The lesson of the triple twisted pine: plum blossoms on mountain peaks and the future of the rule of law in Hong Kong.

Author:Dellapenna, Joseph W.
Position:Symposium: Hong Kong's Reintegration into the People's Republic of China
 
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  1. PROLOGUE

    In 1971, I visited the Craters of the Moon National Monument in southern Idaho. The area is said to resemble the surface of the moon as a result of relatively recent massive lava flows. In fact, the Monument had been used for training astronauts before they went to the moon. The lava congealed centuries ago, forming a solid cap that prevents most vegetation from growing. The National Park Service had built a boardwalk over the lava field, allowing one to walk a considerable distance out onto one of the most desolate areas in North America. Accompanied by my five-year-old daughter, I walked on the boardwalk until I reached a wretched looking stump of a tree--the remains of the lone tree in an area of perhaps 100 square miles. The tree, at its best, had been horribly twisted by its struggles against the lava and the fierce winds and other weather conditions sweeping across the lava field without obstruction. The tree, a landmark on the barren plain, had even been given a name befitting its shape--Triple Twisted Pine.

    Triple Twisted Pine died in 1968 after having struggled to grow there for some fifteen hundred years, or so said a sign next to the tree. The sign was very definite about the age of the tree (more definite than my memory allows me to be), for the sign went on to say that scientists knew the tree's age because, in 1967, they had drilled a core sample on the then apparently healthy tree to determine its age by counting growth rings. Although I cannot say for certain that the drilling killed Triple Twisted Pine, it always seemed to me that the death of the tree so soon afterward must have been more than a coincidence. I do not suppose that the scientists intended to kill the tree. Instead I look upon the death of the tree as illustrating the importance of unintended consequences--often of greater importance than the consequences that were intended.

  2. INTRODUCTION

    In March 1997, the author led a delegation of American lawyers to Hong Kong on behalf of the Section of International Law and Practice of the American Bar Association.(1) The purpose of the trip was to explore the future of the law, the courts, and the legal profession in Hong Kong after the handover of authority over the colony to the People's Republic of China (hereinafter P.R.C.) on July 1, 1997. While there, the author came to realize that the major concern about the future of Hong Kong lies not in the possibility that the government in Beijing will deliberately set about to destroy the prosperity and freedom of the people of Hong Kong, but in the unintended consequences of well-intended acts--by the government in Beijing and other mainlanders, by foreign interests, and by persons in Hong Kong itself.

    Consider in this regard the efforts of many in the news industry at self-censorship to avoid offending the new regime.(2) Even the South China Morning Post, the English language newspaper with the largest circulation in Hong Kong, and perhaps the paper most respected for its independence and integrity in all of east Asia, has curtailed its own criticism of the P.R.C. without awaiting directives from Beijing(3)--directives that might never come. In a similar vein, virtually the entire senior staff of the Asia TVs news department resigned after the station declined to air a Spanish documentary on the Tiananmen Square tragedy. In the uproar after they resigned, the station did air the documentary, but it also appointed a journalist noted for his pro-Beijing stance as the new news director.(4) And at least one major businessman has already been forced to resign as chairman of the board of his company because of his criticism of Chinese Premier Li Peng.(5)

    Related to the process of currying favor in Beijing even beyond what Beijing itself might want is the resurgence of Chinese cultural norms at the expense of a tradition of legality instilled under British rule. Hong Kong is an expensive place to do business, with some of the highest land rents and some of the highest labor costs in the world. At least some businesses have chosen to locate in Hong Kong rather than in cheaper locations in eastern Asia because of the certainty provided by Hong Kong's orderly administration of law and relative freedom from corruption.(6) This is true even for those who are oriented entirely toward the Chinese market, for costs would be lower in Shenzhen Oust across the border), in Guangzhou (further up the Pearl River), and in Shanghai (at the mouth of the Yangtze River)--all inside the P.R.C. These places lose out to Hong Kong in part because Chinese culture has never been a "legal" culture, creating rather serious risks for business people operating there.(7)

    The overwhelming majority of the people in Hong Kong are ethnic Chinese who, despite a veneer of westernization, still think and act as Chinese.(8) As the Hong Kong judiciary has been transformed over the past fourteen years from a group eighty percent of whom are expatriates (mostly English) to a group eighty percent of whom are natives of Hong Kong,(9) one can expect Chinese cultural patterns to reassert themselves in Hong Kong legal proceedings.(10) Consider in this regard the discussion of a recent pornography prosecution in Hong Kong as reported in the South China Morning Post.(11) Hong Kong's Obscene Articles Tribunal convicted the defendants of publishing an indecent photograph in the Chinese-language Oriental Daily News. The photo was of a nude man and a nude woman in a music store in Australia, accompanying a news article about a sales promotion in which the store gave away free CDs to anyone "brave enough to shop naked." The photos had been edited to spare readers' sensibilities, but apparently not enough. What is most striking about the court's description of the failure of the newspaper's editors is its characteristic Chinese imagery. The tribunal found the photos to be indecent because the photos enabled readers to see the woman's "plum blossom flowers on the peaks." When, one might ask, would you find a judge in England, the United States, or elsewhere in the common law world writing in this manner'? The High Court gave the defendants' appeal short shrift.(12)

    On its face, the prosecution itself in the "plum blossoms" case is hardly noteworthy if you accept the notion that the state has the right to prevent the publication or distribution of materials with sexual content. The case is important, however, as signaling the re-emergence of Chinese patterns of thought in the Hong Kong judiciary. The "plum blossoms" case was not simply an aberration of a low-level, specialized tribunal. How the transition to Chinese rule will impact the Hong Kong judiciary, however, cannot be foretold with any certainty.

    While one must expect that Chinese patterns will influence the Hong Kong judiciary, Hong Kong patterns might very wen also influence China, including the Chinese judiciary. Just how strongly these influences will extend across a border that both sides are intent on keeping somewhat impermeable can only be guessed. Given the relative sizes of the two communities, one should expect the influence of the mainland China on Hong Kong to be rather stronger than the influences the other way. After all, a considerable majority of the people of Hong Kong are Chinese. Hong Kong residents have learned to live and work under the British-imposed legal system, yet many, at least in their activities relating to other Chinese, have always exhibited the cultural patterns outlined above: an avoidance of official dispute resolution; a heavy reliance on family for support, protection, and mediation, and an emphasis on relationship or connection (guanxi) over legal right and duty.(13) This alone suggests that as the British influence is withdrawn from the government, Chinese approaches to courts will reassert themselves. Yet, the leaders of both the Hong Kong government and the Chinese government insist that the rule of law as previously known in Hong Kong will be preserved.(14) The pattern of Chinese culture reasserting itself is likely to become steadily stronger as British rule recedes in time.

    The expectation that Chinese culture will gain influence in Hong Kong requires a somewhat more extended examination of general Chinese cultural traditions involving law and legal process in assessing probable changes in the rule of law in Hong Kong. Part III examines the features of the Chinese legal system and its differences from Western legal tradition. Part IV predicts how the reintegration of Hong Kong into China will affect Hong Kong's legal system and the appearance of justice in Hong Kong. Part V highlights the implications that the changes in Hong Kong will have for the United States and the broader international community. Part V concludes that international vigilance is necessary to prevent the erosion of the rule of law in Hong Kong.

  3. THE SALIENT CHARACTERISTICS OF CHINESE LAW

    The essential characteristics of a legal system, at least one that provides minimum procedural fairness, and substantive legality, include certain basic features that we expect to find in any system of dispute resolution that we choose to call "law."(15) First, controversies will be decided by the application of rules or principles that are established and reasonably determinable by the public (or at least by a legal profession) in advance of the events giving rise to the controversy. In this sense, at least, the rules or principles can be described as neutral. These rules or principles are applied by a formal structure of decision-makers who are drawn from a profession educated in the law. The decision-makers are to a significant degree insulated from the pressures of narrow interests (whether based on political or financial influence) in the application of the rules or principles, and therefore are accountable to law rather than to personal loyalties or gain. These characteristics, found in Western legal systems...

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