April 22, 2005

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Why the Basic Law matters (Updated April 22nd)

Yesterday Secretary for Justice Elsie Leung had her defence of the Government's rush to ask the NPC to interpret Hong Kong's Basic Law over the term of the next Chief Executive.

Today Michael DeGolyer explains why it all the protesting matters in the best newspaper article on the topic to date. I urge you to read it all (reproduced below the fold but the conclusion bears repeating: Rules really are made to be followed, not broken. Either rewrite the rulebook or play by it. Something else I read today (I will update when I find the link) noted that "rule of law" is an alien concept in Chinese political culture. Mandarins were only about results although ostensibly they were about the means to that end as well. Process was not important. This Basic Law debacle is the same. The concept of rule of law, even in Hong Kong, has been trumped by the Confucian respect for authority. I have no idea how the two ideals can be reconciled, but somehow they must.

** I'd be very grateful if anyone else comes across the link/blog so I can include the link. **

Update April 22nd

* ESWN posts a translation of a counter-essay from a pro-Beijinger.

The rules of engagement Recently a student asked, "Why are the Democrats always stirring up trouble?'' Since local affairs reporting in the Chinese-language press sometimes differs dramatically from English-language local news, I asked him to clarify.

``Democrats demand Tung Chee-hwa step down. He does, they complain. Democrats want to reform the chief executive election in 2007, but when Beijing says Donald Tsang can only stay until 2007, Democrats insist the Basic Law says he must serve five years, until 2010. Democrats know Beijing wants Tsang, but they make Lee Wing-tat run against him. They know Lee cannot win. Why do they do this? Why do they always cause trouble and oppose everything?''

Good questions.

Even after filling in as acting chief executive for a few weeks, Tsang is obviously so much more competent than Tung at running the government that most people just want to forget the Tung era ever happened. Yet the Democratic Party seems to insist on raining on the parade, no matter who's leading it, no matter what tune the band plays, and no matter what direction it marches.

I am not a Democratic Party apologist or a member of any party in Hong Kong. Like many expatriate professionals, I'm probably closer in policy outlook to the Article 45 Concern Group than the often populist Democrats.

What I want, and what most people want, is good government. But getting it is the trick, a bit like John D Rockefeller's reply when asked how to get rich: ``Buy low, sell high.'' Sage advice. Absolutely fool-proof. Pulling it off regularly is the catch.

Democrats fundamentally believe good government is not a matter of outcome but process. Since Confucius, Chinese governance theory has held that good character and good education makes for good rulers. With good rulers and good government, the good outcome wished for was reached.

Hence the eight-legged essay on Confucian classics as the civil service entry test - education on how to be good as a means to winnow the good man and ensure good government.

In reality, mandarins were expected to do whatever it took to achieve the imperial government's objectives. Tax farmers delivered agreed sums to government, full stop. Though form counted, especially preserving the appearances of obedience and harmony, outcome, not good character, was what really mattered.

Such attitudes survived the collapse of empire, nationalists, warlords and communists.

That is why China's government struggles to implement what they describe as ``rule by law.'' Cadres should follow written rules governing what is permissible or required instead of delivering results, no questions asked.

The difference between outcome and process is a matter of ends versus means. For example, while rape and making love might both end in pregnancy, the way impregnation occurred makes all the difference. Even if the impregnator-rapist were a husband or supposed lover, and even if the mother loves the offspring, means matters.

Process-focused regimes forbid things like torture while result-dominant regimes tend to cross the line. Even America, where legal systems traditionally emphasize process over outcomes, wandered astray at Abu Ghraib. Winning a war outweighed the ethics of the means chosen to wage it.

Democrats believe having good government is the objective, but to ensure it regularly occurs, and to ensure that if a government is not good it will be replaced with one that is, is to insist that processes be scrupulously followed at all times. This is what they mean by ``rule of law.''

Though Democrats strongly support chief executive election reform in 2007, they believe more strongly that the rules as set down constitutionally must be followed. Even if the outcome is good this time - ensuring reform in 2007 and putting a competent person in charge - breaking process weakens the overall power of the law to constrain bad behavior.

History proves the Democrats right.

The first National People's Congress interpretation in 1999 followed a Court of Final Appeal ruling. The government should have amended the Basic Law then, but arguably they had a constitutional right to appeal for clarification.

But there was no legal case or government appeal before last April's unilateral NPC intervention that interpreted away Hong Kong's right to debate, litigate, if need be, then appeal to central authorities on the 2007-08 reforms.

This year our government has short-circuited legal procedures altogether mid-case in its haste to ensure an outcome: an election of the chief executive by the present Election Committee on July 10 before its term expires.

This outcome-dominated thinking threatens our process-oriented Basic Law and common law constitutional tradition.

Rules really are made to be followed, not broken.

posted by Simon on 04.22.05 at 08:10 AM in the Hong Kong category.


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