Hong Kong rule of law damaged

Hong Kong's retrocession to China was accompanied by many fears as to what would happen to the rule of law in the new Hong Kong Special Administrative region of China once Beijing was in ultimate charge. Now two complex legal cases are accentuating these fears in different ways. In this article, The Jakarta Post's Asia correspondent Harvey Stockwin deals with the first of them, a case arising from a media conspiracy.

HONG KONG (JP): In Hong Kong the story behind the Hongkong Standard newspaper is synonymous with missed opportunity. Owned for the last 44 years by the heiress of the Tiger Balm fortune, Sally Aw Sian, it has always been the poor cousin of the other Hongkong English-language paper, the South China Morning Post (SCMP).

Over the years that Aw Sian has owned the Standard, it has always lacked sufficient talented personnel, sufficient financial resources, and the resolute pursuit of advertisements. There is almost certainly room for a second English paper in Hongkong, if well produced, well written and well edited.

At various times the SCMP has been in dire need of stiff competition. Sadly the Standard has failed to provide it, leaving the Post with a quasi-monopolistic grip on the English- language newspaper market.

Were it not for the profitability of the Chinese-language sister paper of the Standard, the Sing Tao, the Standard would probably have had to close years ago. Now even the Sing Tao garners less profits, partly as a result of its obvious practice of self-censorship, especially in relation to events in China.

Given this unpromising background, it was perhaps inevitable that someone would dream up a corrupt device for restoring the Standard's flagging fortunes. Three executives were arrested last year for dreaming up a scheme whereby, amongst other things, an extra 10,000 copies of the Standard were printed every day, and then immediately trashed. While those copies were never sold in the marketplace, they were firmly fixed in the artificially- inflated circulation figures.

This devious conspiracy was dreamed up as an easier way of attracting more advertisements than going the legal route of producing a far better newspaper, capable of attracting increased readership.

Unfortunately for the three executives, Hong Kong's Independent Commission Against Corruption (ICAC) found out about the scam and the three were arrested for their dubious activities. Recently the case went to court and the three junior executives were all heavily fined and sentenced to short prison terms of between four and six months.

There the matter might have rested. Instead it has escalated to the point where Hong Kong has given its image, as a place where the rule of law is properly administered without fear or favor, a massive and wholly unnecessary black eye.

Right from the start, many Hongkongers reacted to the arrests by asking a simple question: why wasn't Sally Aw Sian arrested too? The natural assumption was that even in a newspaper run with an abnormal amount of inefficiency, it would be still impossible to print an extra ten thousand copies day after day -- and for the owner and chief executive to remain ignorant of this fact.

Had the government come out there and then and clearly stated that it did not have enough evidence to also indict Aw Sian, most of the suspicions and the rumors would have been put to rest as soon as they arose.

But the government did not do so. So the suspicion festered that Hong Kong already was becoming a very Chinese city, wherein what you did legally or illegally was less important than your social connections in high places.

As it happened, because of the transfer of sovereignty from Britain to China, these suspicions were already rife, well before the Sing Tao conspiracy case hit the local headlines. In advance of the handover there were deep suspicions that Hong Kong might squander the exceedingly valuable legacy which it has inherited, and which could make it unique within the Chinese-speaking world.

Within China, power and personality, and ones connections with both, traditionally have been the main considerations behind what is loosely referred to as rule by men.

The hope behind the handover was that Hong Kong could become unique, because it was adopting into a Chinese milieu two essential principles: absolute equality before the law, and the impersonal adjudication of the law.

These are, of course, the essential pillars sustaining the rule of law.

The British were not perfect teachers. There were times when the colonial rule of law was bent to serve personal expatriate interests. Nevertheless the impersonal and egalitarian rule of law took far deeper root in Hong Kong than it has been able to do in China, Taiwan or Singapore.

Yet, as the retrocession of Hong Kong to China took place, there were not lacking those -- both local residents and foreigners -- who cynically feared that, with regard to the law, Hong Kong would soon become a Chinese, rather than an international, city.

So recent events have presented a stark contrast: on the one hand, the National Peoples Congress and the Central Committee of the Chinese Communist Party (CCP) have decided that Article Five of China's constitution will be amended with the extra sentence: "The Peoples Republic of China should implement the principle of ruling the country by law, governing the country according to law and making it a socialist country ruled by law".

CCP General Secretary Jiang Zemin was quoted as saying that China should make an effort to establish a socialist legal system with Chinese characteristics by the year 2010.

How you phased out the Chinese characteristic of rule by men and connections, while phasing in the impersonal rule of law -- which China must do if it wants to be a truly modern nation -- remains a puzzle with distinctly Chinese characteristics.

But as China ostensibly tries to head in Hong Kong's direction, Hong Kong, with deep irony, has headed in China's direction.

Finally, after the ICAC had named Aw Sian as an unindicted co- conspirator, and the reason for her non-arrest had too long gone unexplained, the Secretary of Justice Elsie Leung was finally prevailed upon to offer an explanation, as a result of pressure from the Legislative Council. Most of her statement on Feb. 4 detailed the belated claim that government did not have enough evidence to charge Aw Sian along with the others.

But then, fatally, Leung added a paragraph which seemed to confirm what the suspicions and rumors had long asserted. She said that the financial difficulties faced by the Sing Tao Group, the fact that the Group was being restructured, the fear of the Group's collapse at a time of mounting unemployment, and the damaging loss of one of two English papers, were all reasons of "public interest" which were also taken into account in not arresting Aw Sian.

For the critics and doubters, the statement was capable of only one construction: there was now one law for the rich and another for lesser beings.

If you employ a lot of local people, if your big company faces complex restructuring, if you own newspapers which are generally uncritical of the government -- then you may avoid being equal before the law. Cynics had originally reacted to the Sing Tao conspiracy case by concluding that equality before the law was a diminished value for the Hong Kong government.

Amazingly, sadly, the latest government statements, with chief executive Tung Chee Hwa giving Leung his unequivocal backing, fully justified such cynicism. The Hongkong Standard now looks as if it will symbolize another, far more damaging, missed opportunity.