Brian C Jones (ed)
2017, Routledge, 236 pp
4. "The Law and Politics of Constitutional Reform and Democratization in Hong Kong"
Albert HY Chen
Introduction: A few weeks after China’s National People’s Congress Standing Committee (NPCSC) promulgated its Decision of 31 August 2014 on the model for the election by universal suffrage of Hong Kong’s Chief Executive in 2017, the “Occupy Central” Movement – also known as the “Umbrella Movement” -- engulfed several key government and business districts in Hong Kong. As in the case of the “Sunflower” Movement in Taipei earlier in the same year, students played a very important role in the Hong Kong movement. Whereas the movement in Taipei was in protest against the ruling regime’s policy of economic cooperation with Beijing, the movement in Hong Kong was a popular protest against Beijing’s policy towards, or restrictions on, democratization in Hong Kong.
Beijing’s policy on Hong Kong’s democratization was purportedly based on the provisions of the Basic Law of the Hong Kong Special Administrative Region (HKSAR), which was enacted by the National People’s Congress (NPC) in 1990 and came into force when Hong Kong’s status changed from that of a British colony to a Special Administrative Region (SAR) of the People’s Republic of China (PRC) on 1 July 1997. Ironically, so were the demands of the protestors, who alleged that the NPCSC Decision of 31 August 2014 constituted a breach of Beijing’s promise to the people of Hong Kong that the democratic election of the Chief Executive (CE) of the HKSAR by universal suffrage would be introduced – a promise enshrined in the text of the Basic Law itself. In this sense, the “Occupy” Movement in Hong Kong can be considered a social movement that drew on legal norms as an important component of its strategy of mass mobilization. How then could both the legitimacy of the NPCSC Decision of 31 August 2014 and the claims of the protestors be simultaneously based on the Basic Law – the constitutional instrument of the HKSAR? This chapter seeks to answer this question by reviewing the evolution of Hong Kong’s political system and investigating into the different understanding and interpretations of the Basic Law on the part of the Chinese regime and on the part of democracy activists in Hong Kong.
This chapter consists of the following parts, apart from this Introduction. First it examines the development of Hong Kong’s political system since colonial times, and the provisions of the Basic Law governing the political order of the HKSAR. It then briefly reviews the movements towards democratization that took place since the establishment of the HKSAR in 1997. Next it considers developments since early 2013, when the “Occupy Central” campaign was launched to struggle for the realization of “genuine universal suffrage” in the election of the CE of the HKSAR. Finally, it concludes by reflecting on the contradictions and tensions inherent in the project of “One Country, Two Systems” that were revealed by the failure of the “Occupy” Movement in realizing its democratic aspirations, particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of democracy activists in Hong Kong.
5. "Political Protest in High-Income Societies: The Case of the Occupy Central Movement in Hong Kong"
Introduction: Hong Kong is a metropolitan city that enjoys prosperity, freedom and the rule of law. It is also a city that recently (1997) came under China’s authoritarian rule. The tension in Hong Kong’s political system is manifested in the continued struggle to reconcile with its new political master and the corresponding demand for democratic advancement. As a “semi-democracy”, Hong Kong is constitutionally committed to universal suffrage, and there is a deeply felt passion and aspiration among residents in the city for liberal constitutional democracy. But the commitment to democracy is ironically made by a Communist Party authoritarian state that is fearful of, if not hostile to, the very concept. The fight for democracy in the sub-national unit within an authoritarian regime has defined and continues to define Hong Kong’s political landscape.
Hong Kong has been a difficult place for China to govern. Its political freedom and openness, independent and powerful legal system, and vibrant and challenging civil society are alien to the Central Authorities in Beijing. For them, Hong Kong remains uncharted water in many fundamental aspects. Yet as difficult and costly as it has been, China has grown confident in its ability to govern Hong Kong with a degree of effectiveness, and increasingly has resorted to constitutional rules and legal process in shaping Hong Kong’s political future. The Decision of the National People’s Congress Standing Committee on 31 August 2014, as discussed below, is the most recent example of how China suffocates Hong Kong’s democratic impulses through legal interpretation. But China’s rule of law concept is an authoritarian one. Will it prove effective in deflecting and silencing resistance from political and legal institutions in Hong Kong and in limiting Hong Kong’s constitutional options?
Deeply concerned with a real decline in Hong Kong’s way of life, frustrated by the authoritarian rule of law that the Central Authorities impose on Hong Kong, and desperate for the lack of democratic mandate that may entrench Hong Kong’s value and institutions, various groups in the city decided to make their political demands outside the established political and legal routes, launching the largest civil disobedience movement to date by occupying main streets at the heart of the city to protest against the 31 August Decision (the movement was referred to as the Occupying Central Movement, hereafter OCM). In doing so, Hong Kong residents took the constitution into their hands, insisting on their own alternative constitutional interpretation.
While the pursuit of democratic value through civic participation and the rule of law are both close to the heart of the Hong Kong people, the OCM, as the largest civil disobedience movement to date, reveals a rare moment of a clear tension between the ideals of democracy and the rule of law. The OCM clearly demonstrated Hong Kong’s democratic passion and resilience. For a brief period, the movement gathered so much momentum that the students appeared to be unstoppable. However, with the prolonged nature of the OCM, the movement started to show its adverse social and economic impact, leading to a split in the community which initially showed a high degree of support and solidarity. The democratic potential of civil disobedience for the OCM began to decline and diminish, and its potential instability started to come to the forefront. As time progressed, the OCM was associated more with frustration, fatigue and disorder, and even became linked with political conspiracy and a continued threat to Hong Kong’s rule of law. When pro-OCT activists struggled to cope with internal conflicts, anti-OCM forces were mobilized and brought the occupiers to courts to account. Ironically, it was a court order that drove a fatal wedge into the OCM, dividing the supporter community and undermining the moral of the occupiers. It was the authority of the court and the willingness of the people in the city to obey the rule of law that effectively suppressed citizens’ democratic impulses.
With the peaceful ending of the OCM, Hong Kong’s struggle for democracy has turned a new page. The two-and-a-half month display of mass civil disobedience was unprecedented in its scale, epic in its manifestation, and potentially lasting in its impact on Hong Kong’s constitutional development; but it was also highly controversial and divisive. There was the expectation that when all the dust settles, Hong Kong will have to do some serious soul-searching to rediscover its core values, redefine its identity, and locate itself within China. Unfortunately, the OCM has not brought political antagonism to an end. The OCM is much a reflection of divisive society as a catalyzer of a more radical movement, one that may spin Hong Kong out of control.
6. "The Nomos of Hong Kong's Umbrella Movement"
Abstract: My claim here is that the great success of Hong Kong's pro-democracy "Umbrella Movement" was that it temporarily ruptured the background ordering of the city that we – as legal scholars – so often take for granted. This interruption of the existing normative order or nomos of the city re-posed the questions belonging and by paying due attention to the interruption that the movement enacted we can see its enduring significance for Hong Kong’s legal and political settlement. The argument proceeds by first setting out the shift that I propose to take: away from “law” and towards the “nomos”, a term that, as will become clear, opens our thinking to a broader and more dynamic sense of normative ordering than that afforded by a strictly legalistic lens. I then turn to two distinct senses of the “nomos” that I will discuss in relation to the Umbrella Movement. The first, inspired by the German jurist Carl Schmitt, foregrounds the normative force of spatial ordering and the second, inspired by sociologist Peter Berger and the legal theorist and historian Robert Cover, assesses the discursive dimension to normativity, stressing how shared normative commitments are central to the formation of community and a common identity. My claim is that, beyond raising technical, constitutional issues concerning voting rights, the Umbrella Movement’s interruption of the city’s existing spatio-normative distribution posed fundamental questions about the nature of identity and belonging in the territory that goes to the heart of its political significance.
Congratulations to Michael Ng (吳海傑), whose book Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997) was awarded the honorable mention of the International Society for Chinese Law & History (ISCLH) 2024 Biennial Book Prize. The book was published by the Cambridge University Press in September 2022.
