China's path to enlightenment

PUBLISHED : Thursday, 31 March, 2005, 12:00am
UPDATED : Thursday, 31 March, 2005, 12:00am

It appears almost certain that the proposed two-year term of office for the next chief executive will be challenged in the local courts. The way the matter is handled - by the central government, by the Hong Kong administration, and by the local judiciary - will have a profound impact on the rule of law.

The present law appears quite clear. Article 46 of the Basic Law says: 'The term of office of the chief executive ... shall be five years. He or she may serve for not more than two consecutive terms.'

Article 53 says that where the chief executive vacates the office before the end of his or her term, a new leader shall be selected within six months. And, under Section Three of the Chief Executive Election Ordinance, the term of office 'shall be five years'.

Unlike in other countries, such as the US, there is no provision anywhere for the remainder of a chief executive's term to be served by his or her successor. Thus, it is hard to see how a two-year term can be justified.

The power of the courts to interpret the law only arises where the language of the statutory provision is unclear. Where the wording is clear, there is no basis to change the meaning through an interpretation.

The lawful way to implement a two-year term of office is to amend both the Chief Executive Election Ordinance and the Basic Law.

The present controversy is a test of the rule of law. Is it to be regarded as a system of rules that even a government must abide by, or is it just something to be obeyed only by the people that it governs?

If the law is found to be an inconvenience, can a government simply declare itself not bound by it, or able to get around it through a contrived interpretation or reinterpretation?

An examination of society shows that we have evolved from various forms of 'rule of man' to a system of 'rule of law'. Therefore, a system of 'rule by law' - that is, where the government is above the law - is only an intermediary stage. Ultimately, in an enlightened society, everyone - including the government - would abide by the same rules made by and for that society.

The law, by its very nature, takes away freedom of action and restricts the exercise of power. With this type of control, everyone knows what to expect within these guidelines. This is what makes it important.

Through the overwhelming influence of Confucius, China has, historically, been slow to develop the rule of law.

Confucian teachings set such a high standard of social behaviour that the law - which, by contrast, sets the minimum standard of conduct - was unnecessary. This is because if everyone followed these high standards, there would be no need for the law. Regrettably, this 'utopia' does not exist, and the law has become the cornerstone of all enlightened societies.

In the west, the modern system of rule of law began with the Twelve Tables of Roman times. The system has been developing over the past 2,000 years. Its stabilising influence has enabled society to develop into today's modern civilisation.

China is a great country with the potential to become a world leader in the 21st century. Leadership entails responsibility and having qualities that win support and admiration. Perhaps it is time for China to demonstrate to the world that it merits world leadership by embracing the true meaning of the rule of law.

Winston Chu Ka-sun is a visiting professor of the Faculty of Laws at University College London