Title : The Rule of Law and Democracy in Hong Kong - : Comparative analysis of British Liberalism and : Chinese Socialism Author : Mason Hills Organisation : Murdoch University Keywords : Rule of Law, Hong Kong, People's Republic of : China, Socialism, Democracy Abstract : This paper seeks to explore the concept of : Rule of Law in Hong Kong, at the present and : in its future as part of the People's Republic : of China. Democracy is seen as not essential : but complementary to Rule of Law providing : checks on its implementation. Some of the main : political, ethnic and cultural influences is : explored. It concludes with the assertion that : Rule of Law is one of the elements required : for the maintenance of a stable Hong Kong : society. 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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 resouces 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 on 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 R*eadings 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.