( V# e, e7 I1 \3 V, x" KThe Hong Kong arms of the Big Fourhave got the rule of law wrong * s/ O) b' a) v9 {3 [: F 3 g# s% H$ a+ F( {; ]3 l6 C公仔箱論壇- @( I# y, L: _$ I0 \" s* x5 A% C. V
By Michael Skapinker5 }6 j6 ~' a: Z. B Y6 k- g' ~
Who would PwC, Deloitte, EY and KPMG prefer to appear before – China’s judges or Hong Kong’s? $ G. o2 ` ]3 m+ i5 w; _公仔箱論壇 4 Y9 M% b! r% z5.39.217.77:88988 H6 q9 `" N! \1 m, e; _8 a8 F
The Hong Kong arms of the Big Four accountants, in their recent advertisement, attacked the pro-democracy Occupy Central movement, saying it could have a “negative and long-lasting impact on the rule of law”.) E( O4 T. [/ _6 r& w
' h2 R+ W" H4 qtvb now,tvbnow,bttvbLord Patten, the last British governor of Hong Kong,also expressed his fears about what was happening to the rule of law. In his view, it was not pro-democracy campaigners who threatened it but Beijing, with its recent “white paper”, which said that Hong Kong’s judges should be“patriotic”.( J/ i5 p6 y# d
$ t' e1 k+ t; R3 F `“Judges under the rule of law are independent and there shouldn’t be any question of them being instructed or pressed to subordinate their views of due process and what is legal to some other political considerations,” Lord Patten said. 8 @4 e9 w- i2 T$ O& v* uTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。 / p P. F- g2 S* @' A% l公仔箱論壇Clearly, the Hong Kong arms of PwC, Deloitte,EY and KPMG – which received support from China’s ambassador to the UK – and Lord Patten don’t mean the same thing by the “rule of law”. What does it mean? , B/ a; Q( I4 g公仔箱論壇TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。3 A2 v# k/ `$ Y! P
The most commonly-cited authority is AV Dicey in his Introduction to the Study of the Law of the Constitution, first published in 1885. To Dicey, the rule of law meant, first, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”. It meant everyone should be equal before the law, including the government. ' I z( n7 W0 T2 o+ l8 b- \$ H5.39.217.77:8898+ K* X. J, f7 ^( E
“The ‘rule of law’ . . . excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens,” Dicey wrote.. k$ V# Y6 P8 Q* p5 s$ l" k1 I
6 j e; N7 G- g8 c% ]tvb now,tvbnow,bttvbThe rule of law, in this sense, supports Lord Patten’s insistence that Hong Kong judges should be independent of any pressure from China’s government. It has little to do with the Big Four’s worry,expressed in their advertisement, that Occupy Central might disrupt “key large transactions and commercial activities”. 2 N5 ~* G- @6 }6 g6 h# w* X5.39.217.77:88985.39.217.77:8898& C+ [- l- w6 y
The accountants appear to be confusing the “rule of law” with “rule by law”, which, in the words of Jothie Rajah, of the American Bar Foundation, is “state-serving law”. The “rule of law” ensures the equal treatment of all; “rule by law” ensures orderly running of society under government control.5.39.217.77:8898- D7 l; ~/ W5 S
# W/ T4 h$ {% p- [; B/ v2 P& LSome might object that this formulation of the rule of law is western and excessively individualistic – but it is widely admired around the world. When I praised Dicey’s version of the rule of law in a speech to a conference of the Law Society of England and Wales this week,attended by lawyers from countries, among others, in eastern Europe, Africa and Asia, the only dissent I heard was that an American might have added the separation of powers. / {/ O+ x. }. V; x* q ^/ M公仔箱論壇tvb now,tvbnow,bttvb2 P; I/ B. W8 w2 e- l/ E j' e) c, S
I don’t believe anyone, given a choice, would prefer to live in a society where you can be jailed or have your property confiscated on the say-so of an official rather than through due process of law.5.39.217.77:8898# }) L2 D6 e2 P/ i# w) _# I
7 s4 y8 X2 }+ Y: n2 c
Concurrent with the rule of law is citizens’ right to protest over and discuss how they are governed, as Hong Kong’s people have been doing in their debate about how to elect their chief executive. 4 v; x8 a6 f' f9 g/ HTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。6 u$ v8 @, r0 A( x- _% H
The Hong Kong Big Four have every right to be alarmed if people plan to invade premises and disrupt business. That is a crime in any society. But if that were their concern, they should have combined it with a recognition that people do have the right to protest peacefully, as tens of thousands did in Hong Kong last week.公仔箱論壇5 }6 I6 V9 G e- V1 d$ T a
' x6 d. M! c# k: Y! Z8 A6 n
They should also have supported the independence of the judiciary as a cornerstone of citizens’ and companies’ security. But while they talked about a “law-based society” and called on people to “follow the law”, they had nothing to say, in their advertisement,about how law is made and judged. % u7 p, [2 X Q. s! w3 ^5.39.217.77:8898tvb now,tvbnow,bttvb" G/ L7 w! h/ N% _
It may be that they have accepted that China plans to exert greater control and that they would like to retain Beijing’s favour. ) r: V. n) K( M M; [公仔箱論壇 - }8 w- u8 ^1 e9 Y2 |# ^) ?5.39.217.77:8898There are businesses in other parts of the world that make the same deal, that accept the protection of a government’s strong arm in return for the chance to make money without disturbance.tvb now,tvbnow,bttvb% j) ~" G, t. R8 i0 W* c( Q
TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。+ o {8 H( f# q! m! X( f% U$ G
That is fine when things go well. Businesses need to think how they would fare if they did not. In China, GlaxoSmithKline officials have been accused of corruption. Hong Kong business leaders who wish Lord Patten and the democracy campaigners would pipe down should ask themselves this: if something similar happened to them, who would they prefer to appear before – China’s judges or Hong Kong’s?5.39.217.77:8898# m0 K8 \- Z, t- P& s7 ?- {6 | c6 b
4 S% X, z* k# n ) D. @3 A+ A O4 g sTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Introduction to the study of the law of the constitution (1889)* { b e9 k! i( m% p6 E7 l/ a! t
$ K5 O: \2 A$ }" d. R; I 作者: felicity2010 時間: 2014-7-10 09:56 PM
本帖最後由 felicity2010 於 2014-7-10 10:05 PM 編輯 - y9 k3 p. a2 z' O! Y+ B7 L/ L ! ^" ?% j m; l! ?. V華爾街日報刊文 斥匯豐、Big 4得益功能組別 反佔中無視法治崩壞7 j; h7 r- R8 z$ E, r4 B& J
5 \; K" E% V" k' c5 @8 X公仔箱論壇WSJ: Hong Kong's Talkative Companies . J* h" {( f$ }5 xtvb now,tvbnow,bttvb ) s( k: _( g! @# iThe political left in America loves to complain that companies play an outsized role in politics, especially in the wake of Supreme Court rulings that confirm corporations have a right to engage in political speech. But if you want to visit a place that has a real problem with politically active corporations, you'll have to hop on a plane to Hong Kong. ( H! q e3 H9 C. qTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。 $ S; Z$ z7 `$ k; G! }5 r6 q5.39.217.77:8898Some local companies have grown increasingly vocal in recent weeks in opposing pro-democracy activists. The Occupy Central movement—a respectable group, unlike those who camped out in Lower Manhattan a few years ago—is promising to bring gridlock to Hong Kong's central business district if Beijing doesn't follow through on its pledge to allow genuine democracy in the territory by 2017. 3 Z# ^$ \& g/ P5 v& H+ O
& V4 y' C- z8 Q2 S* dMany businesses are concerned about the risks and costs of business disruption if parts of Hong Kong come to a standstill.The Hong Kong offices of the Big Four accounting firms late last month took out an ad in several local newspapers warning that the protests would"shake" international confidence in the territory and could send foreign investors fleeing.tvb now,tvbnow,bttvb' c9 T# y5 B$ s( ~( L3 ]' x( B g
tvb now,tvbnow,bttvb; Z( w2 i9 ~! P( h& \* W$ b HSBCHSBA.LN -1.80% earlier this week issued a research report downgrading its view of Hong Kong stocks, citing the political instability and potential for "souring" relations between Hong Kong and Beijing that would arise from Occupy Central protests. After a public uproar, the bank partly backtracked by revising its report to list several other factors supposedly justifying such a downgrade. ' I4 f @' H: g, [8 Q6 h$ t公仔箱論壇 * F. \6 i+ u7 N4 p/ \tvb now,tvbnow,bttvbThe companies err badly on the merits. If it's allowed to continue, the territory's slide into Beijing-lite authoritarianism, with the loss of rule-of-law and concomitant rising public discontent, will be far worse for business than the temporary disruptions of a public protest. But in most political systems, including Hong Kong's (for now anyway), being wrong is not a crime. ! f0 u) ?, Y% x# N0 _ 0 F' a. a% D5 \The real problem is that Hong Kong law affords these companies an outsized role in the electoral system itself if they want one. Thirty-five of the 70 members in the territory's legislature, which will ultimately vote on any democratic-reform proposal, are elected from so-called functional constituencies, or industry-and other special-interest groups. Companies themselves are electors in many of these constituencies.tvb now,tvbnow,bttvb7 e0 v! A- V+ W
8 u4 U: N7 i0 p/ z) F' Q8 GTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。For example, the finance and insurance industries each get their own representative in the Legislative Council,elected by companies. Only 124 companies are registered to vote in the finance constituency, which encompasses banks; only 129 companies vote in the insurance constituency. Because HSBC and its subsidiary Hang Seng0011.HK -0.16% Bank engage in both banking and insurance activities, each gets one vote in each constituency. 5 _3 Z4 J' e1 x0 f ; t- H* l, e2 y' R1 }1 D0 Y$ N公仔箱論壇At first the situation appears better with respect to the accounting firms. Only individual human beings who are certified public accountants are eligible to vote in the functional constituency for accountancy, and some 25,000 electors are registered to do so. That makes accountancy one of the most "democratic" functional constituencies,alongside education and health services. Even so, accountancy electors get two votes for Legislative Council since they are also eligible to vote in their geographical constituencies. 0 u7 ]9 |( n( D+ C 7 ?* u' S. W! H3 B, _5.39.217.77:8898Yet the Big Four have a back door path into functional-constituency voting, if they ever want to take advantage of it. One functional constituency, for general business, represents members of the Hong Kong General Chamber of Commerce. KPMG, EY, and Deloitte Touche Tohmatsu already are members and PwC could join at any time. Spokesmen from EY and PwC tell me their firms are not currently registered to vote in any functional constituency and KPMG declined to comment; a spokesman for Deloitte didn't return a request for comment. 7 M/ ~% ?) g P5 V# X' q- a/ Z; c
) S9 ~6 u7 A/ Y$ s公仔箱論壇This gives corporate speech in Hong Kong far more weight than any of the false nightmare scenarios concocted by the left in America. In a one-person-one-vote democracy,corporate speech is merely a form of activism by a voluntary association (in this case, of the shareholders) to persuade voters on one issue or another. But in Hong Kong, companies themselves get to pick some of their lawmakers, and can be expected to do so for commercial reasons.5.39.217.77:88989 a6 w0 E3 S" u2 X
This might sound like a great boon for business, but it's not. Critics of HSBC and the Big Four suggest the companies are motivated by commercial concerns—the bank's extensive business interests in mainland China, or all the accounting contracts the Big Four have with large Chinese enterprises. This is the point. Functional constituencies are designed to be a pro-establishment bulwark. Businesses risk being discredited by virtue of having been co-opted into an electoral system that relies on them to oppose popular movements such as Occupy Central.Companies become tarnished by their association with it and their political speech grows less and less persuasive. ( o- C' Z# P( F+ f5 W% wTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。! ~( s5 r: X2 n: V9 \ x9 O6 u
In response to the Big Four newspaper ad, an anonymous group of the firms' employees bought their own ad supporting Occupy Central. To the extent that the universal suffrage those employees support undermines the influence of functional constituencies, the accountants are arguing against their electoral self-interest. But they seem to realize that real democracy is in the political and economic best interests of all Hong Kongers, and Hong Kong's companies. It's a more enlightened view than that of their employers.公仔箱論壇. z) I+ `' B) `7 r; E# P
, O, n% D) w F# n公仔箱論壇Mr. Sternberg edits the Business Asia column., P% g# S7 p6 o; f6 N9 V2 P+ F+ e
TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。/ S) s$ o8 R& w1 A
5.39.217.77:8898! m7 }* H0 L% a4 H, Q
公仔箱論壇8 F D& w, G& r7 P! C