seems to be riding roughshod over Hong Kong, given the negative publicity that will result. A session of the National People's Congress, which concluded last Monday in Beijing, was notable for the enthusiastic remarks from deputies and legal scholars alike about the importance of the Chinese legal system. Some analysts say that, while China's leaders are happy to encourage abstruse debates about law, they remain unwilling to discuss a fundamental question: should the government be able to supersede the law when it wishes, or, as in a democracy, should limits be placed on government power? Particularly upsetting to lawyers has been the assertion by the government here that the common law system should not apply to the Basic Law, which was drafted by Chinese lawyers 15 years ago. Elsie Leung, the secretary of justice, has contended that the law's interpretation should be based instead on the mainland legal system, which provides broad latitude for judges and scholars to look at the intent of the men and women who drafted the law. Two mainland legal scholars have stepped forward to say that they recall discussing shortened terms in the late 1980's, even though the discussion is not explicitly reflected in the Basic Law. Hong Kong's business leaders, unlike many lawyers, so far seem relatively unfazed by the matter. John C. C. Chan, the managing director of the Kowloon Motor Bus Company Ltd., one of the biggest transportation companies here, said that he viewed the squabble as a matter for politicians, not a threat to the legal system as it applied to business dealings. "There is no risk of the law not applying to contracts," he said. But legal, financial and political matters are not always so easily compartmentalized. Hong Kong, which was reunited with China in 1997, having been in British hands since 1841, was supposed, under the terms of the handover, to enjoy a high degree of autonomy for the next 50 years. But now, one of the biggest risks for Hong Kong may be institutional paralysis, as short-term leaders grow reluctant to pursue bold policies that could imperil their reappointment. For example, Henry Tang, the financial secretary and a likely candidate this summer or in 2007 to become chief executive, put forward a budget on Wednesday noteworthy for its lack of new policies. The following morning, The Standard, a local newspaper, ran a political cartoon showing him motionless as two large serpents slithered around him, one labeled "Beijing opinion" and the other, "public opinion." Mr. Tang remarks, "They can only see me if I move." ------------------------ Yahoo! Groups Sponsor --------------------~--> DonorsChoose. 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