Abstract
This paper conducts a comparative and jurisprudential analysis of the “Occupy Central Movement” (OCM) in Hong Kong. Its comparison with other civil disobedience movements reveals that it has the potential to become a constitutional moment because it aims at changing existing constitutional norms. Theoretically, this paper first seeks to utilize Professor Ackerman’s constitutional moment theory to analyze the OCM, which demonstrates that the OCM has completed the first three steps for a constitutional moment but has not moved to the fourth and fifth steps. It then attempts to provide jurisprudential explanations of why the OCM has occurred but failed to evolve into a constitutional moment. Comparative study with constitutional moments in American constitutional history identifies four reasons why the OCM failed. Further, the paper applies two influential theories including the self-determination theory and national pluralism theory to the OCM. Both theories support the argument that Hong Kong people are distinct and entitled to decide their democratic development progress. The main theoretical contribution of this paper lies in its finding that the application of the two theories has been compromised and/or conditioned in Hong Kong by its unique constitutional setting, especially the constitutional principle of “one country, two systems” contained in its constitutional document—the Basic Law. Under the principle, only when the political will of people in both Hong Kong and the whole of China supports genuine democratic election of its Chief Executive will democratic development in Hong Kong become possible, whereas the political will of mainland Chinese trumps that of Hong Kong people.
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- 1.
- 2.
It is the national legislative body in China. It exercises national legislative function while the National People’s Congress (NPC) is not in session.
- 3.
Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 (Adopted at the Tenth Session of the Standing Committee of the Twelfth National People’s Congress on 31 August 2014), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc23.pdf (Last accessed 23 March 2016).
- 4.
Kwok and Lee 2015.
- 5.
- 6.
The term “colour revolutions” in this paper refers to a series of movements that took place in Eastern Europe during the early 2000s. The Sunflower Student Movement, or the Sunflower Movement in short, is a term commonly used to describe the protest of students and civil groups in Taiwan between March and April of 2014 against the Kuomintang’s passing of the Cross-Strait Service Trade Agreement (CSSTA). For a more detailed discussion of the color revolutions and the Sunflower Movement, see subsequent sections of this paper.
- 7.
Wesley-Smith 1987.
- 8.
See, 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, http://www.legislation.gov.hk/blis_ind.nsf/CurEngOrd/034B10AF5D3058DB482575EE000EDB9F?OpenDocument (Last accessed 23 March 2016).
- 9.
Para 2 of Article 45, Basic Law.
- 10.
Annex I, Basic Law.
- 11.
Article 7 of Annex I, Basic Law.
- 12.
Para 1 of Article 158, Basic Law.
- 13.
The Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Eighth Session of the Standing Committee of the Tenth National People’s Congress on 6 April 2004), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc18.pdf (Last accessed 23 March 2016).
- 14.
Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in the Year 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2008 (Adopted at the Ninth Session of the Standing Committee of the Tenth National People’s Congress on 26 April 2004), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc19.pdf (Last accessed 23 March 2016).
- 15.
Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage (Adopted at the Thirty First Session of the Standing Committee of the Tenth National People’s Congress on 29 December 2007), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc21.pdf (Last accessed 23 March 2016).
- 16.
Lam and Tony 2013.
- 17.
For a comprehensive compilation of news and events pertaining to the movement, see the South China Morning Post’s dedicated OCM website at: http://www.scmp.com/topics/occupy-central (Last accessed 23 March 2016).
- 18.
It lasted for 5 months. See Hong Kong Chief Secretary Lam 2015.
- 19.
Hong Kong SAR Government 2014.
- 20.
“720 thousand people voted; Benny Tai: Not to occupy Central on July 1st,” Hong Kong Economic Times [Xianggang Jingji Ribao], 24 June 2014, A06 (in Chinese).
- 21.
Chen 2014a.
- 22.
Hong Kong SAR Government (2015), paras 2.07–2.08.
- 23.
“Thousands of students from 17 institutions and colleges to participate in the one-week class boycott campaign on September 22,” The Sun [Taiyang Bao], 8 September 2014, A08 (in Chinese).
- 24.
- 25.
“Benny Tai’s September 28th Occupy Central Declaration,” Apple Daily [Pingguo Ribao], 28 September 2014, A01 (in Chinese).
- 26.
“HKFS calls for labour strike and indefinitely suspension of class,” Metro Daily [Dushi Ribao], 29 September 2014, P08 (in Chinese).
- 27.
Hong Kong SAR Government (2015), para 2.10.
- 28.
Hong Kong SAR Government 2015, para 2.11.
- 29.
“OCCUPY CENTRAL – THE DEBATE: Full coverage of the student-government talks,” South China Morning Post, 21 October 2014, http://www.scmp.com/news/hong-kong/article/1621141/live-hong-kong-students-prepare-meet-government-officials-democracy?page=all (Last accessed 23 March 2016).
- 30.
Opponents of the group and the petition have called into question its authenticity, claiming that many of the names and signatures are fake. See, Hui 2014.
- 31.
Associated Press in Hong Kong 2014.
- 32.
The arrested include student leaders Joshua Wong and Lester Shum. See Branigan 2014.
- 33.
Tony and Sung 2014.
- 34.
They include several members of the HKFS and Scholarism. See “Hong Kong protests: Arrests as Admiralty site is cleared,” BBC News, 11 December 2014, http://www.bbc.com/news/world-asia-china-30426346 (Last accessed 23 March 2016).
- 35.
“Police clear final Hong Kong protest site at Causeway Bay,” BBC News, 15 December 2014, http://www.bbc.com/news/world-asia-30474687 (Last accessed 23 March 2016).
- 36.
Ng 2014.
- 37.
See, “Report on the Recent Community and Political Situation in Hong Kong published,” HKSAR Government Press Release, 6 January 2015, http://www.info.gov.hk/gia/general/201501/06/P201501060379.htm (Last accessed 23 March 2016).
- 38.
It lasted for three months. See Wan et al. 2015
- 39.
Lau 2015b.
- 40.
Lau 2015a.
- 41.
HKSAR Government 2015.
- 42.
Wan et al. 2015.
- 43.
“Bus parade solicits public support for universal suffrage proposals,” HKSAR Government Press Release, 25 April 2015, http://www.info.gov.hk/gia/general/201504/25/P201504250785.htm (Last accessed 23 March 2016).
- 44.
“‘Say NO to fake universal suffrage’, pan-democrats go to different districts to call for refusing to ‘take it first’,” Singtao Daily [Xingdao Ribao], 27 April 2015, http://std.stheadline.com/yesterday/loc/0427ao13.html (in Chinese) (Last accessed 23 March 2016).
- 45.
Public Opinion Programme, The University of Hong Kong 2015.
- 46.
“LegCo to vote on Electoral Reform Package to amend method for selection of Chief Executive of HKSAR,” HKSAR Government Press Release, 15 June 2015, http://www.info.gov.hk/gia/general/201506/15/P201506150864.htm (Last accessed 23 March 2016).
- 47.
Kwok and Lee 2015.
- 48.
Landry 2011, at p. 2.
- 49.
Stewart 2009, at p. 645.
- 50.
- 51.
- 52.
Landry 2011, at p. 3.
- 53.
Ibid., at p. 4.
- 54.
Ibid.
- 55.
Hence the name that was later assigned to this revolution.
- 56.
See Footnote 52 above, at p. 6.
- 57.
Ibid., at p. 7. “Kmara” is an organization founded by the young Otpor members with a mission to transfer their knowledge to activists of other post-communist states.
- 58.
Otpor had given their revolutionary “trademark strategy” to Kmara leaders, who agreed on the moniker of the “Rose Revolution.” Ibid., at p. 9.
- 59.
See Footnote 52 above, at p. 9.
- 60.
Ibid., at p. 11.
- 61.
Ibid., at pp. 12–13.
- 62.
In Central Asia, ballot stuffing is common and where dictators were re-elected with 90% of the vote. Ibid., at p. 13.
- 63.
See Footnote 52 above, at p. 14.
- 64.
Ibid., at p. 14.
- 65.
Ibid.
- 66.
Ibid., at p. 15.
- 67.
See Cole 2014.
- 68.
Chen 2014b.
- 69.
Wei 2014.
- 70.
President Ma had no knowledge beforehand of either Wang’s visit or his promise. See, Hsiao 2014.
- 71.
See Ramzy 2014.
- 72.
- 73.
- 74.
See, for example, “Scholarism insists on duly implementing civic nomination,” Headline Daily [Toutiao Ribao], 25 March 2014, http://hd.stheadline.com/news/realtime/hk/846975/ (Last accessed 24 March 2016); Liu 2015.
- 75.
Tan 2014; “Benny Tai’s September 28th Occupy Central Declaration,” Apple Daily [Pingguo Ribao], 28 September 2014, A01 (in Chinese).
- 76.
Ackerman 1991, p. 6.
- 77.
Cass R. Sunstein, at the back cover page of the vol. 1 of We the People. Ackerman 1991.
- 78.
See above Footnote 76.
- 79.
Ibid., at pp. 6–7.
- 80.
Ackerman 2007.
- 81.
Ibid.
- 82.
They are the three successful ones. He has discussed quite a few unsuccessful ones in his various writings. See, for example, Ackerman 1991.
- 83.
See above Footnote 76.
- 84.
See above Footnote 80, at p. 1762.
- 85.
Ibid.
- 86.
Young 2013.
- 87.
It is particular important because it happened after the Supreme Court had repudiated several New Deal programs as unconstitutional.
- 88.
See above Footnote 80.
- 89.
See above Footnote 86, at p. 1999.
- 90.
Ibid.
- 91.
Ibid., at p. 2000.
- 92.
Ibid.
- 93.
Ibid.
- 94.
For the details about the amendment of the Letters Patent to entrench the ICCPR, see Lin 2016.
- 95.
For the details about this demonstration, see, for example, Petersen 2005.
- 96.
Fu et al. 2005.
- 97.
HKSAR Government 2013.
- 98.
“780,000 people participated in popular referendum to fight for universal suffrage with civic nomination,” Kung Kao Po [Gongjiao Bao] 6 July 2014, 1 (in Chinese).
- 99.
“Foes of Hong Kong democracy protests claim petition drive success,” Los Angeles Times, 3 November 2014, http://www.latimes.com/world/asia/la-fg-hong-kong-protest-foes-20141103-story.html (Last accessed 23 March 2016); “Over 110,000 people joined signature campaign, calling for Obama to watch closely,” Headline Daily [Toutiao Ribao], 29 September 2014, P06 (in Chinese); Cai 2015, Sevastopulo 2014, and Ng et al. 2014; “Albert Chen proposes ‘three-person group list’,” Wen Wei Po [Wen Hui Bao], 15 December 2014, A06 (in chinese); “Four issues of constitutional reform led to heated debates, Scholars: Reaching consensus under the framework of the NPC,” Ta Kung Pao [Da Gong Bao], A01 (in Chinese); “‘13 Scholars’ met Carrie Lam: Citizens adopting the ‘middle way’ hope to have universal suffrage as scheduled,” Wen Wei Po [Wen Hui Bao], A14 (in Chinese).
- 100.
In the fifth HKSAR LegCo (2012–2016), the pan-democrats only occupy less than 30 seats. The biographies of all the LegCo members are available at: http://www.legco.gov.hk/general/english/members/yr12-16/biographies.htm (Last accessed 29 March 2016).
- 101.
Wong 2014.
- 102.
“Using tear Gas to clear Central, protest extends to Kowloon,” Hong Kong Economic Journal [Xin Bao], A01 (in Chinese).
- 103.
- 104.
See, for example, “Civil Human Right Front of Hong Kong initiated the first post-‘Occupy Central’ demonstration to ‘fight for universal suffrage’,” BBC Chinese, 1 February 2015, http://www.bbc.com/zhongwen/trad/china/2015/02/150201_hongkong_rally (in Chinese) (Last accessed 29 March 2016).
- 105.
See above Footnote 80.
- 106.
See, for example, “Ignoring High Court’s Injunction, Protesters continue to occupy Mong Kok and Admiralty,” Oriental Daily [Dongfang Ribao], 21 October 2014, A01 (in Chinese); “High Court extends Injunction Order, Bailiff may ask police for help in clearing the scene,” Headline Daily [Toutiao Ribao], 11 November 2014, P10 (in Chinese); “High Court granted interim injunction barring occupation of various places in Admiralty, police was authorised to provide assistance; Judge: No political consideration,” Hong Kong Economic Times [Xianggang Jingji Ribao], 2 December 2014, A15 (in Chinese).
- 107.
See, for example, “Citizens took to the street to fight for universal suffrage despite the sun and rain; Robert Chung: Hope to use scientific method to count the number of demonstrators,” Hong Kong Economic Journal [Xin Bao], 2 July 2014, A14 (in Chinese); “180,000 signatures were collected on the first day of the signature campaign of Alliance for Peace and Democracy; Alliance: To make the pan-democrats less embarrassing in changing their stand to support the political reform,” Ming Pao Daily [Ming Bao], 10 May 2015, A04 (in Chinese).
- 108.
The OCLP did hold an online “civil referendum” on 22 June 2014; however, it was criticized by the Mainland officials as an “open challenge to the Basic Law.” Chen 2014c. Lin Feng and Daniel Alati have argued that a consultative constitutional referendum mechanism should be established in Hong Kong. Lin and Alati 2016.
- 109.
The “five-step process” is laid down in the Basic Law and the NPCSC’s Interpretation of the Basic Law on 6 April 2014 (The Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China [Adopted at the Eighth Session of the Standing Committee of the Tenth National People’s Congress on 6 April 2004), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc18.pdf (Last accessed 23 March 2016)]. They are as follows: (1) The CE to make a report to the NPCSC as to whether there is a need to amend the methods for the selection of the CE and for the formation of the LegCo; (2) NPCSC to determine whether the two electoral methods need to be amended; (3) HKSAR Government to introduce the resolutions on the amendments to the LegCo, and the resolutions have to be endorsed by a two-thirds majority of all the members of the LegCo; (4) The CE to give consent to the motions endorsed by the LegCo; and (5) The CE to report the relevant bill to the NPCSC for approval or for the record.
- 110.
Under Article 7 of Appendix I of the Basic Law, all the amendments to the electoral methods have to be approved by the NPCSC.
- 111.
- 112.
Ibid.
- 113.
- 114.
I have argued that exercise of the right to self-determination may lead either to independence or high degree of autonomy of a group of people within a sovereign state. See Lin Feng, Self-determination, territorial integrity, and economic continuity: the decolonization of Hong Kong, available at Law Library of Victoria University of Wellington.
- 115.
Tierney 2004.
- 116.
Ibid., at p. 4.
- 117.
Ibid.
- 118.
Ibid.
- 119.
Ibid., at pp. 4–5.
- 120.
Ibid., at pp. 327–328.
- 121.
Bradley 2014.
- 122.
See, for example, Articles 8 and 18 of the Basic Law.
- 123.
Annex I, Basic Law.
- 124.
Article 7 of Appendix I of the Basic Law provides that: “If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for approval.”
- 125.
Decision of the Standing Committee of the National People’s Congress on Approving the “Amendment to Annex I to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Concerning the Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region” (Adopted at the Sixteenth Session of the Standing Committee of the Eleventh National People’s Congress on 28 August 2010), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc1&2.pdf (Last accessed 30 March 2016).
- 126.
Amendment to Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Concerning the Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures (Recorded at the Sixteenth Session of the Standing Committee of the Eleventh National People’s Congress on 28 August 2010), http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc3&4.pdf (Last accessed 30 March 2016).
- 127.
Article 7 of Appendix I, Basic Law.
- 128.
The list of NPCSC members and their profiles are available at: http://www.npc.gov.cn/npc/cwhhy/12jcwh/node_29654.htm (in Chinese) (Last accessed 30 March 2106).
- 129.
See, for example, Articles 2, 3, 59 and 76 of the Constitution of the People’s Republic of China.
- 130.
Kwok and Lee 2015.
- 131.
Wesley-Smith 1987.
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Acknowledgments
The author would like to thank Ms. Pinky Choy, research fellow of the Centre for Chinese and Comparative Law, who has provided research assistance for the writing of the section on the development of the OCM in this paper and the completion of footnotes. The author would also like to thank the donation for Basic Law research.
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Lin, F. (2019). A Comparative and Jurisprudential Analysis of the “Umbrella Movement”—Is It a Constitutional Moment?. In: Singh, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2018. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-13-7052-6_4
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