Hong Kong: A Case Study in Democracy and the Rule of Law

By Justin Yang

Justin Yang is a freshman at the University of Pennsylvania studying Politics, Philosophy, and Economics.

The rule of law is absolutely fundamental in liberal democracies to enable the democratic institutions to work well. It is the rule of law that ensures that peaceful transitions of power will occur and those in power cannot prevent their political adversaries from taking offices they are rightfully elected to. But if the situation allows for it, the law can also be exploited and weaponized, twisted to make  anti-democratic or even dictatorial actions legal. These situations have popped up many times in history, and the most recent case is happening right now in Hong Kong.

In an election on September of this year, six localist candidates were elected to the city’s legislature, the Legislative Council. These candidates advocate for much greater autonomy for Hong Kong, or even independence from China. In an admittedly immature act of protest, some of these new legislators purposefully stated the oath of office that pledges allegiance to China incorrectly. Thinking of it as an internal matter, the President of the Legislative Council invalidated their oaths but allowed them to retake it at a later date and take their seats as democratically elected legislators. However, the executive branch, the head of which is chosen by a committee of Beijing loyalists, took the unprecedented and blatantly political step to sue the legislative branch. [1]

This raised enormous questions regarding the separation of powers. The requirement to take the oath of office is enshrined in Article 104 of Hong Kong’s mini-constitution, the Basic Law, which presumably grants the executive branch the power to enforce the oath. But whether a legislator should be expelled from the legislature is presumably an internal matter of the legislature itself. In any case, although the lawsuit itself was controversial, it was a legal matter that the courts could decide.

But then, without waiting for the courts to rule, the Chinese government took another unprecedented move and stepped in. Article 158 of the Basic Law gives the National People’s Congress (NPC), the legislature of China, the power to interpret the Basic Law. [2] For the nearly twenty years the Basic Law has been in effect, the NPC has only issued four interpretations, and always at the request of the Hong Kong courts or government. This time it stepped in, uninvited, and interpreted Article 104 to require that oaths be taken “sincerely” and “solemnly,” and that failure to do so would mean disqualification without a second chance. [3] All legislators must truly agree and mean it when they take the oath of office; in effect, those that say they pledge allegiance to China could still be disqualified if it is determined somehow that they are being insincere. The localist movement, which seeks autonomy or independence from China, would inherently violate this requirement. This would effectively ban its adherents from ever taking political office.

Two legislators have already been disqualified as a result. [4] The Hong Kong government has announced that it will continue to launch legal cases and use this interpretation to go after other democratically-elected legislators that have, in some way or another, not said the oath in a perfectly proper way. [5] These legislators all happen to be part of the localist or pro-democracy camp. When a government seeks to unseat members of the opposition and effectively ban them from ever taking political office, most people would say it is an anti-democratic and even authoritarian action. This is the case even if they do it by arming themselves with lawyers and hiding behind the banner of the rule of law.

Yes, all of this is legal, but this is where we see that even with independent courts and the rule of law in place, the law is limited and can work against the people’s interests and against democracy. The law is law, but the law is not always just.

[1] Stuart Lau et al. “Hong Kong Government Fails to Block Localist Duo from Retaking Legco Oaths, but Wins Right to Seek Judicial Review.” South China Morning Post. October 18, 2016. Accessed December 1, 2016. http://www.scmp.com/news/hong-kong/politics/article/2029124/hong-kong-government-fails-block-localist-duo-retaking-legco
[2] “The Basic Law of the Hong Kong Special Administration of the People’s Republic of China.” Basiclaw.gov.hk. Accessed December 1, 2016. http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf
[3] “Explanations on Draft Interpretation of Article 104 of Basic Law of Hong Kong SAR.” Chinese Academy of Social Sciences. November 7, 2016. Accessed December 1, 2016. http://www.iolaw.org.cn/global/en/new.aspx?id=54311
[4] Stuart Lau, Chris Lau, Christy Leung. “Appeal judges Uphold Localist Pair’s Dismissal from Hong Kong’s Legislative Council.” November 30, 2016. Accessed December 1, 2016. http://www.scmp.com/news/hong-kong/politics/article/2050347/appeals-court-upholds-localist-pairs-dismissal-hong-kongs
[5] Joyce Ng, Tony Cheung, Eddie Lee. “Hong Kong Government Seeks to Ban Four More Pro-Democracy Legislators.” December 2, 2016. Accessed December 2, 2016. http://www.scmp.com/news/hong-kong/politics/article/2051215/hong-kong-government-launches-new-round-legal-challenges

​Photo Credit: Flickr User Spreng Ben

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