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Occupy Hong Kong: Hong Kong’s Constitutional Moment of 2014 Begins

Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law

民無信不立。 [If the people have no faith in their rulers, there is no standing for the State.] – The Analects

Hong Kong’s long-awaited constitutional confrontation has begun.  In the early morning of September 28, 2014, the Occupy Central with Love and Peace (OCLP) movement declared that its civil disobedience campaign had begun, three days earlier than originally planned.  The announcement followed a week of strikes by university and secondary school students and a dramatic occupation of the forecourt in front of Government Headquarters in Admiralty District, near the former HMS Tamar.  The movement has since spread far beyond its originators’ expectations, with blockades in three districts of Hong Kong Island as well as the Mongkok and Tsimshatsui districts in Kowloon.

One of the original targets for the protesters’ anger was the decision by the National People’s Congress Standing Committee (NPCSC), issued on August 31, to impose significant restrictions on the nomination process for Chief Executives – the practical effect of which is to ensure that only persons Beijing deems politically palatable can run.  More importantly, however, the Umbrella Revolution – as the protest has now been dubbed – is a warning that the public has lost confidence in Hong Kong’s governing institutions.

The executive branch, led by Chief Executive C.Y. Leung, has been the most obvious target of the protesters’ ire.  Selected by an Election Committee of 1,200 with a composition carefully calibrated to favor pro-Beijing interests, the current incumbent was chosen in a “race” which showed heavy signs of influence from the Beijing Government and its liaison office in Western District. Although the NPCSC’s Decision would permit the public to vote for candidates on a “one person, one vote” basis in 2017, the Election Committee would survive – in fact, if not in name – as the Nominating Committee; each of the 2-3 candidates permitted to run would require the support of at least half of the nominators.  Other aspects of the executive branch have also come under scrutiny.  The decision by the police force – previously renowned for its professionalism before 1997 – to disperse crowds with teargas drew widespread condemnation from the legal profession and directly contributed to protester turnout.  And former Chief Secretary Rafael Hui, currently on trial on corruption-related charges, disclosed in evidence that he received a secret payment of HK$11 million (about US$1.42 million) from Beijing.

Although Hong Kong’s pro-democracy legislators have also shown increasing ire at the continued impasse on electoral reform, the momentum of the protest movement was dictated largely by university and secondary school students.  This reflects the legislature’s lack of credibility as a means of representing public sentiment.  Alyssa S. King and I have previously written on I-CONnect about the unrepresentative nature of Hong Kong’s Legislative Council, half of which is composed of so-called “functional constituency” seats; the Decision ensures that there will be no change in the Legislative Council’s composition until 2020 at the earliest.  Weakened by years of bickering within the pro-democracy camp, no democratic legislator could credibly claim the mantle of leader of the campaign for democratization.

Although the Judiciary has faced no such crises of credibility yet, its position, too, seems newly precarious.  Amidst reports of intense pressure from the Central Government’s Liaison Office in Hong Kong and State-owned enterprises to back Law Society president Ambrose Lam, the solicitors’ representative body passed a motion of no confidence in Lam on August 14, 2014.  Unusually, both current and former Court of Final Appeal judges – Lord Neuberger NPJ, current Chief Justice Geoffrey Ma, and Ma’s predecessor Andrew K.N. Li – have also weighed in on the White Paper, perhaps galvanized by a threat from Basic Law Committee Vice-Chairman (and former Secretary for Justice) Elsie Leung to declare allegiance or resign.[1]  Although there have been defences of the White Paper, almost all of these have come from outside the Hong Kong legal profession.

The Umbrella Revolution, then, is significant not merely as a bottom-up “constitutional moment.”  It is significant because it reflects a complete, or near-complete, loss of confidence in Hong Kong’s public institutions as avenues for public communication.  It is increasingly apparent that only Beijing – not the Hong Kong Government in Tamar – has the ability to resolve the ongoing crisis.

But Xi Jinping’s hardline tactics elsewhere – and statements by Beijing’s plenipotentiaries such as Elsie Leung suggesting that Hong Kong would be better off as a directly-governed Chinese municipality – offer few grounds for confidence.  Perhaps, in due course, the crowds in Admiralty, Central, Causeway Bay, Mongkok, and Tsimshatsui might disperse.  But the clouds of distrust that have settled over Tamar – and over Zhongnanhai – will not.

Suggested Citation: Alvin Y.H. Cheung, Occupy Hong Kong: Hong Kong’s Constitutional Moment of 2014 Begins, Int’l J. Const. L. Blog, Oct. 1, 2014, available at: http://www.iconnectblog.com/2014/10/occupy-hong-kong-hong-kongs-constitutional-moment-of-2014-begins

[1] 梁愛詩:倘不願愛國 可不當法官 [Elsie Leung: If Unwilling to be Patriotic, Judges may Resign], Mingpao (H.K.), July 22, 2014.

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Published on October 1, 2014
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