Monday, October 5, 2015

P.Y. Lo (PhD 2012) Marks the Anniversary of the HK Umbrella Movement

"Back to the Legal Basics: A Note at the Anniversary of the Hong Kong Umbrella Movement"
Dr. P.Y. Lo (PhD 2012)
3 October 2015
The Umbrella Movement erupted in Hong Kong, a Special Administrative Region (SAR) of the People’s Republic China (PRC), on 28 September 2014 when protestors began to occupy major thoroughfares in mainly three busy business and commercial districts in Hong Kong after the police failed to disperse them using CS gas and pepper spray. These unlawful occupations lasted for 79 days and came to an end with the removal of the last protestors by members of the police said to be assisting in the execution of several court orders made at the suit of private transportation businesses.
      The Umbrella Movement was the unintended culmination of a course of advocacy by various political factions in Hong Kong in 2014 to threaten to use civil disobedience tactics to force the Central Authorities of the PRC to grant at the next stage of the development of Hong Kong’s political system in 2017 a method of election of the Chief Executive that is “genuinely democratic universal suffrage” and the Central Authorities’ substantive rejection of such a demand by a Decision of the Standing Committee of National People’s Congress (SCNPC) adopted on 31 August 2014 (the 8.31 Decision).
      This Note marks the first anniversary of the Umbrella Movement by examining the substantive provisions of the 8.31 Decision as to how restrictive they are and whether they can or cannot be justified as “reasonable restrictions” of a Hong Kong SAR permanent resident’s rights to vote and to be elected, which are guaranteed under Article 26 of the Basic Law of the Hong Kong SAR.
      Although the Hong Kong SAR Government’s proposal for amending the method of selecting the Chief Executive in 2017 by universal suffrage was rejected by the Legislative Council in farcical circumstances on 18 June 2015, the first anniversary of the Umbrella Movement has presented an opportunity for all those concerned to re-focus on the debate about the direction of Hong Kong’s political system for the mid and long-term, not only because the pre-existing electoral method for electing the Chief Executive (based upon an Election Committee composing of four sectors of a total of 1,200 persons elected to represent various sub-sectors in one of those sectors) will continue to be the electoral method for the Chief Executive election in 2017, but also due to the legal bind and the political reality that any future move in developing the Chief Executive electoral method towards a method by universal suffrage will continue to have the 8.31 Decision as the starting point.
      I had earlier in this blog in February 2014 outlined the current electoral method for electing the Chief Executive and considered what the Basic Law of the Hong Kong SAR, particularly Article 45 thereof, envisages to be the electoral framework for returning the Chief Executive of the Hong Kong SAR by universal suffrage. More debates had followed, which led to the 8.31 Decision. The analysis I am going to embark on follows recent scholarship on how the SCNPC works in law-making and extends the coverage to decision-making said to be in accordance with law, which might not be normatively different. The analysis is also necessary to enable the stakeholders (the Central Authorities included) to view the legal position dispassionately and take more rational positions in future negotiations, including revisiting the 8.31 Decision at appropriate time and circumstances... Click here to read the full article.

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