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

I. 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.

II. 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.

III. 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, are at the heart of the notions of "due process" and the "rule of law"--the belief that the state itself is bound by the law when dealing with individuals and institutions, and the concept of individual rights against the state.(16) While these concepts do not strictly require the now common approach of "separation of powers," the unification of powers found in socialist states has demonstrated the difficulty of obtaining the institutional neutrality in the application of law that seems so central to law as understood in the West.(17)

A. Chinese Cultural Traditions and the Chinese Legal System

Anthropologists and sociologists argue for a different, broader notion of "law" or "legal system,"(18) but they do so at the expense of obscuring that with which the Chinese themselves have struggled during the past century, and in a real sense continue to struggle with today.(19) The narrower, Western notions of what constitutes law and a legal system can be traced back to the Roman law that underpins most legal systems in the world today.(20) Even in common law countries, which never formally "received" Roman Law, the basic notion of "the rule of law" can be traced back to Roman Law influences.(21) China did not come under the influence of Roman law, however, and perhaps as a result none of the foregoing characteristics has ever been a feature of Chinese culture. Except for the short-lived experiment of the Legalists under the Chin dynasty in the Third Century BCE,(22) China has always been a non-legal culture, at least in the sense just described.

The Chinese cultural tradition, the Legalists aside, knows only a narrow concept of "law" (fa)--a concept that is essentially one of naked power designed to preserve the state.(23) (Even for the Legalists, the concept of law, while all encompassing, was more consistent with modern totalitarian concepts of law than with law as the West understands it.)(24) Thus, the dominant forms of the Chinese cultural tradition recognized only criminal sanctions.(25) Anyone who ran afoul of the Chinese legal system was by definition a threat to the state, and criminal sanctions were severe well into the twentieth century.(26) Death was the usual penalty, with variations on the nature and duration of execution as the primary techniques for attuning punishment to the crime. The most severe penalty was the notorious "death of a thousand cuts."(27)

There was no recognition of a concept of individual rights or other checks on state power in the Chinese cultural tradition.(28) A concept of individual rights was utterly alien to the Chinese cultural tradition not only because of the primacy of the state, but also because the legal and political systems centered on the principle of collective responsibility.(29) By this principle, if any member of a family was guilty of a crime, the entire family was held responsible and liable for punishment equal to that of the actual perpetrator of the crime. Because punishment for the family usually was reduced or eliminated if the family helped to apprehend and punish the actual perpetrator, the family also came to serve as the primary mechanism for enforcing the criminal law and for representing family members to the state (mandarin) bureaucracy.

There were no other checks on state power in the Chinese cultural tradition. Also, little was developed in the way of a state role in resolving strictly private disputes-in other words, there was little development of civil law.(30) Indeed, the emphasis on the torture of witnesses (including the plaintiff) in order to get at the truth(31) guaranteed that few wholly private disputes would ever come before official decision-makers. For example, the records of one county magistracy in Taiwan recorded only 222 "civil" cases between 1789 and 1895, barely more than two per year.(32) Rather, the state was popularly seen as an alien institution, often as illegitimate, and always as best avoided. This perspective was reinforced by the fact that for about 350 of the last six hundred years the government was literally in the hands of foreigners-the Mongols (the Yuan Dynasty, 1260-1368) and the Manchus (the Qing Dynasty 1644-1911).

Until the twentieth century, China was completely without specialized legal institutions. There was no professional class of experts on law, and there were no "courts" as such.(33) "Law," (as understood in China), was administered by and for the mandarin bureaucracy.(34) They made it, it served their interests, and they often operated independently from national pronouncements on "law." The mandarin bureaucracy was selected and graded through an open, competitive, written national examination system based upon the Confucian classics. The highest grades went to those who could compose the most intriguing poem, or perhaps an essay of literary criticism, during the course of the exam, with considerable emphasis on the quality of the candidate's calligraphy. Neither logic, nor geography, nor natural science was part of the examination process. The exams tested whether one had a proper understanding of social ethics and cultivated tastes. Knowledge of law (or of any other form of technical knowledge) played no role in the examination process.

The Emperor and the bureaucrats both made and enforced the rules, without any specialization of function. The bureaucrats, who were paid very little by the state, functioned in a tradition in which "gifts" (referred to as "going through the back door") were an accepted mode for influencing decision-makers. Publicly known rules with some measure of, neutrality and uniformity were simply not significant. The government generally considered what Westerners would call "laws," including the "Legal Codes" that were occasionally prepared in the Emperor's name, to be private communications between the Emperor and his functionaries, and simply no business at all of the public. The attitude toward publicly known rules is best summed up in something written by Confucius more than 2400 years ago:

If people are directed by laws (fa), and regulated by punishment, they will

try to avoid punishment but have no sense of shame; if they are directed by

virtue and regulated by ethics (li), they will have a sense of shame and so

become good.(35)

This statement expresses a theory of social order radically different from the theory that took hold in Europe and was later spread by colonialism over much of the world.(36) By this vision, if people were to be controlled by formal laws, they would conform only when they believed they could not avoid punishment, and they would set their minds to the task of evading the law through specious arguments and other devices. On the other hand, if people did not know what the law required, they would actually behave themselves either because they wanted to do good or because of fear of crossing an unknown line. No wonder that Confucius believed the role of the judge was not to decide lawsuits but to "cause lawsuits to cease in the future,"(37) or that the Chinese developed the proverb "heqing, heli, hefa"--"first follow your judgment, then follow morality, then follow the law."(38)

Because of the risks attendant on official dispute resolution, the Chinese have always depended on their families to a degree the West has not known for centuries. From early times, the Chinese turned to their families not only to mediate disputes with other family members, but also to serve as go-betweens in settling disputes with persons outside the family.(39) This dependence was enhanced by the state's principle of collective responsibility.(40) In such a family-centered, non-rule-oriented dispute settlement system, decisions simply were not made according to legal right, consistent result, or predictable outcome. Decisions were made instead according to what was best for the social functioning of the group. Convenience to the family, (both momentary and continuing) was far more important than the characteristics of decision-making that the West came to see as the hallmarks of due process and the rule of law. Even today, in the P.R.C. guanxi remains more important than even the back door (still in second place) for obtaining a favorable decision in almost any context.(41) Formal rules are simply of little relevance in people's thinking or in judicial decision-making in China.(42)

B. The Western Concept of Law in China

The Western concept of law entered China as something imposed by aggressive Western powers intent on "opening" China to the world.(43) In part because of that history, law, in the western sense, remained problematic in China under the P.R.C.(44) Just how problematic the role of law was in the early P.R.C. is illustrated by Order No. 1 of the P.R.C., issued by Mao Zedong on October 1, 1949, immediately after proclaiming the new government's creation.(45) By Order No. 1, all laws of all prior governments were abolished. According to the new regime, no law at all would be better than "bad laws." This stands in stark contrast to Lenin's first decree after the Bolshevik Coup--that all laws of all prior governments should remain in effect until replaced by new laws of the new government, unless a particular law was utterly incompatible with the principles of the new regime. But then Lenin's founding politburo was composed almost entirely of lawyers (including Lenin himself; only Stalin lacked a legal education). Mao's founding politburo contained only one person educated as a lawyer--Dong Biwu, who never exerted a major influence on the government.(46)

After some ambivalence regarding whether to build a new legal system for the P.R.C., Mao Zedong embraced a deliberate attempt to obliterate the nascent legal institutions during the Great Proletarian Cultural Revolution of 1966-1976.(47) During this period the courts were closed, law schools were closed, and lawyers and law professors were killed, imprisoned, or assigned to menial tasks. Revolutionary purity combined with Chinese cultural tradition in an attempt to create a society that could be run without law as we know it.(48) Since 1978, however, the P.R.C. has been engaged in a highly publicized program to "legalize" Chinese culture.(49)

There were two motives for this decision to create a legal structure in China: a desire to re-enter the international market, and a determination to make a second cultural revolution impossible.(50) As a result, there now exist a large number of uncodifted statutes, a "general part" of a Civil Code, and an elaborate, if infrequently used, court system. There are more than a dozen law departments at universities or free-standing legal institutes that together have graduated nearly 100,000 lawyers since the first class emerged in 1982.(51) The number 100,000 sounds large until one remembers that China has 1,250,000,000 people; China has five times as many people and only one-eighth as many lawyers as the United States.

While the government can point to significant accomplishments in its drive to legalize the culture, it is far too early to tell if the process will succeed, and if so, when.(52) To the extent that these reforms have taken hold, they can be said to have introduced rule by law rather than the rule of law.(53) One of the most striking aspects of this process is that, even after the new national law is adopted, it might be ignored in some parts of the country despite the lack of a formal dispensation for such deviance. The author's own experience, as well as published reports by others working with China, indicates that guanxi, the back door, the lack of an effective national government for nearly a century, and wide-spread opposition to the direction the reforms have taken continue to hamper the national government's attempts to impose a modern legal system on what has always been a nonlegal culture.(54) Further complicating the picture is the continued practice of judges deferring to Party policy, often as articulated by the local Party secretary to the court, as opposed to formal laws.(55) Indeed, in China even privately-employed lawyers may feel impelled to put the interests of the state and the Party first.(56)

Despite this regression, many individual Chinese are beginning to think in legalistic terms. Evidence of such a trend includes the demonstrations in Tiananmen Square that caught the world's attention in 1989.(57) More than a few dissidents have since appealed to the courts in an effort to secure the legal rights their government assures them they have.(58) These efforts have, however, only led to disappointment.(59) One can easily find any number of other good examples of the continuation of traditional cultural patterns in Chinese courts. Perhaps the most dramatic is the courts' willingness to dispense with prescribed criminal procedures for the hurried trials of several hundred "hooligans" and "counterrevolutionaries" in the days immediately after the Tiananmen Square tragedy of 1989.(60) Chinese courts have also imposed the death penalty for crimes for which no statute prescribes death when it becomes Party policy to extend the penalty to additional crimes-usually during "Anti-Crime Campaigns."(61)

The continuing Chinese willingness to ignore law is not limited to such highly politicized events as Tiananmen Square or political campaigns. The Marriage Law of 1950 has been widely praised because of its highly liberal provisions, yet for many years it was applied very conservatively.(62) While the government was the sole employer, young persons were required to obtain approval of both of their "work units" before marrying, even though no such requirement appears in the statute. This informal requirement in effect raised the age of marriage by five to ten years over the legally stipulated minimum age. Furthermore, though the Marriage Law provides for no-fault divorce, in reality, no court would grant a divorce without the consent of the "work units" of both spouses. Yet anyone could obtain dispensation from both formal statutory requirements and informal Party policies by deploying sufficient guanxi or going through the back door.

Published reports of Chinese cases, which are only gradually becoming available both in Chinese and in official English translations, do not generally reveal the continuing and pervasive role of guanxi, the back door, or Party policy. Some cases, however, do make that role clear.(63) In one case, an engineer who worked for the city was prosecuted for corruption and released based upon an unpublished Party document.(64) In another case, the Supreme People's Court relied on "some relevant law" without any specific reference to any law or Party document.(65) In such cases, it is far from clear that the losing attorney was even given the opportunity to see the document expressing the Party's policy, let alone to argue what the correct interpretation should be.

Finally, Chinese judges are not members of a profession educated in the law. Even now, few judges in the P.R.C. have a higher education degree, and few of those have had any university education in law.(66) This is hardly surprising, for even if all those now holding law degrees were to become judges, they would remain a minority among the judiciary.(67) In fact, few persons holding law degrees have become judges. As it is, only about twenty percent of all Chinese "legal workers" hold actual law degrees.(68) This reality only reinforces the Chinese judiciary's susceptibility to traditional influences and its lack of a deep sense of commitment to the rule of law. Furthermore, the author's own experience indicates that most Chinese judges do not approach difficult legal problems with any great sophistication. In particular, few Chinese judges have any notion of conflicts of law, or any interest in the possibility of applying non-Chinese law in a case where they actually would apply law. The net result is that China today remains essentially a nonlegal culture. Would one really expect cultural patterns developed over four thousand years to change after only twenty years of reform?

IV. LAW IN HONG KONG--THEN AND NOW

The government of the P.R.C. has proclaimed its intention to assure Hong Kong a high degree of autonomy to last at least fifty years under the formula yi guo, liang zhi ("one country, two systems").(69) The Beijing government even embraced a pithy Chinese slogan to express this promise: gangren zhigang--"Hong Kong people govern Hong Kong."(70) The government promised this goal in the Joint Declaration with the United Kingdom that governed the transfer of authority from the United Kingdom to China.(71) The Joint Declaration, however, was very general, leaving much to the imagination.(72) The P.R.C. reiterated its promises of autonomy in the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (hereinafter Basic Law) enacted in 1990.(73) One already knows, however, that whatever autonomy persists in Hong Kong after 1997 will not really extend to government institutions.(74)

A. Legal Preparations for Reintegration

Consistent with its agreement with the P.R.C., the colonial regime authorized the 1995 election of a Legislative Council in hopes that the Council would continue to serve through 1999, thus straddling the transition to Chinese rule. The Legislative Council comprised twenty members elected to represent "functional constituencies," ten appointed by an Election Commission, and thirty elected to represent geographic constituencies.(75) "Functional constituencies" represented professional and business groups; this system gave those holding the franchise for functional constituencies two votes, one for their geographic representative and one for their functional representative. Those who did not qualify for a professional group had only one vote. The number of persons who could vote for a functional representative varies widely, with less than five thousand barristers and solicitors electing one member, while members elected by geographic constituencies represented about 200,000 voters each.(76) The smallest functional constituency had only thirty-nine voters, and the largest had 487,000.(77) This then was hardly a democratic body, and it was already controlled by a working majority (representing a minority of voters) favorable to the P.R.C.(78) Nonetheless, the elected Legislative Council was apparently not compliant enough for the government in Beijing, which abolished it and replaced it with an entirely appointed council more to its liking.(79) Although the appointed "Provisional Legislative Council" includes thirty-three members of the elected Legislative Council it will replace, and although members of the Democratic Party formed the largest group (nineteen members) of the elected Legislative Council, no members of the Democratic Party were appointed to the Provisional Legislative Council.(80) Not surprisingly, fifty-one of the sixty people appointed to the Provisional Legislative Council had worked directly for Beijing, generally in advisory capacities.(81) In several instances, a candidate who had lost in the 1995 elections was appointed to replace the person who had been elected.(82) Even so, the Provisional Legislative Council is sometimes difficult for the executive to control,(83) making it all the more important to the new authorities that they control the election of the next Legislative Council.

The current proposal before the Provisional Legislative Council is to hold elections in May 1998 under the same formula of twenty persons represented by geographic constituencies, thirty by functional constituencies, and ten appointed by an eight hundred member Election Commission.(84) This proposal assures that, even if the political opponents of the regime were to sweep the elections, they would be a minority in the legislature.(85) This is made all the more certain as the franchise for the functional constituencies will be reduced from the 2,700,000 who were able to vote for these offices in 1995 to only 180,000 (out of nearly 7,000,000 people).(86)

The P.R.C. also indicated several years ago that it would unilaterally determine which of the present civil servants in the colony will continue to hold their positions after the transition to Chinese rule(87)--despite a promise in the Joint Declaration that "foreign nationals previously working in the public and police services . . . may remain in employment."(88) While there has not been a wholesale purge of the civil service, the police, or the lower echelons of government councils and boards thus far,(89) nothing in the government's pronouncements contradicts the earlier announced position. Furthermore, the opposition of the Beijing government to any real autonomy or democracy in Hong Kong, as well as to the rule of law, was demonstrated most clearly in its consistent objection to any change, no matter how small, in the way the Hong Kong colonial government conducted its business if such change would increase the accountability of the government to the people.(90)

B. Prospects for the Survival of the Rule of Law in Hong Kong

The rule of law arrived in Hong Kong long before there was an elected Legislative Council,(91) and it could, theoretically, survive the abolition of the elected Legislative Council. The signs that this will happen are not positive. Despite its repeated assurances of the continuation of the common law system in Hong Kong,(92) the P.R.C. has also indicated quite directly that its assertion of control applies to the courts as well as to the other branches of the Hong Kong administration. In the Joint Declaration, China agreed that the Hong Kong Special Administrative Region (hereinafter Hong Kong SAR) would have an "independent judicial power, including that of final adjudication."(93) Consistent with this promise, the Basic Law requires for the continuation of the British court system, with the addition of a new Court of Final Appeal to replace appeals to the Privy Council in London.(94) The Basic Law provides that the Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court be Chinese citizens who are residents of Hong Kong and hold no foreign passport.(95)

The Hong Kong legal profession strongly supported having two of the five judges of the Court of Final Appeal drawn from a pool of foreign, common law judges to assure a continuing influence of experienced common law judges, the great majority of whom are not Chinese.(96) This desire was ignored by both the British and the Chinese governments. The 1991 Sino-British agreement limits the Court of Final Appeal to only one foreign judge.(97) This limitation is contrary to the wishes of the people of Hong Kong as expressed through their representatives if one takes into account the number of voters represented in the various constituencies. The Chinese government also blocked the effort to put the Court of Final Appeal in place one year before the handover, thus assuring Chinese control over appointment to the court and the utter lack of experience or precedents for the court when it is established under Chinese authority.(98)

The P.R.C. has also undertaken partial repeal of the recently enacted Hong Kong Bill of Rights and restrictions on the functioning of private organizations and on demonstrations without official approval.(99) Nor does Beijing accept Hong Kong's Court of Final Appeal as the actual final court of appeal for litigation in Hong Kong. Instead, final review, at least of questions turning on the interpretation of the Basic Law, will be in Beijing.(100) Moreover, as the experience of American constitutional law amply demonstrates, lawyers can turn almost any question into a question of constitutional interpretation if they set their minds to it.(101)

The leaders of the legal profession in Hong Kong whom the author has met have consistently expressed a touching faith in the value and importance of the Basic Law. They are correct; the Basic Law is important. But they read it like common lawyers, and English common lawyers at that. They are quite literalistic,(102) and, as one informant explained to the author off the record, they make a fetish of words on a piece of paper. They do not confront, at least not openly, the reality that the ultimate interpretive authority lies with the Standing Committee of the National People's Congress in Beijing.(103) That body is not trained in the law, and is composed of people who, to the extent they are familiar with legal thinking at all, think in civil law modes rather than common law modes.(104) The civil lawyer has always tended to read legal documents, including codes and constitutions, far more loosely than have common lawyers.(105) Moreover, nothing in the Chinese cultural tradition inclines Chinese officials toward a more legalistic approach to legal interpretation than is found in Western civil law countries.

Even if, as many jurists, barristers, and solicitors in Hong Kong fervently hope, the Standing Committee of the National People's Congress leaves all or nearly all interpretation of the Basic Law to courts in Hong Kong, the utility and significance of the Basic Law is far from clear. The courts in Hong Kong are staffed by judges who have shown themselves by and large to be temperamentally unsympathetic to the idea that either constitutions or international agreements can limit the all powerful legislature.(106) The Privy Council has reversed Hong Kong court decisions routinely in recent years for failure to consider the Hong Kong Bill of Rights.(107) The notion of Parliamentary supremacy lives on in Hong Kong even as it dies in Britain.(108) And if judges will not speak for the Basic Law, the Basic Law is dead.(109)

C. Changes to Freedoms in Hong Kong

The foregoing changes will affect not only the appearance of justice in Hong Kong, but actual freedoms as well. Chinese officials have openly proclaimed their determination to suppress "hostile political forces" if they attempt to become active in Hong Kong.(110) It is clear that at the least this precludes the open advocacy of independence for Hong Kong, Taiwan, or Tibet.(111) The legal basis for such steps is found in Article 23 of the Basic Law, which provides that the Hong Kong SAR "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion . . . . or the theft of state secrets . . . ."(112) If the yearning for democracy and the rule of law in Hong Kong (the so-called Hong Kong virus) begins to infect the mainland, Beijing's concept of "hostile political forces" could become quite broad indeed.(113) No wonder as many as eighty of the more than three hundred dissidents from the P.R.C. who have been living in Hong Kong have sought asylum in other countries.(114)

Pressures from mainland sources (not, primarily, the government leadership in Beijing) are already fostering a spreading corruption.(115) There are reports of growing corruption among the Hong Kong police, hitherto considered among the least corrupted police forces in the world.(116) Observers attribute this to the growing influence of mainland Chinese elements sent to begin coordinating the activities of the Chinese and Hong Kong police. There was in fact considerable evidence (including the aforementioned instances of press self-censorship) that conditions were changing for the worse in Hong Kong even before the P.R.C. took over.(117)

These examples, whether of corruption or of self-censorship, suggest that perhaps the greatest worry is not that Beijing will intercede crudely in the workings of Hong Kong institutions--despite the interventions we have already seen. Rather, the greater danger is that the residents of Hong Kong will seek to anticipate what Beijing will want and seek to provide it without checking with Beijing.(118) In so doing, they might go much further in restricting their own liberties and corrupting their system than even Beijing would like. Once taken, such steps are not easy to undo. Moreover, one cannot be entirely confident that the Bar or the Law Society will continue to resist such actions. Just consider that Hong Kong today has 626 barristers, an increasing number of whom must supplement their income with non-legal employment.(119) The same is true of a growing number of the 4200 solicitors.(120) Can they all be expected to stand firm in the face of the temptation to improve their careers by doing what they believe will please Beijing?

D. Re-emergence of Chinese Cultural Patterns

Perhaps even more important is the reality of Chinese cultural patterns resurfacing now that British rule has passed.(121) The most telling portent in this regard was a brief exchange, off the record, which most clearly illustrates how traditional the thinking of even very westernized Hong Kong residents can be. A government official in Hong Kong who had spoken most emphatically about the importance of the rule of law, and about how the rule of law, not of men, must be maintained in Hong Kong after the British leave, just moments later asked the delegation if the American Bar Association could use its influence on U.S. courts to reverse a particular case.

Nowhere will the effect of such a cultural transition be more profound than on the judiciary which, as already noted, has already become overwhelmingly ethnic Chinese in composition.(122) Some of those judges will be tempted to please Beijing, and even where judges are not so tempted, one would be foolish not to anticipate that these judges will increasingly reflect Chinese ways of thinking instead of the traditionally English norms they have heretofore followed. No one can state confidently how soon such changes will occur or how far they will go, but if they proceed far enough one can no longer expect a trial consistent with even the most elementary notions of due process, either procedural or substantive.

Consider in this regard the recently decided case of Hong Kong Special Administrative Region v. Ma Wai-Kwan.(123) David Ma, whose Chinese name is Ma Wai-Kwan, along with two defendants, was charged with "conspiracy to pervert the course of justice" based upon events that occurred in 1995. Specifically, it was alleged that two of the defendants offered Ma money if he would plead guilty to a crime for which one of the other defendants was charged.(124) They were indicted in January 1997, and the trial began on June 16, 1997. On the tenth day of the trial, July 3, 1997, the defendants moved to quash the indictments on the ground that the transition to Chinese rule on July 1 had abrogated the common law. The question of law raised by this motion was certified to the Court of Appeal for its immediate determination. The issue presented was whether the defendants could be charged with a common law crime after the transfer of authority to the P.R.C.(125)

The Ma case raised important legal questions. Indeed, Gladys Li (the immediate past President of the Bar Association), aided by two other leading barristers (Margaret Ng and Paul Harris), appeared pro bono to represent the defendants before the Court of Appeal when the defendants' original barristers asked to be released from the case for lack of funds.(126) Funds were lacking because the government refused to allow legal aid funds to be used for the challenge.(127) In actuality, however, there could be little question about the correct answer to the legal question of the common laws survival. The Basic Law repeatedly and expressly preserved the law in effect on June 30, 1997, unless such law was expressly disapproved by the Standing Committee of the National People's Congress.(128) On February 23, 1997, the Standing Committee disapproved the Application of English Law Ordinance.(129) The court found that this disapproval did not mean the common law was abrogated, but merely that the Ordinance was disapproved because it contained references to certain "imperial acts" that would no longer be applicable.(130) The disapproval simply did not overrule the clear intent in the Basic Law to keep the common law in effect unless or until replaced by statute.

The issue regarding the common law's survival was an obviously important, but not particularly difficult, issue. Having resolved that question, the court then turned to the question of whether the trial could be continued before the Court of First Instance given the defendants' argument that the court was not legally constituted.(131) The Court of First Instance took office on July 1, 1997 on the basis of an ordinance enacted by the Provisional Legislative Council (hereinafter P.L.C.).(132) The Court again resolved this question rather easily on the basis of express provisions in the Basic Law which continued the courts as they were before the handover.(133) The indictments were upheld as valid according to a Basic Law provision for the continued validity of documents, rights, and obligations after the handover.(134)

Having determined the foregoing questions, the court had nothing further left to decide of significance to the case's outcome-as Li pointed out to the court.(135) Nonetheless, all three jurists went ahead to decide the status of the P.L.C., as requested by Hong Kong's Solicitor General, Daniel Fung. The court held that acts or decisions of the Beijing authorities could not be questioned before a court in Hong Kong, regardless of how obviously such acts or decisions might violate the Constitution of the P.R.C., the Joint Declaration, or the Basic Law.(136) in fact, Chief Judge Chan went so far as to say that it is "the duty of the Hong Kong courts to ensure that the legislation or imperial act is implemented" with an inquiry limited to whether the decision or act actually exists.(137) Once it is accepted that Hong Kong courts lack the power to question the validity of decisions or acts of the sovereign (in this case represented by the "Preparatory Committee" that managed the transition from the Chinese side), the legal status of the P.L.C. is beyond dispute.(138)

Predictably, this last conclusion is the one that generated the most interest, both in Hong Kong and abroad, at least judging from the press coverage.(139) Others took the decision to amount to a virtual abandonment of the promised "autonomy" for the Hong Kong SAR.(140) Critics of the decision could take some solace from the fact that it clearly was not part of the case's holding.(141) Nonetheless, one would have to be an optimist indeed to believe that a case that actually presented the issue would be decided any differently. The court clearly had all the relevant arguments ably presented, and the court simply chose to ignore them. This is most apparent in the opinion of Judge Nazareth, who used strong language to bolster an obviously weak conclusion:

[I]t is difficult to avoid the conclusion that the Preparatory

Committee is a creature of the sovereign, i.e., the NPC [the National

People's Congress]. It must follow, in the absence of any other law

or principle, none having been brought to notice, that this Court

cannot inquire into the constitutionality of the PLC [the Provisional

Legislative Council].... Although I am driven to the conclusion I

have expressed, I cannot say that I have come to it without

hesitation. . . . The analogy between the NPC and the British

"sovereign" upon further examination may not hold in material

respects. There is a written constitution in China, and presumably

nothing that corresponds to the Royal Prerogative. Nor has there

been a detailed review of the PRC constitution (that] might bear

upon the matter. While, therefore, I find myself unable to resist

the conclusion expressed upon the actual submissions made to the

Court, I find it unnecessary to say that even though the foregoing

be obiter, it should not be regarded as a concluded view.(142)

Despite the confusing multiple negatives in the last quoted sentence, Judge Nazareth's point is clear: The issue has been concluded and will not be reconsidered no matter how obviously wrong the propositions were as a matter of law.(143) One would have been surprised, of course, had the court chosen to defy Beijing openly by declaring the P.L.C. illegal; a contrary decision would have induced legal chaos, and it would have been absurd for a court whose authority arguably derives from a P.L.C. ordinance to declare that body and all it enacts to be legally void.(144) Equally surprising, however, is that the court unanimously chose to reach out at the first opportunity for an issue that simply was not before it, apparently to assure the Communist authorities' approval for the Hong Kong judiciary. If so, and if the decision signals the likely attitude of the Court of Final Appeal, the decision portends a rather more rapid descent into judicial deference to Party policies than one might have hoped.

The Ma case might not be such an ominous portent. Rather than signaling a judiciary willing to go to great lengths to curry favor in Beijing, the decision might instead suggest that these jurists were simply so resistant to the possibility of exercising judicial review power that they felt impelled to make clear that they would reject any invitation to exercise such power.(145) If that is the real significance, then the Ma case might not portend a possible general decline of judicial integrity and the independence of the Hong Kong judiciary. The case would, however, if the Court of Final Appeal accepts the Court of Appeal's conclusions, signal an utter abandonment by the Hong Kong judiciary of any attempt to defend the guarantees of democracy, freedom, and the rule of law contained in the Joint Declaration or the Basic Law. It is unlikely that the Court of Final Appeal will offer to get a clear reading on such questions any time soon. The Court of Final Appeal would obtain the political benefits of the decision without doing anything other than declining to hear a further appeal of the case. That reality explains the decision of Gladys Li and her associates not to appeal the Ma case to the Court of Final Appeal.(146) This leaves the Court of Appeal's opinions as the last word on these questions until a case arises in which the Court of Appeal cannot duck the questions of judicial review and of the status of the P.L.C. On either reading of the three opinions in the Court of Appeal, the future of legality in Hong Kong looks bleak.

V. IMPLICATIONS FOR THE UNITED STATES--AND ELSEWHERE

This Articles does not predict a dramatic and immediate overturning of law in Hong Kong shortly after July 1, 1997, let alone some sort of Tiananmen Square bloodbath in Hong Kong. Rather, judges, whose appointment will be subject to the approval of Beijing, will come under pervasive and intense pressure not to offend those who are well connected to the new government--those who have good guanxi whether through blood links, Party links, or back door links.(147) As attorney Frankie Leung recently commented, "a Hong Kong judge may have to think twice if he decides to rule against a powerful litigant, whether it is the government or a commercial entity backed by government interests. If that occurs, even at a subtle or subconscious level, the principle of equality before the law will be seriously undermined."(148) Leung, of course, understates the matter. The result will be the gradual whittling away of the entire legal structure in Hong Kong.(149)

China has profited and stands to profit further from a prosperous and vibrant Hong Kong.(150) This gives strong reasons for hope that China will seriously attempt to fulfill its promises regarding the autonomy of Hong Kong and the survival of the rule of law there.(151) The problem is not that the government in Beijing or regional authorities in the south of China or in Hong Kong are hostile to the rule of law, but rather that they do not understand it.(152) Misunderstanding the importance of law and the legal system, these officials are likely to do things inadvertently that undermine or destroy the rule of law.(153) But, if the significance of Hong Kong is money making, should it matter whether Hong Kong courts and lawyers begin to function more like courts and lawyers in the P.R.C.? Perhaps not, except for those foolish enough to oppose the state.(154) Some businesspeople are quite explicit in their disdain for lawyers and legal process in Hong Kong as well as in the United States.(155) These same businesspeople already function successfully in the P.R.C., why should things be any different in Hong Kong.? They might be right.(156) Most observers, however, including many in business, disagree.(157) It pays to remember that those functioning successfully in the P.R.C. often base their activities in Hong Kong precisely to obtain the advantages of the rule of law.(158) Even some mainland Chinese businesspeople have indicated their preference for the law-based system in Hong Kong.(159) Given the high real estate and labor costs of doing business in Hong Kong, if the costs of establishing and maintaining guanxi rise further while the advantages fall as the legal system becomes less reliable, will those businesspeople choose to stay in Hong Kong, or will they, as many already have, move their operations elsewhere?(160) Such concerns probably explain why more than half of the 529 companies listed on the Hong Kong Stock Exchange have moved their legal domiciles out of Hong Kong--many to Bermuda or the British West Indies, but others to the United Kingdom or elsewhere.(161) So many lawyers migrated from Hong Kong to Singapore in the early 1990s that Singapore felt impelled to tighten its regulations for licensing foreign lawyers to practice in Singapore.(162) Whether to continue to base operations in Hong Kong is a question that American firms with Hong Kong offices (including law firms) and the thirty-seven thousand Americans living there may well ask themselves in the not too distant future.(163)

In 1997, at least, it would appear that the whole world is watching.(164) Even the U.S. Congress apparently considers the success of the "one country, two systems" formula of crucial importance for the United States as well as for the P.R.C. and Hong Kong. By a vote of 416-1, the House of Representatives approved a resolution in March 1997 calling on the P.R.C. to honor its treaty obligations to Hong Kong.(165) Watching, however, will not be enough. The whole world watched as Tibet was crushed in 1959, and as students were massacred in Tiananmen Square in 1989. More concrete steps are necessary if China is to restrain itself and its minions and preserve the rule of law in Hong Kong.

Despite the apparent commitment of the United States and other nations(166) that may be "committed" to supporting democracy and the rule of law in Hong Kong, their behavior does not comport with that commitment. Martin Lee, leader of the Democratic Party in Hong Kong, has accused foreign governments (and business leaders) of looking at Hong Kong through "starry eyes" fixed on the "huge Chinese trade pie."(167) Lee suggests not that governments ignore the Chinese market, but that they recognize the link between the free flow of information, the legal security of persons and property in Hong Kong, and Hong Kong's role in driving the evolution of the Chinese economy. As Lee points out, the Joint Declaration is an international agreement that commits China internationally to providing freedom and legal security to Hong Kong, thus making international interest in Hong Kong clearly distinguishable from international support for Taiwan or concern about Tibet.(168)

The U.S. Congress in 1992 enacted a law requiring the President to take the strong steps necessary to support Hong Kong's autonomy and the rule of law in the United States-Hong Kong Policy Act.(169) The act authorizes the U.S. government to treat Hong Kong as a separate international entity for purposes of trade and economics, and keeps U.S. laws and international agreements in effect after July 1, 1997--"unless and until terminated in accordance with law."(170) The most recent manifestations of this mandate to deal directly and separately with Hong Kong are a new extradition agreement with the colonial authorities that will remain in place after the handover to the Chinese authorities and an agreement for the transfer of persons convicted of crimes.(171) On the other hand, the agreement to retain a U.S. consulate in Hong Kong (and another in Macau) was signed with the P.R.C. rather than with the local authorities.(172) The United States-Hong Kong Policy Act authorizes the President to terminate this separate treatment of Hong Kong (vis-a-vis the P.R.C.) if Hong Kong loses the autonomy promised in the Joint Declaration so that it no longer functions in fact as a separate or autonomous entity.(173) The act further requires the Secretary of State to report to Congress periodically on conditions in Hong Kong.(174) Whether such steps will actually be implemented remains to be seen.

VI. CONCLUSION

Much is at stake in Hong Kong. Hong Kong will change, and the P.R.C. will change. In so changing, each win probably move toward the other.(175) How far each will move is far from determined.(176) In Hong Kong, a well-functioning system of courts will be under intense pressure to devolve into a system where favoritism and worse problems flourish. The United States (and elsewhere) needs to be on guard about such developments, to encourage those favorable to the rule of law as well as to guard against developments inimical to our own self-interests. If the rule of law is to be retained in Hong Kong and democracy is to be achieved, governments must be willing to speak out forthrightly to the Chinese regarding their violations of the Joint Declaration or the Basic Law.

(1.) REPORT OF THE ILEX BRIEFING TRIP TO HONG KONG, (Joseph W. Dellapenna ed., forthcoming 1997).

(2.) Donna Deese Skeen, Comment, Can Capitalism Survive under Communist Rule? The Effect of Hong Kong's Reversion to the People's Republic of China in 1997, 29 INT'L LAW. 175, 201 (1995); Jonathan Alter, A time of Long Goodbyes, NEWSWEEK, May 19, 1997, at 51; Peter Goodspeed, Hong Kong's Notions of Media Freedom Already Colliding with China's Caution, TORONTO STAR, Nov. 4, 1993, at A21, available in 1993 WL 7286467; Johanna McGeary, One Country, Many System: The Big Handover, TIME, June 30, 1997, at 36, 41; Peter Stein, Details, Details: China Faces Host of Issues Before Hong Kong Takeover, ASIAN WALL ST. J., July 1, 1996, at 1, available in 1996 WL 10217035.

(3.) See, e.g., Ian Buruma, Holding Out in Hong Kong, N.Y. REV. BOOKS, June 12, 1997, at 54, 58, Prepared Statement by Mike Jendrzejczyk, Washington Director Human Rights Watch, before the Senate Foreign Relations Committee Subcommittee on East Asia and Pacific Affairs, FED. NEWS SERV., Apr. 24, 1997, available in LEXIS, News Library, FEDNEW File.

(4.) "Pro-Beijing" Journalist Appointed ATV News Controller, EASTERN EXPRESS, June 8, 1994, at 3.

(5.) Carrie Lee, Lai to Quit Giordano board; Beijing Closes Store over attack on Li Peng, S. CHINA MORNING POST, Aug. 9, 1994, at 1, available in LEXIS, News Library, SCHINA File.

(6.) Michael Elliott & Dorinda Elliott, Why the World Watches: How China Treats Hong Kong Will Reveal Its True Face, NEWSWEEK, May 19, 1997, at 30, 34.

(7.) Kristin Choo, Zero Hour for Hong Kong, A.B.A. J., May 1997, at 70, 71 (noting the vulnerability of Hong Kong business people to the discretion of the mainland Chinese); John McDermott, Vie "Rule of Law" in Hong Kong after 1997, 19 LOY. L.A. INT'L & Comp. L.J. 263, 284 (1997) (reporting that Beijing closed a branch of a Hong Kong-based clothing store after a magazine published by the owner of the store criticized Premier Li Peng); Skeen, supra note 2, at 202 (noting the application of the same tactics to business people that are used to intimidate journalists). See Buruma, supra note 3, at 61 (reporting about a businessman who lost his firm and was jailed for breaking a law enacted after his acts).

(8.) The point is stressed by Chinese commentators. See, e.g., Yash Ghai, Vie Rule of Law and Capitalism: Reflections on the Basic Law, in FOREIGNERS IN CHINESE LAW 221, 234-43 (Tahirih V. Lee ed., 1997): Wu Naitao, The Course of Hong Kong's Return, BEIJING REV., June 23, 1997, at 9, 15. See also Buruma, supra note 3; Edward A. Gargan, A Partly Alien Place Joins China Today, N.Y. TIMES, June 30, 1997, at A1.

(9.) Joseph W. Dellapenna, Introduction, in REPORT OF THE ILEX BRIEFING TRIP TO HONG KONG, supra note 1.

(10.) See generally Ann D. Jordan, Lost in the Translation: Two Legal Cultures, the Common Law Judiciary and the Basic Law of the Hong Kong Special Administrative Region, 30 CORNELL INT'L L.J. 335 (1997) (discussing the conflicting characteristics of Hong Kong's and China's legal systems and their effect on the Basic Law in post-handover Hong Kong).

(11.) Charlotte Parsons, Plum Blossom too Titillating for Readers, S. CHINA MORNING Post, Mar. 9, 1997, at 1, available in LEXIS, News Library, SCHINA File.

(12.) Id.

(13.) See Ghai, supra note 8, at 234-39; Robert C. Berring, Farewell to All That, 19 LOY. L.A. INT'L & COMP. L.J. 431, 443-44 (1997); Jane Kaufman Winn, Relational Practices and the Marginalization of Law: Informal Financial Practices of Small Businesses in Taiwan, 28 L. & SOC'Y REV. 193 (1994). See generally CONTRACT, GUANXI, AND DISPUTE RESOLUTION IN CHINA (Tahirih V. Lee ed., 1997). This is a general cultural pattern throughout eastern Asia, not a pattern that is limited to China. See, e.g., Daniel Y. Jun, Note, Bribery among the Korean Elite: Putting an End to a Cultural Ritual and Restoring Honor, 29 VAND. J. TRANSNAT'L L. 1071, 1084-85 (1996).

(14.) See Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Apr. 4, 1990, arts. 8, 109, 29 I.L.M 1511 (1990) [hereinafter Basic Law]; Joint Declaration Of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, para. 3(3), Sept. 26, 1984, U.K.-P.R.C., 23 I.L.M. 1366, 1371 (1984) [hereinafter Joint Declaration]; Linda Choy, Tung Pledge on Law, S. CHINA MORNING POST, Aug. 2, 1997, at 1, available in 1997 WL 2273156; Lu Ping, Hong Kong to Maintain Prosperity & Stability, BEIJING REV., Feb. 17, 1997, at 18-21; Speech by President Jiang Zemin at the Party Celebrating the Establishment of the Hong Kong Special Administrative Region of the People's Republic of China, BEIJING REV., July 21, 1997, at 16-18 [hereinafter Speech of President Jiang Zemin]. See also Daniel Fung, Foundation for the Survival of the Rule of Law in Hong Kong--The Resumption of Chinese Sovereignty, 1 UCLA J. INT'L L. & FOREIGN AFF. 283, 296-99 (1996); Speech by President Jiang Zemin at the Public Gathering to Celebrate Hong Kong's Return, BEIJING REV., July 21, 1997, at 27, 29 (stressing that the Hong Kong Special is likely to become steadily stronger as British rule recedes in time. Administrative Region must be administered in accordance with law). See generally Michael C. Davis, Constitutionalism in Hong Kong: Politics versus Economics, 18 U. PA. J. INT'L ECON. L. 157, 157-66 (1997).

(15.) Joseph W. Dellapenna, The Role of Legal Rhetoric in the Failure of Democratic Change in China, 2 BUFF. J. INT'L L. 231, 236-37 (1996). See generally HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983). MAX WEBER ON LAW IN ECONOMY AND SOCIETY (Max Rheinstein trans. & ed., 1954); PETER STEIN & JOHN SHAND, LEGAL VALUES IN WESTERN SOCIETY (1974); Ding Xueliang, Xiandaihua lilundi yuanyuan he gainian goujia [The Origin and Conceptual (Framework) of "Modernization" Theory], ZHONGGUO SHEHUI KEXUE, Jan. 1988, at 65; Jiang Xun, Zhongguo falu wenhuadi xiandaihua [The Modernization of China's Legal System], 7 FAXUE 12 (1987).

(16.) See also Steven L. Chan, Differences between British and Chinese Views of Law Forebode Uncertainties for Hong Kong's People after the 1997 Transfer, 15 UCLA PAC. BASIN L.J. 138, 181-83 (1996); Jordan, supra note 10, at 341-45; Anthony Neoh, Hong Kong's Future: The View of a Hong Kong Lawyer, 22 CAL. W. INT'L L.J. 309, 341 (1992).

(17.) See, e.g., Chin Kim, The Modern Chinese Legal System, 61 TUL. L. REV. 1413, 1420-26 (1987); Hikota Koguchi, Some Observations about "Judicial Independence" in Post-Mao China, 7 B.C. THIRD WORLD L.J. 195 (1987); Hiroshi Oda, The Procuracy and the Regular Courts as Enforcers of the Constitutional Rule of Law: The Experience of East Asian States, 61 TUL. L. REV. 1339, 1354-62 (1987); Li Buyun, Certain Questions Concerning the Relationship between Party Policies and State Laws, 3 FAXUE JIKAN 3 (July 1984): Agatha Ngai, Lawmakers Angry at Lack of Enforcement, S. CHINA MORNING POST, Mar, 15, 1997, at 9, available in LEXIS, News Library, SCHINA File.

(18.) See, e.g., VILHELM AUBERT, IN SEARCH OF LAW: SOCIOLOGICAL APPROACHES To LAW (1983): DONALD BLACK, THE BEHAVIOR OF LAW (1976): ROBERT COTTERELL, THE SOCIOLOGY OF LAW: AN INTRODUCTION (1984); EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW (Walter L. Moll trans., 1936); ROBERT L. KIDDER, CONNECTING LAW AND SOCIOLOGY: AN INTRODUCTION TO RESEARCH AND THEORY (1983); VICTOR H. LI, LAW WITHOUT LAWYERS (1978); LAWRENCE ROSEN, THE ANTHROPOLOGY OF JUSTICE: LAW AS CULTURE IN ISLAMIC SOCIETY (1989).

(19.) See generally RONALD C. KEITH, CHINA'S STRUGGLE FOR THE RULE OF LAW (1994); Dellapenna, supra, note 9.

(20.) See BERMAN, supra note 15; HERBERT F. JOLOWICZ, ROMAN FOUNDATIONS OF MODERN LAW (1957); PETER STEIN, THE CHARACTER AND INFLUENCE OF THE ROMAN CIVIL LAW: HISTORICAL ESSAYS (1988).

(21.) See, e.g., T.E. SCRUTTON, THE INFLUENCE OF THE ROMAN LAW ON THE LAW OF ENGLAND (Fred B. Rothman & Co. 1985). See generally MICHAEL H. HOEFLICH, ROMAN AND CIVIL LAW AND THE DEVELOPMENT OF ANGLO-AMERICAN JURISPRUDENCE IN THE NINETEENTH CENTURY (1997).

(22.) The "Legalists" were one of several contending schools of political philosophy in the five centuries before the common era. Their ideas were put into practice by the short-lived Qin dynasty that first effectively unified China. See generally William P. Alford, Vie Inscrutable Occidental? Implications of Roberto Unger's Uses and Abuses of the Chinese Past, 64 TEX, L. REV. 915 (1986).

(23.) See generally HYUNG KIM, FUNDAMENTAL LEGAL CONCEPTS OF CHINA AND THE WEST (198 1); LAW, THE STATE, AND SOCIETY IN CHINA (Tahirih V. Lee ed., 1997); ANDREW J. NATHAN, CHINESE DEMOCRACY 107-32 (1985); Berring, supra note 13, at 441-43; Benjamin Schwartz, On Attitudes towards Law in China, in GOVERNMENT UNDER LAW AND THE INDIVIDUAL 27-39 (Milton Katz ed. 1957): Alford, supra note 22.

(24.) Alford, supra note 22, at 944-48.

(25.) See GEOFFREY MACCORMACK, TRADITIONAL CHINESE PENAL LAW (1990) (discussing the social, intellectual and administrative background of Chinese Penal law); Clive Ansley, Chinese Criminal Law under Manchus and Marxists, 20 UNIV. BRIT. COLUM. L. REV. 165 (1986).

(26.) MACCORMACK, supra note 25, at 100-33.

(27.) Id. at 103; GEOFFREY MACCORMACK, THE SPIRIT OF TRADITIONAL CHINESE LAW 28, 46, 196 (1996).

(28.) R. Randle Edwards, Civil and Social Rights: Theory and Practice in Chinese Law Today, in HUMAN RIGHTS IN CONTEMPORARY CHINA 41, 42-47 (R. Randle Edwards et al. eds., 1986).

(29.) MACCORMACK, supra note 25, at 119-25.

(30.) PHILIP C.C. HUANG, CIVIL JUSTICE IN CHINA: REPRESENTATION AND PRACTICE IN THE QING (1996) [hereinafter HUANG, CIVIL JUSTICE IN CHINA]; KEITH, supra note 19, at 40-41, 47; MACCORMACK, supra note 25, at 81-82; Philip C.C. Huang, Codified Law and Magisterial Adjudication in the Qing, in CIVIL LAW IN QING AND REPUBLICAN CHINA 142 (Kathryn Bernhardt & Philip C.C. Huang eds., 1994) [hereinafter Huang, Codified Law]; Jing Junjian, Legislation Related to the Civil Economy in the Qing Dynasty, in CIVIL LAW IN QING AND REPUBLICAN CHINA, id, at 42; Yu Ronggen, Zongguo guyou fawenhua jiqi zai jintiade weizhi [The Current Position of China's Ancient Legal Culture], 4 XINAN SHIFAN DAXUE XUEBAO 7 (1991). See also Hugh T. Scogin, Jr., Civil "Law" in Traditional China: History and Theory, in CIVIL LAW IN QING AND REPUBLICAN CHINA, supra, at 13 (arguing that civil law existed if one considers informal practices only tangentially related to formal institutions).

(31.) MACCORMACK, supra note 25, at 83-86.

(32.) Mark A. Allee, Code, Culture, and Custom: Foundations of Civil Case Verdicts in a Nineteenth-Century County Court, in CIVIL LAW IN QING AND REPUBLICAN CHINA, supra note 29, at 122-23. See also Huang, Codified Law, supra note 30.

(33.) See MACCORMACK, supra note 25, at 78-81. See also Melissa A. Macauley, Civil and Uncivil Disputes in Southeast Coastal China, 1723-1820, in CIVIL LAW IN QING AND REPUBLICAN CHINA, supra note 30, at 85 (describing the activities of "litigation brokers" who functioned in Imperial China, but lacked official standing and were often prosecuted for stirring up needless litigation).

(34.) On the mandarin bureaucracy generally, see MAX WEBER, THE RELIGION OF CHINA: CONFUCIANISM AND TAOISM 114-70 (Hans H. Gerth ed. & trans., 1951).

(35.) CONFUCIUS, LUNYU [THE ANALECTS], reprinted in SISHU [The Four Books] Bk. 2, at 146 (1962) (translated by the author).

(36.) See generally KEITH, supra note 19, at 43-47 (comparing Confucianism with Legalism); SYBILLE VAN DER SPRENKEL, LEGAL INSTITUTIONS IN MANCHU CHINA 30-31 (1962); Chan, supra note 16, at 174-77 (discussing the role of Confucianism in China's view on law); Schwartz, supra note 23, at 27-39.

(37.) CONFUCIUS, supra note 35, Bk. 12, ch. 12.

(38.) Tahirih V. Lee, Introduction, in CONTRACT, GUANXI, AND DISPUTE RESOLUTION IN CHINA, supra note 13, at xiii, xviii n. 1 (translated by the author).

(39.) See KEITH, supra note 19, at 41-43; Jerome Alan Cohen, Chinese Mediation on the Eve of Modernization, 54 CAL. L. REV. 1201, 1216 (1966): Ren Jianxin, Mediation, Conciliation, Arbitration and Litigation in the People's Republic of China, 15 INT'L Bus. LAW. 395, 395 (1987); Zhang Ji[n]fan et al., Zhongguo gudai falu lungang [An Outline of China's Ancient Legal Culture], 5 ZHENGFAN LUNTAN 59 (1991), Stanley Lubman, Mao and Mediation: Politics and Dispute Resolution in Communist China, 55 CAL. L. REV. 1284, 1287 (1967).

(40.) See supra text accompanying notes 28-29.

(41.) See generally CONTRACT. GUANXI, AND DISPUTE RESOLUTION IN CHINA, supra note 13; Jun Ge, Mediation, Arbitration, and Litigation: Dispute Resolution in the People's Republic of China, 15 UCLA PAC. BASIN L.J. 122 (1996); Stanley B. Lubman & Gregory C. Wajnowski, International Commercial Dispute Resolution in China: A Practical Assessment, 4 Am. REV. INT'L ARB. 107 (1993).

(42.) Dellapenna, supra note 15, at 238-42.

(43.) See generally JAMES P. BRADY, JUSTICE AND POLITICS IN PEOPLE'S CHINA 41-54 (1982): Dellapenna, supra note 15, at 242-45; Tahirih V. Lee, Risky Business: Courts, Culture, and the Marketplace, 47 U. MIAMI L. REV. 1335 (1993).

(44.) Dellapenna, supra note 15, at 245-47.

(45.) SHAO-CHUAN LENG & HUNGDAH CHIU, CRIMINAL JUSTICE IN POST-MAO CHINA 11 n.22 (1985).

(46.) Id. at 16.

(47.) See MAO ZE DONG (MAO TSE TUNG), On the Correct Handling of Contradictions Among the People, in SELECTED READINGS FROM THE WORKS OF MAO TSETUNG 449-50 (Editorial Comm. For Selected Readings from the Works of Mao Testung ed., English trans. of 2d Chinese ed. 1971). See also BRADY, supra note 42, at 168- 203; LENG & CHIU, supra note 45, at. 17-20; Chan, supra note 16, at 177-79. See generally 1 RODERICK MACFARGUHAR, THE ORIGINS OF THE CULTURAL REVOLUTION 15-85 (1974).

(48.) For an examination of how such a society was run, with considerable attention to the subtle (and not so subtle) use of language to organize and run society, see MICHAEL SCHOENHALS, DOING THINGS WITH WORDS IN CHINESE POLITICS (1992).

(49.) Ding Xueliang, supra note 15; Jiang Xun, supra note 15. See generally DOMESTIC LAW REFORMS IN POST-MAO CHINA (Pitman B. Potter ed., 1994); William P. Alford, Double-edged Swords Cut Both Ways: Law and Legitimacy in the People's Republic of China, 122 DAEDALUS, Spring 1993, at 45, Dellapenna, supra note 15, at 247-52; Carol Jones, Capitalism, Globalization and the Rule of Law: An Alternative Trajectory of Legal Change in China, 3 SOC. & LEGAL STUD. 195 (1994).

(50.) Deng Xiao Ping, Reform of System of Party, State Leadership, CHINA DAILY, July 1, 1987, at 4, col. 1 (English translation of a speech given in 1980 to the Politburo of the Communist Party of China). See generally KEITH, supra note 19. For information on the economic dimensions of the legal reforms, see ORVILLE SCHELL, TO GET RICH IS GLORIOUS: CHINA IN THE EIGHTIES (1984); Alison W. Conner, To Get Rich Is Precarious: Regulation of Private Enterprise in the People's Republic Of China, 5 J. CHINESE L. 1 (1991); W. Gary Vause & Georgia Bush Vrionis, China's Labor Law Reform Challenge: Motivation of the Productive Forces, 24 STAN. J. INT'L L. 447, 451-57 (1988).

(51.) REPORT OF THE TAX BRIEFING TRIP To HONG KONG, supra note 1, at 5.

(52.) See CHARLES BURTON, POLITICAL AND SOCIAL CHANGE IN CHINA SINCE 1978, at 30-31 (1990); JAMES M. ETHERIDGE, CHINA'S UNFINISHED REVOLUTION (1990); KEITH, supra note 19, at 121-42; CARLOS WING-HUNG LO, CHINA'S LEGAL AWAKENING: LEGAL THEORY AND CRIMINAL JUSTICE IN DENG'S ERA (1995), BENEDICT STAVIS, CHINA'S POLITICAL REFORMS (1988); JOHN WOODRUFF, CHINA IN SEARCH OF ITS FUTURE: YEARS OF GREAT REFORM 1982-87 (1989); Jordan, supra note 10, at 338-40.

(53.) See BURTON, supra note 50, at 30-3 1: KEITH, supra note 19, at 1, 8-27; Richard Baum, Modernization and Legal Reform in Post-Mao China: Vie Rebirth of Socialist Legality, 19 STUD. IN COMP. Communism 69, 70 (1986); Chan, supra note 16, at 178-80.

(54.) See, eg., Fox BUTTERFIELD, CHINA: ALIVE IN THE BITTER SEA (1982); NICHOLAS D. KRISTOF & SHERYL WU DUNN, CHINA WAKES: THE SMUGGLE FOR THE SOUL OF A RISING POWER (1994): Seth Faison, China's Anti-Graft Drive Grows; So Does Graft, N.Y. TIMES: Aug. 10, 1995, at A3.

(55.) See supra note 17.

(56.) Frankie Leung, The Re-Emergence of the Legal Profession in the People's Republic of China, 6 N.Y.L. SCH. J. INT'L & Comp. L. 275, 277 (1985); Henry Pitney, The Role of Legal Practitioners in the People's Republic of China. 24 STAN. J. INT'L L. 323, 324-25 (1988).

(57.) See CHU-YUAN CHENG, BEHIND THE TIANANMEN MASSACRE: SOCIAL, POLITICAL, AND ECONOMIC FERMENT IN CHINA (1990). Dellapenna, supra note 15, at 252-58; Guo Zu, Why Those Who Study Law Act Against the Law--Meditation by Teachers and Students Of the China Politics and Law University, RENMIN RIBAO [PEOPLE'S DAILY-Beijing], Oct. 23, 1989, at 4; Hilary K. Josephs, The Chinese Democracy Movement in U.S. Perspective, 10 UCLA PAC. BASIN L.J. 285, 313-34 (1992); Barrett McCormick et al., The 1989 Democracy Movement: A Review of the Prospects for a Civil Society in China, 65 PAC. AFF. 182 n.2 (1992). See also James Caldwell, Toward Democracy and Law in the People's Republic of China, 1987-1988, in MAINLAND CHINA AFTER THE THIRTEENTH PARTY CONGRESS 66-86 (King-Yuh Chang ed., 1990). For collections of relevant documents, see CRIES FOR DEMOCRACY: WRITINGS AND SPEECHES FROM THE 1989 CHINESE DEMOCRACY MOVEMENT (Han Minzhu & Hua Sheng eds., 1990); VOICES FROM TIANANMEN SQUARE (Mok Chiu Yu & J. Frank Harrison eds., 1990).

(58.) See, e.g., Daniel Kwan, Dissident Han Dongfang to Sue Public Security Ministry, S. CHINA MORNING POST (Hong Kong), Sept. 30, 1993, at 1. See generally Mark Findlay & Thomas Chiu Chor-Wing, Constitutional Rights and the Constraint of Populist Dissent: Recent Resort to Legalism in China, 19 INT'L J. Soc. L. 67 (1991).

(59.) Court Refuses to Hear Suit by Han Dongfang, F.B.I.S. (P.R.C.) No. 93-206, at 12 (Oct. 27, 1993). See also Song Bing, Assessing China's System of Judicial Review of Administrative Actions, 8 CHINA L. RPTR. 1 (1994).

(60.) ASIA WATCH COMMITTEE, PUNISHMENT SEASON: HUMAN RIGHTS IN CHINA AFTER MARTIAL LAW (1990): INTERNATIONAL LEAGUE FOR HUMAN RIGHTS AND THE AD HOC STUDY GROUP ON HUMAN RIGHTS IN CHINA: THE REPRESSION CONTINUES (1990); KEITH, supra note 14, at 143-80; Fox Butterfield, Hard Line: Deng Returns with a Chilling Lesson about Power in China N.Y. TIMES, June 11, 1989, at 1; Mark Findlay, Show Trials in China: After Tiananmen Square, 16 J. L. & SOC'Y 352 (1989); Nicholas Kristoff, 3 Chinese Workers Sentenced to Die, N.Y. TIMES, June 16, 1989, at A1; Jeffrey A. McCredie, Human Rights Concerns in the P.R.C.: An Appraisal of Recent Events, 3 TEMP. INT'L & COMP. L. J. 217 (1990); Jennifer E. Morris, Human Rights Violations During the Tiananmen Square Massacre and the Precedents Obliging United States Response, 13 CARDOZO L. REV. 1375, 1379 (1991); Robin Munro, The Beijing Trials: Secret Judicial Procedures and the Exclusion of Foreign Observers, 10 UCLA PAC. BASIN L.J. 136 (1991); Robin Munro, Rough Justice in Beijing: Punishing the "Black Hands" of Tiananmen Square, 10 UCLA PAC. BASIN L.J. 77, 79 (1991); Supreme Court Issues Circular on Speed Dials, F.B.I.S., (P.R.C.) No. 89-120, June 21, 1989, at 15.

(61.) LENG & CHIU, supra note 45, at 110-12, 136-41, 171; Findlay & Chiu, supra note 56.

(62.) Alisa Burns, Family Policies in China, 1 AUSTL. J.L. & SOC'Y 80, 84-90 (1983): Seth Faison, In China Rapid Social Changes Bring a Surge in the Divorce Rate, N.Y. TIMES, Aug. 22, 1995, at A4.

(63.) Phyllis L. Chang, Deciding Disputes: Factors that Guide Chinese Courts in the Adjudication of Rural Responsibility Contract Disputes, 52 LAW & CONTEMP. PROBS. 101, 118 (No. 3. 1989); Donald C. Clarke, Dispute Resolution in China, 5 J. CHINESE L. 245, 259-63 (1991): Susan Finder, The Supreme People's Court of the People's Republic of China, 7 J. CHINESE L. 145, 148-54 (1993); Liu Nanping, "Judicial Review" in China: A Comparative Perspective, 14 REV. SOCIALIST L. 241, 247-49 (1988): Margaret Y.K. Woo, Adjudication Supervision and Judicial Independence in the P.R.C., 39 Am. J. COMP. L. 95 (1991).

(64.) Shenyang City v. Chao Hendung, SEASONAL BULL. No. 1 (Liaoning Prov. Ct., 1987).

(65.) Liu Guozu v. Luan Fuandi, SEASONAL BULL. No. 4 (Supreme People's Court, 1986).

(66.) See Clarke, supra note 63, at 257-59.

(67.) Jeff Dionise, Figuratively Speaking, A.B.A. J., Oct. 1995, at 39.

(68.) This figure is an approximation; no one knows what the precise percentage actually is. Henry Pitney reported that the figure was 10% in 1987. Pitney, supra note 56, at 351.

(69.) See Lu Ping, supra note 14, at 18-21; SPEECH BY PREMIER 11 PENG AT THE RECEPTION IN BEIJING CELEBRATING THE RETURN OF HONG KONG TO THE MOTHERLAND, reprinted in BEIJING REV., July 21-27, 1997, at 24; SPEECH BY PRESIDENT JIANG ZEMIN AT THE HONG KONG HANDOVER CEREMONY JOINTLY HELD BY THE CHINESE AND BRITISH GOVERNMENTS, reprinted in BEIJING REV., July 21-27, 1997, at 12: Speech of President Jiang Zemin, supra note 14. For a Chinese analysis of "one country, two systems," see Wu Naitao, supra note 8; Zhang Junsheng, Guarantee for Post-1997 Prosperity and Stability in Hong Kong, BEIJING REV., July 21-27, 1997, at 31. See generally Agnes J. Bundy, The Reunification of China with Hong Kong and Its Implications for Taiwan: An Analysis of the "One Country, Two Systems" Model, 19 CAL. W. INT'L L.J. 271, 273 (1989): Buruma, supra note 3, at 59-60; Chan, supra note 16, at 160-63; Hungdah Chiu, Hong Kong's Transition to 1997: Background, Problems and Prospects, in OCCASIONAL PAPERS/REPRINTS SERIES IN CONTEMPORARY ASIAN STUDIES, No. 5 (Hungdah Chiu ed., 1993); Colleen Granahan, Note, The Prospects of a Successful Reunification of Hong Kong and China in Light of the Events at Tiananmen Square, 10 B.U. INT'L L.J. 83 (1992); Skeen, supra note 2, at 177-81, 185-88: Peter Wesley-Smith, Law in Hong Kong and China: The Meshing of Systems, 547 ANNALS Am. ACAD. POL. & SOC. SCI. 104 (1996).

(70.) See Chan, supra note 16, at 141 n.9.

(71.) Joint Declaration, supra note 14, para. 3(12). See generally Chan, supra note 16, at 147-56, 177-81; Fung, supra note 14, at 289-94; Joseph Kennedy, The New Chinese Revolution: Hong Kong's Insurance Against Chinese Noncompliance with the 1984 Joint Declaration, 15 N.Y.L. SCH. J. INT'L & COMP. L. 83, 87-92 (1994); Neoh, supra note 16, at 325-30; John M. Rogers, Anticipating Hong Kong's Constitution from a U.S. Legal Perspective, 30 VAND. J. TRANSNAT'L L. 449, 472-80 (1997); Skeen, supra note 2, at 181-85; Peter Wesley-Smith, Settlement of the Question of Hong Kong, 17 CAL. W. INT'L L.J. 116 (1987); Wu Naitao, supra note 8, at 10-11.

(72.) Alysha Webb, Promises: A Primer on the Joint Declaration and the Hong Kong SAR Basic Law, ASIAN WALL ST. J., Dec. 2, 1996, at S15, available in 1996 WL 12479537.

(73.) Basic Law, arts. 5. 12. See generally THE HONG KONG BASIC LAW: BLUEPRINT FOR "STABILITY AND PROSPERITY" UNDER CHINESE SOVEREIGNTY? (Ming Chan & David Clark eds., 1991); Chan, supra note 16, at 160-63, 188-93; Fung, supra note 14, at 294-303; Neoh, supra note 16, at 330-37.

(74.) Buruma, supra note 3, at 56-58; Chan, supra note 16, at 199-202; Elliott & Elliott, supra note 6, at 33; Edward Gargan, China Resumes Control of Hong Kong, Concluding 156 Years of British Rule; Time of Uncertainty Begins: Will China Honor Vows?, N.Y. TIMES, July 1, 1997, at 1. See generally MARK ROBERTI, THE FALL OF HONG KONG: CHINA'S TRIUMPH AND BRITAIN'S BETRAYAL (1997).

(75.) McDermott, supra note 7, at 282. On the evolution of the Legislative Council under British colonial rule, see KATHLEEN CHEEK-MILBY, A LEGISLATURE COMES OF AGE: HONG KONG'S SEARCH FOR INFLUENCE AND IDENTITY (1995); Chan, supra note 16, at 168-73; Margaret Ng, Why Asia Needs Democracy, 8 J. DEMOCRACY 1 (No. 2, Apr. 1997); Rogers, supra note 71, at 480-91.

(76.) NORMAN MINERS, THE GOVERNMENT AND POLITICS OF HONG KONG 116-17 (5th ed. 1995); REPORT OF THE ILEX BRIEFING TRIP TO HONG KONG, supra note 1. at 77, 78.

(77.) Yash Ghai, Sentinels of Liberty or Sheep in Wolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights, 60 MOD. L. REV. 459, 473 (1997).

(78.) Rogers, supra note 71, at 487 n.158.

(79.) See Fan Elected Head of Legal Body, BEIJING REV. Feb. 17, 1997, at 4; Lin Liangqi, A Moment of Epoch-Making Significance, BEIJING REV. July 21-27, 1997, at 4, 7-8; Rogers, supra note 71, at 488: Barry Wain, The Media Miss Hong Kong's Story, ASIAN WALL ST. J., Apr. 25, 1997, at 6, available in 1997 WL 3802461; Wu Naitao, supra note 8, at 12-14.

(80.) Rogers, supra note 71, at 489.

(81.) Id. See also McDermott, supra note 7, at 283; Kevin Platt, Hong Kong Enters a Legal Quagmire: Whose Legislature, Courts, and Police Rule?, CHRISTIAN SCI. MONITOR, Dec. 23, 1996, at 7.

(82.) Susan Weld, The Democratic Party, in REPORT OF THE ILEX BRIEFING TRIP TO HONG KONG, supra note 1.

(83.) Linda Choy, Provisional Legislature "Exceeding Powers," S. CHINA MORNING POST, Aug. 4, 1997, at 6, available in 1997 WL 2272502; Erik Guyot, Struggle for the Soul of Hong Kong Council: President Seeks Consensus, While Some Lawmakers Show Independence, ASIAN WALL ST. J., July 29, 1997, at 7, available in 1997 WL 11012732; Too Late to Put Back Genie of Chamber, S. CHINA MORNING POST, Aug. 8, 1997, at 4, available in 1997 WL 2273656.

(84.) One Bank, One Vote, Editorial, ASIAN WALL ST. J., Aug. 28, 1997, at 6. available in 1997 WL 11015011.

(85.) Sharon Cheung, Bias Fear as Seats "Unfairly Divided," S. CHINA MORNING POST, Aug. 16, 1997, at 4, available in 1997 WL 13260465, Wendy Lim Wan-Yee, Election Arrangements "Strange and Unfair," S. CHINA MORNING POST, Sept. 6, 1997, at 6, available in 1997 WL 13262880; James Robinson, Deborah Brown, & Eric Moon, A Step Backward for Democracy in Hong Kong, ASIAN WALL ST. J., AUG. 19, 1997, at 6, available in 1997 WL 11014310; One Bank, One Vote, supra note 84.

(86.) Genevieve Ku, Push to Expand Direct Elections, S. CHINA MORNING POST, Sept. 9, 1997, at 6, available in 1997 WL 13263178; Chris Yeung & Simon Beck, Tung Defends Cut in Electorate, S. CHINA MORNING POST, Sept. 10, 1997, at 1, available in 1997 WL 13263252. See also Elliott & Elliott, supra note 6, at 33.

(87.) Li Huiling, China Refuses to Discuss with Britain the Issue of Senior Officials Working beyond 1997, MING PAO, July 2, 1994, at A2.

(88.) Joint Declaration, supra note 14, para. 3(4).

(89.) Sharon Cheung, Fearless Civil Service "Vital to Maintaining Rule of Law," S. CHINA MORNING POST, Oct. 18, 1996, at 5; Existing Council Members to Serve in Hong Kong SAR, BEIJING REV., July 7, 1997, at 4; William Overholt, Twelve Tips for the Markets, NEWSWEEK, May 19, 1997, at 48.

(90.) See, e.g., Chris Yeung & Linda Choy, Attack Stepped Up: China Steps up `Openness' Attack, S. CHINA MORN. POST, June 18, 1994, at 1, available in 1994 WL 8781322 (reporting that the People's Republic of China denounced moves by the Hong Kong government to increase the "openness" of its decision-making processes--similar to our freedom of information laws--as violations of the Sino-British Joint Declaration on Hong Kong and "detrimental to Hong Kong's smooth transition").

(91.) Chris Patten's Last Hurrah, STRAITS TIMES (Singapore), Oct. 8, 1996, at 28, available in 1996 WL 11725871.

(92.) See supra note 14.

(93.) Joint Declaration, supra note 14, para. 3(3).

(94.) Basic Law, arts. 19, 80-96.

(95.) Id., art. 90.

(96.) CHRISTINE LOH, HONG KONG AND THE BASIC LAW 82-84 (1995); Robin Fitzsimons, Is Hong Kong Facing a Legal Sell-Out?, TIMES (London), Aug. 1, 1995, at 34, available in 1995 WL 7687409; Jordan, supra note 10, at 346-48; McDermott, supra note 7, at 279-80; Rogers, supra note 71, at 462-63; Webb, supra note 72. See generally Emily Lau, Testing Time for Political Players, S. CHINA MORNING POST, July 24, 1995, at 18, available in LEGS, World Library, SCHINA File (reporting that the limit on the number of foreign judges on the Court of Final Appeal is controversial).

(97.) Edward Gargan, Hong Kong Worries over Fate of Legal System under Chinese Rule, N.Y. TIMES, Apr. 21, 1995, at A12; Rain Ren, PRC May Restrict Eligibility for Appeals Court, EASTERN EXPRESS, Apr. 9, 1994, at 1; So Lai-Fun, China Comments on Proposed Legislation, S. CHINA MORNING POST, Aug. 11, 1994, at 2, available in LEXIS, World Library, SCHINA File. See also MARTIN LEE & SZETO WAH, THE BASIC LAW: SOME BASIC FLAWS 69 (1988); Johannes Chan, Protection of Civil Liberties, in THE BASIC LAW AND HONG KONG's FUTURE 196, 226 (Peter Wesley-Smith & A. Chen eds. 1988). See also Fung, supra note 14, at 306-08.

(98.) McDermott, supra, note 7, at 280.

(99.) Prepared Statements by Mike Jenrzecjczk, supra note 3; Labor-Related Laws Suspended in HK, BEIJING REV., Aug. 4, 1997, at 4, available in 1997 WL 10063300. See generally HONG KONG's BILL OF RIGHTS: PROBLEMS AND PERSPECTIVES (Raymond Wacks ed., 1990). THE HONG KONG BILL OF RIGHTS: A COMPARATIVE APPROACH (Johannes Chan & Yash Ghai eds. 1993); Chan, supra note 16, at 163-68, 193-99; Davis, supra note 14, at 160-74; James Feinerman, Bill of Rights for Hong Kong, 25 INT'L LAW 791 (199 1); Edward A. Gargan, Right to Protest in Hong Kong to Be Cut Back, N.Y. TIMES, Apr. 10, 1997, at A1; Indira Lakshmanan, Hong Kong Ends Era as Haven: Handover Raises Dissidents' Fears; Back to China, B. GLOBE, June 9, 1997, at A1: McDermott, supra note 7, at 270-75; Skeen, supra note 2, at 196-202; Richard Swede, One Territory--Three Systems? The Hong Kong Bill Of Rights, 44 INT'L & COMP. L.Q. 358 (1995). There is a certain irony in Hong Kong's Solicitor General's description of Hong Kong's Bin of Rights Ordinance as one of the "pillars" on which Hong Kong's legal future depends in 1996, while he has, in discussions with the author, dismissed its partial repeal as unimportant in 1997. See Fung, supra note 14, at 303-06 (discussing the Hong Kong Bill of Rights).

(100.) Basic Law, art. 158.

(101.) See Jordan, supra note 10, at 365-79.

(102.) See, e.g., McDermott, supra note 7, at 277.

(103.) Basic Law, art. 158. See also Thomas Boasberg, One Country, One-and-a-Half Systems: The Hong Kong Basic Law and Its Breaches of the Sino-British Joint Declaration, 10 WIS. INT'L L.J. 282, 342-45 (1992) (noting that the National People's Congress would have the ultimate say in the interpretation of the Hong Kong Basic Law): Liu Yu Chu, Interpretation and Review of the Basic Law of the Hong Kong Special Administrative Region, 2 J. CHINESE L. 49, 56-57 (1988) (arguing that China's Central Government is unlikely to voluntarily submit to the jurisdiction of the Hong Kong SAR courts); Fitzsimons, supra note 96 (reporting that some see the controversial agreement to set up Hong Kong's CFA as a sellout); Fung, supra note 14, at 299-302; Jordan, supra note 10, at 356-65; Donna Lee, Note, Discrepancy between Theory and Reality: Hong Kong's Court of Final Appeal and the Acts of State Doctrine, 35 COLUM. J. TRANSNAT'L L. 175 (1997) (arguing that the Court of Final Appeal's impaired jurisdiction presents disturbing implications for the rights and liberties of the people of Hong Kong); McDermott, supra note 7, at 277-79; Neoh, supra note 16, at 345-47; Henry J. Reske, Experts Fear Hong Kong Legal System in Per& Despite Predictions, Law Society President Believes Reversion to Chinese Rule Will Not Erode Freedoms, A.B.A. J., Jan. 1996, at 33 (discussing the doubts harbored by legal experts and China watchers on Hong Kong's ability to prevent the erosion of rights and freedoms after July 1, 1997); Peter Stein, Hong Kong Legal Regime Thrown into Doubt, EUR. WALL ST. J., Apr. 10, 1995, at 2, available in 1995 WL 2147744 (reporting on the concern by businesses regarding the uncertainties in the Hong Kong legal system after 1997); M. Lucy Tan, Comment, From the Privy Council to the Court of Final Appeal: Will the Area of Non-Justiciability Be the Same in Hong Kong after July 1, 1997?, 19 LOY.-L.A. INT'L & COMP. L.J. 413 (1997) (arguing that the jurisdiction of pre-1997 and post-1997 Hong Kong courts will likely be comparable).

(104.) See Jordan, supra note 10, at 348-65; Rogers, supra note 71. at 46872; Wesley-Smith, supra note 71, at 112.

(105.) See generally JOHN P. DAWSON, THE ORACLES OF THE LAW (1968); FRANCOIS GENY, METHODES D'INTERPRETATION ET SOURCES EN DROIT PRIVE POSITIF: ESSAI CRITIQUE [INTERPRETING STATUTES: A COMPARATIVE STUDY] (D. Neil MacCormick & Robert S. Summers eds. 1991); John Henry Merryman, THe Italian Style III: Interpretation, 18 STAN. L. REV. 583 (1966); Ruth Redmond-Cooper, The Relevance of Fault in Determining Liability for Road Accidents: The French Experience, 38 INT'L & COMP. L.Q. 502 (1989).

(106.) Rogers, supra note 71; Peter Wesley-Smith, Handing over the Law, NEW GAZETTE, Feb. 1996, at 32, 33.

(107.) Regina v. Town Planning Bd., 6 H.K. P.L.R. 237 (H.K. C.A., 1996); Ming Pao Newspapers v. Attorney General, 3 W.L.R. 272 (Basic People's Court, 1996); Attorney General v. Lee Kwong-Kut, 3 W.L.R. 329 (Basic People's Court, 1993); Regina v. Sin Yau-Ming, 1 H.K. P.L.R. 88 (H.K. C.A., 1991). See generally Ghai, supra note 77.

(108.) See Hong Kong Special Administrative Region v. Ma. Reservation of Q. of L. no. 1 of 1997 (Ct. App. H.K., July 29, 1997), slip op. at 23-25 (slip op. on file with the author).

(109.) Stephen Sedley, The Sound of Silence: Constitutional Law without a Constitution, 110 L.Q. REV. 270, 277 (1994).

(110.) Fan Chun, Xu Huizi Threatens to Punish the Hong Kong Alliance in Support of the Patriotic and Democratic Movement in China, CHENG MENG, July 1, 1994, at 23.

(111.) Sandra Burton, Beijing's Capitalist TIME, Dec. 23, 1996, at 47; Atler, supra note 2, at 51; McDermott, supra note 7, at 273-74; Rogers, supra note 71, at 468-69.

(112.) Basic Law, art. 23. "State secrets" is a much broader concept than foreigners might expect, the Chinese government keeps much information secret that foreigners might expect to be routinely made public in their own country. More than one foreign Journalist has been Jailed or expelled from China simply for reporting off-the-record comments or strictly economic data from the People's Republic of China. See, eg., Maggie Farley, China Frees Hong Kong Journalist; Asia: Beijing Says Reporter Jailed Since 1993 Showed Repentence. But It Continues Push to Limit Civil Rights in Territory, L.A. TIMES, Jan. 26, 1997, at A6 (reporting that China's actions in freeing a Hong Kong journalist, imprisoned for reporting on Beijing's polities on interest rates and gold, before the government had officially released the information, sends mixed signals on the prospects of human rights in Hong Kong): Skeen, supra note 2, at 201. See also China Slops Wang Dan Colleague with Five-Year Jail Term, DEUTSCHE PRESSE-AGENTUR, Dec. 7, 1996, available in LEXIS, News Lib., DPA File (reporting that dissident Zhang Zonai was sentenced to five years in prison for publishing articles in a Hong Kong newspaper). "Subversion" has a similarly broad meaning in Chinese law. LOH, supra note 96, at 30 n.6.

(113.) McDermott, supra note 7, at 273-74; Overholt, supra note 89, at 49; Keith Richburg & Steven Mufson, Hong Kong Countdown Points up Discontent: Bold Midnight Challenge Is Planned, INT'L HERALD TRIB., June 18, 1997, available in LEXIS, World Lib., IHT File; Skeen, supra note 2, at 201-02; Stein, supra note 2; Tung: "People Will Rule Hong Kong," AsIAN WALL ST. J., Mar. 4. 1997, at 11, available in 1997 WL 3798453. See also Alter, supra note 2, at 51 (quoting the new chief executive of Hong Kong, Tung Chee-hwa, as warning his democratic opponents "not to 'bad mouth' their city in the press"). See generally Vincent W. Lau, Post-1997 Hong Kong: Will Sufficient Educational Autonomy Remain to Safeguard Academic Freedom?, 20 B.C. INT'L & Comp. L. REV. 187 (1997) (discussing whether China will allow Hong Kong sufficient educational autonomy under the Basic Law).

(114.) John Colmey, Escaping Hong Kong: A Secret Plan to Grant Asylum in the West Will Save Dozens of Mainland Dissidents from Beijing's Grasp, TIME, Feb. 17, 1997, at 64; Urgent Search, FAR E. ECON. REV., Aug. 8, 1996, at 12, available in 1996 WL 10569556. See also McDermott, supra note 7, at 275.

(115.) See Fredric Dannen, Partners in Crow: China Bonds with Hong Kong's Underworld, NEW REP., July 14, 1997, at 18 (arguing that Hong Kong's reunification with China will seal what amounts to a cooperation pact between the criminal triad societies and the Communist Party).

(116.) REPORT OF THE ILX BRIEFING TRIP TO HONG KONG, supra note 1.

(117.) See supra text accompanying notes 2-4.

(118.) See Kuan Hsin-chi, Power Dependence and Democratic Transition: The Case of Hong Kong, 128 CHINA Q. 774 (Dec. 1991) (arguing that the actual process of change has been largely conditioned by the external factor of power dependence on the Central People's Government of China); Wesley-Smith, supra note 71, at 126.

(119.) Paul Frantz, The Hong Kong Bar Association, in REPORT OF THE ILEX BRIEFING TRIP, supra note 1.

(120.) REPORT OF THE ILX BRIEFING TRIP TO HONG KONG, supra note 1.

(121.) See Liam Fitzpatrick, A 45-Minute Return Journey, E. EXPRESS, Aug. 18, 1995, at 37 ("Seen against China's millennia, the mere 150 years of British tenure will seem as a fleeting dream and we, the colonial generations, will no longer be the legitimate inheritors of an internationalism that we fondly imagine will spread through China like some White Man's blessing.").

(122.) See supra text accompanying note 9.

(123.) Hong Kong Special Administrative Region v. Ma, Reservation of Q. of L. no. 1 of 1997 (Ct. App. H.K. July 29, 1997) (slip op. on file with the author).

(124.) Id at 1-2.

(125.) Id at 4, 40, 65. The crime of conspiracy was not made a statutory crime in Hong Kong until 1996. Id at 15.

(126.) Id at 3-4, 64-65. 1he Bar Association trio actually attempted to enter the case as amici curiae, but at least one jurist objected to such an appearance without an invitation from the court. Id. at 64-65. Appearance on behalf of one of the clients solved the problem. On the barristers who undertook the challenge, see Rights and Safeguards Top Lawyers' Agenda, H.K. STD., July 23, 1997, available in 1997 WL 11821487.

(127.) Neil Western, Funding Staffs Landmark Case, H.K. STD., July 22, 1997, available in 1997 WL 11821428; Neil Western, Officials Defend No-Pay Policy in Legal Challenge, H.K. STD., July 23, 1997, available in 1997 WL 11821486.

(128.) Basic Law, arts. 8, 18, 19, 81, 87, 160. See also Joint Declaration, supra note 14, paras. 3(3). 3(12).

(129.) Ma, slip op. at 5, 14.

(130.) Id at 14-15 (per Chan, C.J.), 40-45 (per Nazareth, V-P), 66-75 (per Mortimer, V-P).

(131.) Id. at 16.

(132.) The Reunification Ordinance was enacted by the P.L.C. in the early morning hours of July 1, 1997; it is described at length in Ma, slip op. at 18-21. For information on the controversy over the P.L.C., see supra text accompanying notes 71-85.

(133.) Basic Law, arts. 8, 19, 81, 87. See Ma, slip op. at 16 (per Chan, C.J.), 45-49 (Nazareth, V-P). 75-78 (per Mortimer. V-P).

(134.) Basic Law, art. 160. See Ma, slip op. at 16-17.

(135.) Ma, slip op. at 17. See also No Politics Please, ASIAN WALL ST. J., July 31, 1997, at 6, available in 1997 WL 11012978 ("[I]f the three judges had stopped at that point Hong Kong might be a happier place today.").

(136.) Id. at 23-25 (per Chan, C.J.), 49-54 (Nazareth, V-P), 83-85 (per Mortimer, V-P). See generally Lee, supra note 103; Tan, supra note 103.

(137.) Ma, slip op. at 23-24.

(138.) Id at 25-38 (per Chan, CA.), 54-64 (per Nazareth, V-P), 78-87 (per Mortimer, V-P).

(139.) Cliff Buddle, Judicial System Ruled in Place, S. CHINA MORNING POST, July 30, 1997, at 6, availabLe in 1997 WL 2271932; Carmen Cheung, Fan, Party Leaders Welcome Ruling, H.K. STANDARD, July 30, 1997, available in 1997 WL 11821724: Edward A. Gargan, Hong Kong Court Upholds China's Rule, N.Y. TIMES, July 30, 1997, at A10; Edward A. Gargan, In Hong Kong, There Is Constitutional Law, but Whose?, N.Y. TIMES, July 23, 1997, at A3; Erik Guyot, Appeals Court in Hong Kong Backs Legislature, ASIAN WALL ST. J., July 30, 1997, at 1, available in 1997 WL 11012902; Angela Li & Sharon Cheung, Rita Fan Welcomes End to Uncertainty, S. CHINA MORNING POST, July 30, 1997, at 6, availabLe in 1997 WL 2271934; Wang Hui Ling, Hong Kong's Provisional Legislature Is Legal, Court Rules; Laws It Passes Are also Legal, STRAITS TIMES (Singapore), July 30, 1997, available in 1997 WL 12140529; Neil Western, Judgment Averts Legal Crisis, H.K. STANDARD, July 30, 1997, available in 1997 WL 11821735.

(140.) Carmen Cheung, Ruling Shows Limits to Judicial System wider "One Country, Two System" Say Democrats, H.K. STANDARD, July 30, 1997, available in 1997 WL 11821726; Linda Choy, Self-Imposed Limits Could Sacrifice Autonomy, Law Academic Warns, S. CHINA MORNING POST, July 30, 1997, at 6, availabLe in 1997 WL 2271935; Linda Choy & Genevieve Ku, Fears as "Bulwark of Basic Law Falls,"S. CHINA MORNING POST, July 30, 1997, at 7, availabLe in 1997 WL 2271940; Guyot, supra note 139; Lucia Palpal-Latoc, Decision "Defines SAR's Autonomy," H.K. STANDARD, July 30, 1997, available in 1997 WL 11821737; No Politics Please, supra note 132; Baby Sung, NPC Wields Too Much Power, H.K. STANDARD, Aug. 4, 1997, available in 1997 WL 12875918; Territory "Digging Its Own Grave," S. CHINA MORNING POST, July 31, 1997, at 6, available in 1997 WL 2272242; Wang Hui Ling, Wide Implications from Ruling on Provisional Legislature: HK's Provisional Legislature Is Legal, Court Rules, STRAITS TIMES (Singapore), July 30, 1997, available in 1997 WL 12140513.

(141.) Charlotte Parsons, Legislature Left Open to Attack, S. CHINA MORNING POST, July 30, 1997, at 1, available in 1997 WL 2271861.

(142.) Ma, slip op. at 53-54 (per Nazareth, V-P).

(143.) See Cliff Buddle, Judge Warns He May Block New Attack on Interim Legislature, S. CHINA MORNING POST, Aug. 5. 1997, at 1, available in 1997 WL 2272575 (suggesting that the Ma ruling affirming the provisional legislature may be binding in an immigration case); Guyot, supra note 139, Nihal Jayawickrama, A Dangerous Bow to Beijing, ASIAN WALL ST. J., AUG. 5, 1997, at 6, available in 1997 WL 11013270 (explaining why the Ma ruling affirming the provisional legislature was wrong); Neil Western, Way Cleared for New Challenge to PLC in Child Migrant Cases, H.K. STANDARD, Aug. 12, 1997, available in 1997 WL 12876269 (discussing a court's decision to allow a challenge to the provisional legislature's legitimacy). See also Angela IA, Bar Chief Hits at "Backward-Looking" Example in Provisional Legislature Case, S. CHINA MORNING POST, Sept. 13, 1997, at 6, available in 1997 WL 13263697 (criticizing a judge's suggestion that it would be "backward-looking" to conclude that courts had no jurisdiction to challenge the acts of the sovereign power).

(144.) Cliff Buddle, Averting Legal Vacuwn Main Issue: Judge, S. CHINA MORNING POST, July 30, 1997, at 6, available in 1997 WL 2271930.

(145.) See supra text accompanying notes 106-08.

(146.) Charlotte Parsons, Challenge to Body Dropped, S. CHINA MORNING POST, Aug. 29, 1997, at 6, available in 1997 WL 13261862.

(147.) Cheung, supra note 89; Guanxi Maximizing, ASIAN WALL ST. J., Jan. 30, 1997, at 10, availabLe in 1997 WL 3796094; McGeary, supra note 2, at 40; Andrew Neil, Hong Kong Surprise, VANITY FAIR, Mar. 1997, at 158; Overholt, supra note 89, at 49; Stein, supra note 103.

(148.) Frankie Fook-Lyn Leung, Back to Basics: The Future Role of Law in Hong Kong, L.A. DAILY J., Dec. 26, 1995, at 7.

(149.) Wang Hui Ling, Don't Let Hong Kong Autonomy Be Whittled Away, Warns Patten, STRAITS TIMES (Singapore), Oct. 3, 1996, at 22 available in 1996 WL 11725499.

(150.) CHINA AND HONG KONG: THE ECONOMIC NEXUS 12-76 (A.J. Youngson ed., 1983): WILLIAM OVERHOLT, THE RISE OF CHINA 183-98 (1992): Kennedy, supra note 7 1, at 96-103; McGeary, supra note 2, at 38; Neoh, supra note 16, at 320-21.

(151.) Fung, supra note 14, at 311-13; Kennedy, supra note 71, at 103; McGeary, supra note 2, at 38-39; Tan, supra note 103, at 428-29; Tung: "People Will Rule Hong Kong," supra note 103.

(152.) Elliott & Elliott, supra note 6, at 34; Seth Faison, With Pride Rising, Chinese Count the Days to Hong Kong's Return, N.Y. TIMES, June 1, 1997, at 1; Sheel Kohli, Official Wary of China View on Hong Kong: Mainland "Misunderstands" Economic Success Is Linked to the Rule of Law, S. CHINA MORNING POST, Oct. 25, 1996, at 10 available in 1996 WL 3771939; McDermott, supra note 7, at 275-76; Neoh, supra note 16, at 337; Stein, supra note 103. See generally William P. Alford, "Seek Truth from Facts"--Especially When They Are Unpleasant. America's Understanding of China's Efforts at Law Reform, 8 PAC. BASIN L.J. 177, 194-96 (1990) (stating that none of China's leaders has had formal training in Chinese or foreign law).

(153.) Edward A. Gargan, Hong Kong Fears Unraveling of Rule of Law, N.Y. TIMES, May 7, 1997, at A1; Skeen, supra note 2, at 181-90; Nancy Yoshihara, Interview: Martin Lee on the Approaching Role of China in Hong Kong, L.A. TIMES, May 4, 1997, at M3, available in 1996 WL 2207590.

(154.) On the ongoing problems of doing business in the P.R.C. in an atmosphere lacking legal security, see Guanxi Maximizing, supra note 147; Martin C.M. Lee, Why China Needs Hong Kong's Legal System, ASIAN WALL ST. J., Jan. 3, 1995, at 6, available in 1995 WL 2131203; McDermott, supra note 7, at 284-85; Stein, supra note 103.

(155.) See Buruma, supra note 3, at 56.

(156.) For an argument that the rule of law is largely irrelevant to Hong Kong's prosperity, see Ghai, supra note 8. See also Elliott & Elliott, supra note 6, at 32: McDermott, supra note 7, at 286-87. See generally David Trubek et al., Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas, 44 CASE W. RES. L. REV. 407, 478-79 (1994) (suggesting that the legal systems of developing countries are likely to resist change in an effort to protect the system's autonomy by shielding it from external influence).

(157.) See, eg., Chris Patten's Last Hurrah, supra note 88, at 28 (reporting on Mr. Patten's opposition to the provisional legislature, and his impassioned defense of the then existing one); Michael Elliott, You'll Never Walk Alone; Memo to Those Who Live in Hong Kong: The Whole World is Watching, NEWSWEEK, June 10, 1996, at 4. Fung, supra note 14, at 310-15, 308-09; Hong Kong's Council of Guardians, STRAITS TIMES (Singapore), Jan. 31, 1997, at 52 available in 1997 WL 7204460; Steven Irvine, "We Just Cannot Go Back," EUROMONEY, Sept. 1996, at 84 (interview with Donald Tsang, Financial Secretary for Hong Kong); Lee, supra note 154; Lee Siew Hua, China Value's Hong Kong's Success, STRAITS TIMES (Singapore), Mar. 6, 1997, at 16 available in 1997 WL 7206547; McDermott, supra note 7, at 275; Neoh, supra note 16, at 313, 337-45; Overholt, supra note 89, at 48; Wang Hui Ling, Patten Rebuts Criticisms by Hong Kong Businessmen, STRAITS TIMES (Singapore), Oct. 11, 1996, at 19 available in 1996 WL 11726084: Webb, supra note 72; Wesley-Smith, supra note 71, at 121, Yoshihara, supra note 153. See also Steve Raymer, Laying Down the Law in Singapore: Tough Politics, Beautiful Country, BALT. SUN, Aug. 27, 1995, at 1M, available in LEXIS, News Library, BALSUN File ("Since breaking away from a short-lived federation with Malaysia in 1965, Singapore has become one of the wealthiest places on earth . . . ."). See generally Maxwell O. Chibundu, Law in Development: On Tapping, Gourding, and Serving Palm-Wine, 29 CASE W. RES. J. INT'L L. 167 (1997) (inquiring into the renewed interest in the relevance of law for development in the less-developed or Third World countries).

(158.) Stein, supra note 103.

(159.) Elliott & Elliott, supra note 6, at 34.

(160.) See Michael C. Davis, To Go or Not to Go, FAR E. ECON. REV., Apr. 18, 1991, at 20 (explaining that emigration has not been a realistic option for many); John H. Henderson, Note, The Reintegration of Hong Kong into the People's Republic of China: What It Means to Hong Kong's Future Prosperity, 28 VAND. J. TRANSNAT'L L. 503, 534 (1995) (explaining how the uncertainty of Hong Kong's economic and political stability caused many firms in Hong Kong to undertake a strategy of precautionary relocation or diversification); McDermott, supra note 7, at 287, Y.L. Wu & Y.C. Jao, The Economic Consequences of 1997, 20 CASE W. RES. J. INT'L. 17, 31-33 (1988) (describing the strategy of precautionary relocation or diversification which locally incorporated firms use to leave Hong Kong).

(161.) Stein, supra note 103.

(162.) McDermott, supra note 7, at 287; Stein, supra note 103.

(163.) Elliott & Elliott, supra note 6, at 34. The number of Americans living in Hong Kong comes from Hua, supra note 157.

(164.) Elliott, supra note 157.

(165.) House Calls on China to Honor Hong Kong Accord, REUTERS WORLD SERVICE, Mar. 11, 1996, available in LEXIS, News Library, REUWLD File.

(166.) For evidence that other nations are no more supportive of democracy and the rule of law than is the United States, see Britain Softens Stance on the New Order, H.K. STANDARD, July 30, 1997, available in 1997 WL 11821707; Europe, Hong Kong and China, ASIAN WALL ST. J., July 3, 1997, at 8, available in 1997 WL 11010830.

(167.) Yoshihara, supra note 153. See also Steven Erlanger, China Policy: Politics Rules, N.Y. TIMES, Apr. 29, 1997, at Al (illustrating how China has become a touchstone in United States domestic partisan politics).

(168.) Yoshihara, supra note 153. See also Rogers, supra note 71, at 472-80, 491-93; Skeen, supra note 2, at 185-88.

(169.) 22 U.S.C. [subsections] 5701-32 (1994).

(170.) Id. [subsections] 5712, 5713, 5721.

(171.) Agreement for the Surrender of Fugitive Offenders, Dec. 20, 1996, H.K.-U.S., S. TREATY DOC. 105-3 (1997), reprinted in 36 I.L.M. 842; Agreement for the Transfer of Sentenced Persons, Apr. 15, 1997, H.K.-U.S., S. TREATY DOC. No. 105-7 (1997), reprinted in 36 I.L.M. 856. See Marian Nash (Leich), Contemporary Practice of the United States Relating to International Law, 91 Am. J. INT'L L. 493, 493-97 (1997) (outlining the provisions of the United States-Hong Kong extradition agreement).

(172.) Agreement Regarding the Maintenance of the United States Consulate General in Hong Kong, Mar. 25, 1997, P.R.C.-U.S., 36 I.L.M. 813.

(173.) 22 U.S.C. [sections] 5722.

(174.) Id. [sections] 5731.

(175.) Alter, supra note 2; Buruma, supra note 3, at 61; Elliott & Elliott, supra note 6, at 34-35; Fung, supra note 14, at 314-18; Kennedy, supra note 71; Neoh, supra note 16, 314-15; Wong Siu-Lun, Modernization and Chinese Culture in Hong Kong 106 CHINA Q. 306, 324-25 (1986).

(176.) Nicholas D. Kristof, Year of the Trojan Horse, N.Y. TIMES, July 1, 1997, at A1; Jennifer Lin, In Ways, Hong Kong May Take Over China, PHILA. INQUIRER, July 6, 1997, at E1, available in 1997 WL 8699121.

Joseph W. Dellapenna, Professor of Law, Villanova University School of Law; B.B.A. with distinction, University of Michigan (1965); J.D. cum laude, Detroit College of Law (1968); LL.M. in Public International and Comparative Law, George Washington University (1969); LL.M. in Environmental Law, Columbia University (1974). Professor Dellapenna has been a Fulbright professor in both the People's Republic of China and the Republic of China (Taiwan), and currently co-chairs the China Law Committee of the Section of International Law and Practice of the American Bar Association with special responsibility for Hong Kong, Macao, Singapore, and Taiwan.