Constitutional Theory and Hong Kong Practice

By Michael C. Davis

 

    The Basic Law of Hong Kong provides for the possibility of instituting full direct popular democracy in 2007. Some members of the community have also begun to consider other types of constitutional reform. Hong Kong is, therefore, at a stage where it is prudent to look forward and ask what type of constitutional community it wants and needs on the road ahead. Reflections on constitutional theory offer occasions to ask how well things are working and what reform would be helpful. This paper will focus on the issues of constitutionalism and the rule of law and their relationship to the democratic process emerging in Hong Kong. In global discussions of constitutionalism and development basic questions are ask about the importance of constitutional democracy in the development process. For Hong Kong, whether to have or not have democracy or constitutionalism is really not an issue. These institutional commitments are provided in an international agreement, the Sino-British Joint Declaration.[1] Furthermore, Hong Kong’s own processes of constitution-making have shown a popular commitment to democracy, human rights and the rule of law (the most commonly understood ingredients of constitutionalism) as ends in themselves. This vision seems to clearly favor a liberal form of constitutional democracy. Various forms of authoritarianism, socialist democracy or even “illiberal democracy” are neither envisioned nor publicly acceptable and will not be considered as serious options here.

The central question, therefore, is not to ask “should we?” but, rather, to consider just how well Hong Kong is realizing its constitutional objectives and what are the implications for change. In this regard, questions about how constitutional institutions work and the cost engendered by any deficiencies are important. There are patterns of constitutional interaction between the key institutions of government that need to be explored. After briefly outlining what I believe to be the most coherent vision of what liberal constitutionalism does, this paper will discuss basic constitutional components and their health in the Hong Kong context. In this regard, the paper will adopt the commonly recognized liberal constitutional elements of democracy, human rights and the rule of law as a framework for analysis.[2] Local application of these components will be addressed in turn in succeeding sections of the paper. These elements must, of course, be appreciated in their local social and political setting.[3] Ultimately, the paper will make the case for full universal suffrage as a way to improve Hong Kong’s constitutional performance.

 

I. Basic Constitutional Theory and the Processes of Political Development

Prior to jumping into the details of Hong Kong’s constitutional journey, a concise theoretical account of what I believe to be the institutional dynamics of liberal constitutions may be helpful.  This may assist our efforts to understand the role of constitutionalism both as a source of constraint and of empowerment. It may also help us to construct a yardstick to measure achievements and objectives.  These institutional processes are, of course, effected by differences in legal systems, party systems, legislative structures and powers and patterns of democratic participation. But the present account will focus on the dynamics of a liberal constitutional model, with a written and supreme constitution, in a common law jurisdiction. There are many comparative accounts of constitutional structures in civil law countries and of systems of parliamentary supremacy in other common and civil law context that need not much concern us, given the pre-existing constitutional commitments in Hong Kong.

In broad terms, one might envision constitutional government as a venue for discussion of political outcomes and values. Laws, including judicial decisions, usually have two effects: the immediate intended effect expressly addressed by the law itself and long-term effects on political values that are of more enduring interest.[4] Constitutionalism is especially concerned with our basic value commitments. Constitutional theory generally focuses on the functioning of institutions of constitutional government and their interactions with the democratic process.[5] Scholars too often emphasize the constraints of constitutional government without sufficient appreciation of the positive discourse-engendering role.[6] The outcomes of decision in a constitutional system are the product of the interaction of politics and institutions. The flow of information between the people and these institutions and the interaction of the institutions themselves is generally a measure of the health of the constitutional system and the values it represents. This health may also serve to engender confidence, or the lack thereof, in the system. As many constitutional enterprises have revealed in recent years, this confidence may be the measure of success or failure in a given country and will certainly shape a countries economic developmental path.

Alexander Bickel, discusses liberal constitutionalism in its American common law variant.[7] He describes a system where the outcomes of democratic processes, reflected in legislation, are measured against fundamental democratic commitments reflected in the constitution. Courts, exercising the power of constitutional judicial review, may be called upon to take the constitutional measure of legislation on familiar topics such as, for example, the death penalty, the protection of national symbols or equal protection of the laws. The other side of the scale is generally weighted with various human rights, liberty and democracy concerns addressed in the bill of rights. He envisions a role where the outcome of this judicial process, applying a bill of rights or other constitutional requirements, is informed by both expediency and principle in a dialogue with the elected branches and the people. The court may uphold a law, overturn it or simply avoid the issue.[8] The people may respond with new laws and the Court respond again, when those laws are brought up for review. This chain of action and reaction engenders an ongoing inter-institutional conversation that engages the public at large through the electoral process. This constitutional conversation is constructive of fundamental commitments and the mechanisms of the constitutional order. Outcomes both constrain options and engender further responses. This process is productive of what is generally thought of as a “living constitution.”

While constitutional theory scholarship generally assumes democracy is in place and worries about the role of constitutional judicial review in a democracy, the pivotal role of a healthy and genuine democracy is apparent. Democracy is the essence of the entire liberal constitutional project, whether addressed at length in the constitutional text or not.[9] While theory often focuses on the role of constitutional judicial review, this constitutional project occasionally engages the people directly. At times, characterized by Bruce Ackerman as “constitutional moments,” the people move beyond ordinary politics and institutional mechanisms to mobilize to speak directly to their fundamental concerns.[10] These moments may be moments of formal or informal constitutional change. Such moments will likewise face difficulty and distortion without a robust and reliable democracy. In all of these processes, the coordinate role of democracy, human rights (including liberty) and the rule of law is apparent. Each effects the other and distortion may follow from unwarranted interference or depreciation of democratic and institutional roles.

When we appreciate that constitutional processes are not just concerned with constraint but also with the empowerment of the people, in a discursive sense, then it is easier to see that the legitimacy embraced in democratic institutions is central to the functioning of this constitutional framework. Leaders who override constitutional constraint to “get the job done” are not just overriding some disagreeable laws but are, rather, undermining the will of the people. When it is in doubt whether the will of the people is, in fact, reflected by quasi-democratic institutions, such as now exist in Hong Kong, then confidence in the democratic legitimacy of the system is at even greater peril. As is discussed in succeeding sections of this essay, there is evidence that Hong Kong has been plagued by efforts to economize on these constitutional commitments.

Undercutting democracy undermines our efforts to achieve orderly and principled government and tends to polarize the society and distort political outcomes. Undercutting democracy also undercuts the legitimizing component of the system and disturbs public confidence in the value of participation, cutting off the fuel that drives the constitutional process. Undercutting human rights undermines the assurances of equal representation, trust in procedural and substantive justice and the adequacy of the public debate. Undermining the judicial component in some sense undercuts the engine that drives the constitutional system and engenders a system without reliable constraint. Jon Elster notes that the strength of the authoritarian leader is also his weakness: “He is unable to make himself unable to interfere with the legal system whenever it seems expedient.”[11] It is difficult to sustain the rule of law without democracy and difficult to sustain democracy without the rule of law.

It is generally felt that this constitutional engine drives economic development, as well. This certainly seems to be the case on the high end.[12] As economies reach a higher level of development authoritarian developmentalism, as experienced in much of East Asia, becomes its own grave digger. Economic development under the free market model tends to engender greater diversification of social and economic interest and increased demands for representation of such interest. As our analysis of law suggests, these interests produce immediate demands, while, at the same time, engendering more principled interest or values. This process has been evident throughout East Asia in the tiger economies, where the authoritarian developmental “miracle” was followed by a wave of democratization. In the terms of Dietrich Rueschemeyer and others, the causal mechanism of this involved the emergence of “subordinate classes” that were able to mobilize to seek better representation through greater democracy.[13] It is believed that constitutional democracy may better mediate the complex forces at play in a highly developed society.[14] Human rights and the rule of law may cause economic actors to have more confidence in the system. In this global age, countries that do not demonstrate sufficient commitment to these institutions do so at their peril. This may effect their ability to attract investment and to regulate it effectively, when it arrives. Poorer countries without reliable institutions may attract investment, especially on the low end of the production process, but usually at a greater cost. Other factors contribute to greater confidence in democracies with relevant rule of law and other constitutional elements. Democratic countries are thought to be able to respond better to crises of the type evident in the recent East Asian economic crisis because democracy provides a venue for addressing the conflicts that emerge.[15] Finally, open democratic societies are thought to foster greater know-how, inventiveness and initiative, more efficient functioning of economic incentives and greater openness and competitiveness in the industrial, banking and financial sectors. Highly developed countries cannot afford to loose their competitive edge in these areas.

Because of these complex dynamics the effort to construct legitimacy and reliability under constitutional government often requires demonstrations of extraordinary commitment to the constitutional fundamentals we have discussed.[16] So one measure of the health of the constitutional system in Hong Kong is the degree of commitment to constitutional fundamentals. I believe that for a society of Hong Kong’s sophistication and high-end development it will not do to too readily fall short on the level of extraordinary commitment democratic constitutional institutions require. Doing so to date has engendered a certain dysfunctional quality to Hong Kong’s constitutional processes. Decisions that either undermine the democratic process and its legitimacy or shave on constitutional requirements fundamentally alter value commitments and undermine confidence. The reform process on the horizon offers an opportunity to discuss where we could do better and shape the path ahead.

 

II. Hong Kong’s Constitutional Path

 

    The 1984 Sino-British Joint Declaration, in addition to providing for the return of Hong Kong to China in 1997, put Hong Kong on the rather visionary path to constitutional democracy, though Chinese leaders may not have worked out the full implications of this vision. It was understood that anything less would fail to secure adequate confidence in Hong Kong’s future. The Joint Declaration addresses all the fundamental elements of constitutionalism. Respecting democracy, it promises that the Chief executive is to be chosen by “elections or consultations” held locally and that the legislature is to be chosen by “elections.”[17] Regarding human rights, the Joint Declaration lists the full panoply of liberal rights, of which more than half relate to freedom of expression, as well as requiring application of the international human rights covenants.[18] The rule of law is expressly secured by the continued application of the common law, the independence and finality of the local courts, the supremacy of the Basic Law (which is stipulated to include the content of the Joint Declaration) and the right to challenge executive actions in the courts.[19] This later element presumably includes the right to challenge the actions legal basis under the Basic Law. By implication, this promised nothing less than a full system of constitutional judicial review of legislation, as is now widely accepted. Though the Basic Law appropriately incorporates most of the requirements of the Joint Declaration, in the three key areas noted above, there have been some shaving of these commitments.[20] Full democracy is promised but not provided (the most substantial issue now before us) and the character of constitutional judicial review was left in doubt (a doubt now largely resolved favorably but seriously interfered with). Subsequent practice, since the hand-over, has brought further peril.

 

A.   Democracy

It is important to consider the full force of legal obstacles in the way of democracy in Hong Kong. Such obstacles not only stand on the path to democracy but are indicative of both the democratic deficit built into the system and the value commitments of those in power. Essentially, if no previous amendments occur, when the 2007 target year for this decision dawns Hong Kong, under the Basic Law, will have in place a 60 member legislature where only half of the seats are directly elected. The remaining seats will largely be filled by narrow-based functional constituencies.[21] The Chief Executive will have been chosen by an 800 member Election Committee, itself chosen by largely narrow-based functional constituencies. These functional constituencies, by their nature, tend to favor pro-Business candidates. In this regard, it should be noted that Hong Kong’s functional constituency system is quite distinguishable from certain legislative power-sharing arrangements used in some countries to ensure representation of ethnic or religious minorities. In Hong Kong this electoral system seeks merely to empower an elite business minority. Democratic theory would tell us the interests of economic elites are already well represented in typical democratic systems (money speaks in electoral politics). Accordingly, this privileging of an elite minority and undermining of majority control would appear to violate the very essence of democratic constitutionalism, as well as equal rights. Though the Basic Law ultimately calls for universal suffrage, it will take a two-thirds vote in the Legislative Council and the Chief Executive’s approval for any amendment to succeed. Given the poor track record of conservative candidates in direct elections, it will be an uphill battle to convince them of the merits of this course of action. And yet, the pathology of Hong Kong’s political system to date makes further democratization a matter of great urgency.

Any hope that the current crop of directly elected legislators can use their foothold to expand democracy incrementally through expansion of the franchise under electoral legislation (of the type enacted in 1995) is not hopeful. Not only is there the two-thirds vote requirement to institute full universal suffrage after 2007, but there are a plethora of other constraints on democratic action. These constraints mostly relate to legislative powers.[22]  Members of the Legislative Council are required to get the Chief Executive’s approval before they can introduce bills involving expenditure or government policy. Additionally, amendments to government bills and motions or bills introduced by individual members of the Legislative Council require majority approval by each of two different groups of legislators: thirty from functional constituencies and thirty eventually made up of members directly elected.[23]  The government argued, in challenging the Legislative Rules of Procedure, that even amendments to government bills, proposed by legislators, require the Chief Executive’s approval.[24] The chance of avoiding these constraints through early amendment of the Basic Law is also blocked. The general power to amend the Basic Law is vested in the National People’s Congress (NPC).[25]  Even the submission of local proposals for amendments requires a two-thirds vote in the Legislative Council, the consent of two-thirds of the local NPC deputies, and the approval of the Chief Executive. To make matters worse, the elections that have been held give an appearance of unfairness because this model results in groups of candidates who win large majorities of the popular vote getting a much smaller percentage of the actual seats in the Legislative Council.[26] What is very clear is that any movement toward closing this democratic deficit will require persuading a very large number of currently favored politicians that the current model is fundamentally flawed and that correcting its flaws is a matter of urgency.

There may be some sign that even the most ardent supporters of slow incremental change are beginning to realize the cost of such democratic deficit. The democratic deficit appears to produce a legitimacy gap between the directly elected legislators and those who are not. Because those with popular electoral support are in a permanent minority position under this model, they are essentially left to the politics of shame to pressure officials in power or in the legislative majority to support popular initiatives. Hong Kong is left with a government prone to high levels of expediency constrained only by the pressure of public shame. We have a government, in Jon Elster’s terms, which is unable to make itself unable to interfere when it is expedient. This system tends to be confrontational with substantial value discord and encourages popular suspicion of political leaders on both sides. Poor electoral turnout in the 2000 election may be indicative of a loss of confidence.

While poor voter participation may favor those who are supportive of those currently in power, who are also more supportive of China’s policies, such politicians should not celebrate too loudly. In a system where no popularly elected politicians accept responsibility for government missteps, the national government in Beijing will frequently find itself credited with the most questionable policies of its anointed politicians, undermining its legitimacy and the loyalty of Hong Kong people. This situation could become intolerable for the Basic Law architects, over the long term. This seems to be an unnecessary cost to bear. Hong Kong appears to have a lot of the democratic architecture in place. There is a well-developed party system, the administration of elections seems to go well, a vibrant press attuned to political coverage is in place and the public is familiar with the process. There are few want-to-be democracies with such a fully developed foundation.

In a constitutional system where democratic participation is the fuel that drives all the other components of orderly and principled government, the democratic deficit may cause the system to run out of gas. Will people continue to have confidence in a system they cannot control? Will they participate in democratic processes when their vote does not determine the outcome? How many government missteps will be tolerated before confidence in basic institutions starts to wan? When will investors be infected with this lack of confidence, now evident in voter apathy? While in some societies one may relate voter apathy with general voter satisfaction, it will be hard to interpret this in such a manner in a society where voters lack the capacity to choose their government. Does the lack of democracy effect the functioning of the constitutional system and the people’s ability to protect their legal institutions from interference? When will widely valued rights be put at risk? Will corruption or other forms of malaise creep into the system and undermine its famous competitive qualities? There is already concern that Hong Kong businessmen have learned to do business the mainland way. The democratic deficit, when viewed in the context of the whole constitutional system, does not seem to be something that can be widely sustained beyond the transition period. Query what will be the cost in public confidence of waiting until 2007 to correct this problem? Clearly, delaying universal suffrage for both the Legislative Council and the Chief Executive beyond 2007 will come at great cost in this regard.

Should the Chief Executive cling to the Electoral College method of extremely limited franchise, while allowing universal franchise in the election of the Legislative Council? I think not. The liberal constitutional system, of the type that Hong Kong has embraced, is one that values human rights and the rule of law, but especially prioritizes democracy. The legislative design at the moment, as noted above, tends to deny substantial power in respect of government policy to the Legislative Council. But a fully elected Legislative Council, facing a “non-elected” Chief Executive could be expected to escalate the use of public pressure and the politics of shame. It would appear that the only way such Chief Executive could avoid such pressure is to be directly elected territory wide or shift to a figurehead role, allowing the government to be formed in the Legislative Council.

For the Chief Executive to remain not directly elected but to cling to real power in some form of hybrid parliamentary system, where members of a majority coalition are appointed to the Executive Council and to head government departments, would be to invite unstable government. Such system risk a walk-out at any juncture where there is dissatisfaction with the government’s direction. Such parliamentary-like officials would have responsibility without power, a very unstable situation and one not likely to be agreed  to, at least by the present democratic camp. In the debate over presidentialism versus parliamentarism, the constitutional imperatives, to encourage an orderly flow in the constitutional dialogue and reduce inter-branch tension, seems to point to an all or nothing approach. Whether such Chief Executive should be directly elected under the current structure or move to figurehead status, embracing a parliamentary structure, is an issue with no clear indication. Both the Basic Law and the tradition of a strong governor or chief executive in Hong Kong would tend to point to the former. While some scholarship has indicated the likely stabilizing quality of parliamentarism in such places as Latin America,[27] I am doubtful that such reasoning (emphasizing the need to escape the grip of former military rule or even corporatism) has application in Hong Kong.

 

B.    The Human Rights Structure

The importance of human rights, especially free speech related and minority rights, to the kind of constitutional discourse noted in the theory discussion above is apparent. In this regard, the Basic Law appears facially adequate because it includes the various rights specified in the Joint Declaration and specifies that any restrictions on rights are subject to the requirements of the international human rights covenants.[28] Rights were placed at some risk in the Basic Law in provisions beyond the rights chapter, allowing for application of national law in cases of emergency or where the central government determines there is “turmoil” in the region and in provisions requiring the enactment of local laws against “sedition” and “subversion.”[29] With an adequate rights chapter and such ambiguous terms in other sections, rights protection ultimately depends on interpretation in the exercise of executive power, in processes of enacting and enforcing laws, and especially in the exercise of constitutional judicial review.[30]

The evolving human rights regime in Hong Kong has revealed a surprising vitality, though there are serious threats. A rich public discourse fuels this vitality. This discourse is evident in both cases and in the legislative process.[31] The 1984 Joint Declaration, and later, the tragic events at Tiananmen, stimulated a great deal of public discussion of human rights in Hong Kong. Hong Kong people have generally exercised their rights and seem to value them. The strong guarantees in the Basic Law itself and this public sentiment gives cause for hope regarding human rights. During the last years of colonial rule the largest immediate local threat to rights development was the rather conservative character of the evolving human rights jurisprudence. In spite of this, there was a surprising vitality both in political discussion and in the courts. The democratic deficit and attacks on the judiciary are the greatest causes for concern about continued protection of human rights. The continued exercise of freedom of speech and association is the greatest cause for optimism. At the same time, it is important to bear in mind that there have been threats to these foundation rights. In this regard, the stark contrast between popular discourse regarding free speech broadly understood and the discourse on this topic from some sectors of the favored elite is striking. This tends to demonstrate a values gap between a majority of the people and those anointed with power that is important in reflecting on the democratic quality of  the constitutional system.

The international character of the emerging rights regime is its’ most striking quality. Hong Kong is legally at a crossroads of international human rights forces. China stimulated much of this energy by including substantial human rights guarantees, the international human rights covenants, and maintenance of the common law in the Joint Declaration. Because of this, the 1991 Bill of Rights Ordinance (which remains in force after the handover, minus certain key provisions) copies almost verbatim the International Covenant on Civil and Political Rights (ICCPR).[32] When the Bill of Rights Ordinance was enacted, the colonial constitution, the Letters Patent, was amended to include the ICCPR.[33] So under this rights regime the courts were called upon to exercise constitutional judicial review power before the handover, and have done so, under similar Basic Law provisions, since the handover. Here again, the international character of the rights regime was enhanced by frequent judicial reference to overseas common law and European Union precedent.[34] Subsequent to the handover, the Chinese government, to its credit, announced it would continue to file reports on behalf of Hong Kong under the international human rights covenants. After the enactment of the Bill of Rights Ordinance the government, and the increasingly democratic Legislative Council, in the last years of colonial rule, reformed many non-conforming colonial laws to better protect human rights.[35]  Many of these reforms especially aimed to better secure equal protection, freedom of speech and labor rights.

There is, however, reason for some pessimism about human rights, evident in developments  following the handover. Basic Law Article 160 provides that the Standing Committee of the National People’s Congress (NPC), at the time of handover, could determine existing laws to be in contravention of the Basic Law, and therefore invalid.  Assisted by its transition Preliminary Working Committee, and later the Preparatory Committee, China proceeded to review all of Hong Kong’s laws. Unfortunately, in the strained politics of the time, this became a vehicle to reverse the most important reforms of draconian colonial laws that had occurred in the years leading up to the handover, especially respecting reform legislation which Chinese officials had earlier opposed. The use of Article 160 review to take away rights, rather than protect them, became a source of Hong Kong anxiety about future rights security. The post-handover period saw a list of other questionable steps in this regard by the Provisional Legislature on the rights front.[36] Through it all, the general attitude of hostility to human rights protection is troubling. So far there has been no dramatic action to radically deny such basic rights as free speech, freedom of press and freedom of association, so vital to Hong Kong’s constitutional processes, but the hostile attitude does give cause for concern.[37] The protection of human rights ultimately depends on enforcement.

 

C. Rule of Law

Whether the current system comes up short regarding human rights depends a great deal on interpretation and the institution of constitutional judicial review.[38] As noted above, the Joint Declaration and the Basic Law implicitly require the exercise of constitutional judicial review under the Basic Law.[39] The power of constitutional judicial review has, in fact, been acknowledged by the Hong Kong Court of Final Appeal, though the future vigor of such review has been put in doubt by the likely chilling effect on the Court flowing from the events surrounding the right of abode case.[40] Article 158 of the Basic Law specifically vests the power of interpretation of the Basic Law in the Standing Committee of the NPC. However, the Article further specifies that the Standing Committee shall authorize local courts, when adjudicating cases, to interpret those provisions, which are “within the limits of the autonomy of the Region” and “other provisions.”[41]  Under further provisions in Article 158, if courts are confronted with the interpretation of provisions, which are the responsibility of the Central People’s Government or concern local/central relations, then they must refer the matter to the Standing Committee of the NPC. The Standing Committee, upon such referral, then decides the matter with the advice of the Committee for the Basic Law.[42] Other provisions not to be addressed at length here shape the scope of the Courts power of review not to include matters of local central relations and matters of central authority.[43] The scope of these provisions and others are still to be worked out in local jurisprudence and related politics.

The above noted Ng Ka Ling judgment arose out of a challenge to a local Hong Kong immigration statute which severely inhibited the Basic Law guaranteed right of abode in Hong Kong for children born to Hong Kong resident parents.[44]  In exercising the power of constitutional judicial review to overturn several provisions, which heavily burdened that right, the Court declared it would take a purposeful and generous approach to interpreting constitutional rights guaranteed in the Basic Law.[45]  In the judgment, the Court also explicitly declared that the CFA would have to determine when, in deciding disputed cases, to refer provisions respecting local-central relations or matters of central authority to the Standing Committee of the NPC.[46]  The court took a narrow view of when such referral was required and concluded it was not required in this case.

While this decision was widely applauded in Hong Kong for its firm and unambiguous defense of human rights and the rule of law, there was a very severe response on two occasions.  Immediately after the judgment was issued, leading mainland officials and “legal scholars”, as well as their local “pro-China” supporters attacked the part of the judgment where the court articulated in orbiter dicta its right to “examine” acts of the NPC, claiming the Court was putting itself above the NPC.[47]  They claimed the judgment had to be “rectified”.[48]  The HKSAR government filed an unprecedented motion for the CFA to “clarify” the orbiter dicta in its judgment declaring its power to examine acts of the NPC.[49]  This clarification was granted in a second brief judgment in which the Court explicitly stated that it did not hold itself above the NPC, a judgment in which the Court essentially restated its original position.[50]  A second, more serious attack on the judgment and the rule of law occurred in May 1999 when the government, after issuing a report claiming the judgment would produce a flood of 1.67 million migrants into Hong Kong, made a request to the Standing Committee of the NPC to interpret the relevant provisions of the Basic Law, to effectively overturn the CFA Judgment.[51]  As a result of the latter action, the finality of judgments of the CFA in Hong Kong has clearly been called into question and the rule of law has been put in doubt.

When it comes to the rule of law in Hong Kong, there are several troubling aspects of the circumstances surrounding this case.  The most blatant damage is reflected in the simple reality that final judgments in cases in Hong Kong, at least where constitutional rights are concerned, are simply not final.  They are subject to being overturned by a combination of local government and Mainland interference.  This will certainly have a chilling effect on courts. There is reason for concern that the Hong Kong courts will be faced with further official political attacks in the future.  This may lead to intimidation and timidity in the courts.  There is specific concern that several of the political attacks on the court’s judgment were initially publicly joined in by members of the Basic Law Committee, the very committee which would be called upon to advise the Standing Committee of the NPC when issues of Basic Law interpretation are referred.[52]  Some members of this committee showed little concern to maintain a judicial demeanor, leading to some suspicion that any future advice forthcoming from this committee will be of a political, rather than legal, nature.  The government’s motion for clarification raises further concern about the court’s independence and finality. The only positive aspect of this procedure and the resultant extraordinary judgment is that the Court appeared to stick to its substantive position in articulating its clarification, though the Court, in a latter case, fully endorsed the NPC ruling.

Given the harshness of the government’s attack on the Court of Final Appeals Judgment can that court be counted upon in future to take the kind of firm stand on the protection of human rights it took in the NG Ka Ling case? Would an elected government, have confronted the courts judgment in this manner? Would such a government have pursued a more cautious response, through legislative or even constitutional amendment, as is usual under constitutional democracy? Would the level of demagoguery that occurred have occurred if officials faced electoral approval? Would this legislation, in a form that attracted such severe court surgery even have passed in an elected Legislative Council? Would the legislative process itself have spawned the kind of constitutional debate that could have avoided this confrontation? Clearly democratic governments can pass questionable laws, but would the system have suffered such a severe crisis in such case? What is the long-term cost of this attack on the Court? Will the constitutional flow of discourse in the paradigm of a living constitution be stifled? Or will judges avoid sensitive issues, too readily invite standing committee review or simply give in to political pressure? Can we expect the government to effectively overturn (by inviting this kind of NPC review) the Court again? Can investors and insiders count on the circumspection of a government that is unable to make itself unable to interfere when it seems expedient? Since institutions of constitutional judicial review are essentially in place, including jurisprudential and professional support, the main concern here is to encourage democratic development to reduce the incentive to interfere. The constitutional judicial review engine runs best when fueled with full popular democracy. Full democracy also seems the best way to engender the degree of circumspection that constitutional government requires. At a minimum one would like to see clear constitutional guidelines constraining this kind of interference.

 

III. Conclusion

       Hong Kong’s constitutional system has been put under severe stress in the transition period. Government missteps (only a few of which are mentioned here) and crises have been frequent. The politics of shame has proven to be the only effective channel for public action. Nearly all public officials have a legitimacy problem. Those in power and favored by the system lack legitimacy because of their lack of direct electoral validation. Even those minority legislators who are directly elected increasingly lack legitimacy because they lack power and are unable to represent the voters who have elected them. This produces voter apathy of the severest kind. At the same time the various complicated elector models (clearly aimed to water down the opposition) confuse the voters and create a Hobsian world of all against all. Without severe discipline, even members of the same party wind up fighting each other and internal party conflicts are legend. At the same time, the dynamics between the branches of government are put in jeopardy by intractable constitutional conflict. The most legitimate members of the legislature are nearly certain to oppose the executive and the only conceivably independent institution, the court, had to be tamed. Full electoral democracy is needed to get this system running again before the political break-downs result in higher cost for the economy and the wellbeing of the people. The degree of damage done to date is difficult to assess but persistence of the existing electoral system leaves little doubt that further damage will occur..