March 20, 2005

Speed Boat to China

by PG

Since I visited Hong Kong during Christmas 2002, I've been interested in the gradual process of shifting it to Beijing's control for two main reasons. The lesser one is the ways in which this process underscores the lack of leftwing economic ideology in Chinese Communism; for example, while Hong Kong tries to retain its ability to legislate for worker safety and minimum wages, China pushes for a laissez-faire system.

More fascinating, though, is the Hong Kong people's losing battle to maintain their freedoms and form of government. The U.S. vaguely hopes that trade and other forms of interaction will liberalize China, but in the meantime, the one democratic bit of the country is becoming less and less so. Still, for those interested in comparative international law, China and Hong Kong provide an excellent juxtaposition. The latest incident: Beijing decided that Hong Kong's chief executive's term will be two years, contrary to HK's constitution-like Basic Law, which sets it at five years.

This shift will enable Beijing to exercise more control, sooner, over the province. As with the mainland's other moves to make HK more politically similar to the rest of China, I doubt that protests of unconstitutionality will do much more than slightly slow down implementation. The New York Times article tries to frame this as a potentially larger issue of changing all HK law to be more like China's, but unperturbed HK businesspeople probably have the right of it:

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.
Considering how well HK business law has done for the area's economy, and the frequency with which even mainland companies write contracts to put themselves under HK jurisdiction, there's little purpose to pushing Hong Kong into a weaker legal system.

The one cause for alarm may be "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." Unlike the precedent-based HK jurisprudence, the mainland legal system appears to have what we might call an originalist philosophy; it "provides broad latitude for judges and scholars to look at the intent of the men and women who drafted the law."

However, even this seems to be mostly a weak attempt at providing legal justification for Beijing's power grab, though it does provide a fun instance of The Trouble With Legislative History: "Two mainland legal scholars have stepped forward to say that they recall discussing shortened terms in the late 1980s, even though the discussion is not explicitly reflected in the Basic Law." Uh huh. I can just imagine this happening with the Restatements...

Judge: "But our precedents clearly say that this contract is not valid, nor does statutory law protect it."

Farnsworth: "Oh yeah, but we legal scholars talked about a provision to enforce that kind of contract. The discussion just isn't explicitly reflected in the law. If you read my book, though..."

Perhaps constitutional and business law cannot be so neatly divided, and HK's corporate honchos likely will raise a belated complaint if Beijing tries to micromanage the rules governing their transactions. Until then, however, the general theme of Chinese politics -- political freedom? We rapidly-modernizing-millions don't need no steenkin' political freedom -- probably will extend to Hong Kong as well.

March 20, 2005 03:02 AM | TrackBack
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