Whose “Constitutional Moment” is it Anyway? A Response to Professor Chen on Electoral Reform in Hong Kong

—Alyssa S. King, lawyer in New York and 2012 graduate of Yale Law School, and Alvin Y. H. Cheung, New York University School of Law*

As the controversy over Hong Kong’s Chief Executive electoral reforms for 2017 rages on, it is vital not to lose sight of the parameters of the debate.[i] The importance of the dispute can scarcely be overstated; to that extent, Professor Albert Chen’s use of the phrase “constitutional moment” to describe the arguments over 2017 reforms is apposite.[ii] A March 2014 academic roundtable at the University of Hong Kong underscored the importance of the right to be nominated – a position vehemently rejected by Basic Law Committee member Professor Rao Geping.[iii] Beijing’s bottom line – that only “non-confrontational” candidates will be permitted to run[iv] – implies that it will brook no compromise over the issue of nomination. A political “grand bargain” over nomination of candidates for Chief Executive seems more distant than ever. In such a charged atmosphere, it is vital to avoid misunderstanding what is truly at stake.

Professor Chen uses a vocabulary that is inappropriate to describe the Hong Kong context. The problem with Professor Chen’s use of “constitutional moment” and the vocabulary that surrounds it is not the appropriation of this vocabulary per se. Both legal theory and the common law are littered with appropriations of terms that mean different things in different contexts. The problem is that Professor Chen’s intent does not seem to be to redefine these terms for a new situation, but rather to signal a closeness between this situation and a constitutional moment in a representative democracy – indeed, to treat these things as one and the same. But they are very much not the same. As a result, Chen’s description serves to obfuscate rather than clarify what is really at stake in Hong Kong.

I.                    Chen’s use of “constitutional moment”

Several passages in Professor Chen’s piece suggest that he wishes his reader to treat the current “constitutional moment” as one in which the people of Hong Kong are involved, as they would be in a case of constitutional reform brought about by a popular movement. The “people of Hong Kong,” Chen declares, “will live through their constitutional moment.”[v] He notes that “whether universal suffrage for the election of the CE in 2017 will be realized or not depends ultimately on the collective will of the Central Government, the HKSAR Government and the people of Hong Kong as represented by its Legislative Council.”[vi] He continues, “the success or failure of the forthcoming electoral reform hinges on whether the Government can propose a model for the CE election which satisfies the democratic aspirations of the people of Hong Kong as represented by at least a two-thirds majority in the Legislative Council.”[vii] In fairness to Professor Chen, his latter passage acknowledges that reform is not directly in the people’s hands – they are “represented” by the Legislative Council. But he ultimately suggests that the choice of constitutional form is a matter of popular will, expressing the hope that “the people of Hong Kong” will find the inevitable compromise between interests “acceptable as a sincere and reasonable attempt to achieve the delicate balance between ‘one country’ and ‘two systems.’”[viii]

Those familiar with the more robust version of democracy offered by Professor Benny Tai’s Deliberation Days,[ix] will note that “the people” in Professor Chen’s telling seem very passive. The constitutional moment is one that they “live through” rather than create. The people are not heard from directly. Rather they are represented by a Legislative Council. But whether the Legislative Council can assent to anything in the name of the people depends on its democratic bona fides. Despite attempts at reform, its popular legitimacy is still very much in question.[x]

To understand the distance between the situation in Hong Kong and the constitutional moment imagined by popular constitutionalism, it may be useful to examine the “constitutional moment” as theorized in the American context by Professor Bruce Ackerman, who coined the term in the context of several tomes examining U.S. constitutional history. A constitutional “moment” is something of a misnomer, as Ackerman’s theory actually involves several different phases, in which social movements credibly signal desire for constitutional change, the demand is crystallized into a set of specifics by politicians who can credibly claim to represent the people, and finally, the change is ratified through legislation, rulemaking, and court interpretation.[xi] The permanence of the constitutional change is a product of a system that provides ample opportunity for people to accept, and most importantly, to reject change before it has solidified. [xii]

Ackerman’s theory relies for its particulars on the structure of U.S. institutions and the way that party politics has taken shape in that country.[xiii] The structure is accidental, a result of a constitutional design that today manifestly does not work as its founders intended.[xiv] A constitutional moment may look different in different countries, and even in different contexts within the same polity.[xv] Other theorists of popular constitutionalism have focused their attention more squarely on this question of popular acceptance, looking at how movements inside and outside party politics ratify or resist alterations to the constitutional landscape.[xvi] When one takes up the vocabulary of “constitutional moment” to discuss the assent of “the people,” as both Professors Chen and Tai have done, one aligns oneself with this intellectual current.

One can imagine many constitutional settings in which “the people” are not the relevant stakeholders, or not the only ones. But Professor Chen accepts the idea that the people are the stakeholders in Hong Kong, envisioning a fairly orthodox, democratic, constitution-changing process. The question is whether this description fits Hong Kong: does this moment belong to the people? And who will speak for them?

II.                   An authoritarian “constitutional moment”

Analogies to representative democracy are tempting in Hong Kong. Although Hong Kong does not adopt the Westminster model of a parliamentary democracy, legal discourse in the former British colony has been heavily influenced by the ideology of a representative legislature. The (at times fiercely contested) geographical constituency seats in the Legislative Council lend to the impression of a legislature capable of representing the will of the people. Yet the analogy is inapt – for Hong Kong has never had, and still does not have, a fully democratically elected legislature.

Half of the Legislative Council’s members are elected through a “functional constituency” system, the effect of which is to give disproportionate representation to specific social sectors – including agriculture, the professions, and business interests.[xvii] Amendments to Government-proposed legislation, as well as Private Members’ Bills, require a majority in both geographical constituency and functional constituency seats to pass.[xviii] As early as 1995, the Human Rights Committee criticized the functional constituency system as a system of unequal suffrage.[xix] The response of the UK (and colonial Hong Kong) Governments at the time was that the functional constituency system was intended to be a transitional step to full democracy.[xx] Yet, more than sixteen years after the transfer of sovereignty, true representative democracy has eluded the legislature.[xxi] Chen’s reference to the Hong Kong people being “represented” by the Legislative Council masks the very real disagreements over whether the legislature is democratically legitimate at all.[xxii]

The current debate over Chief Executive electoral reforms might be better understood as an authoritarian “constitutional moment.”[xxiii] Hong Kong’s last major breakthrough in electoral reform – regarding legislative electoral arrangements for 2012 – provides another example of an authoritarian “constitutional moment.” Reform was only made possible by closed-door negotiations between the Democratic Party and the Central Government’s Hong Kong liaison office.[xxiv] However, the process by which such compromise was reached attracted bitter criticism – and, for the Democratic Party, electoral defeat.[xxv] Two points are particularly noteworthy from this episode. First, major political figures in Hong Kong rejected what representative institutions do exist in Hong Kong and sought to negotiate directly with Beijing. Second, the public rejection of the resulting compromise reflects the frustration of a Hong Kong public who desires active participation, rather than passively watching from the sidelines as their constitutional fates are decided for them.

The Hong Kong Government purports to be mediating between Beijing and democrats, but both sides have largely ignored it. When Li Fei, Chairman of the National People’s Congress Basic Law Committee, visited Hong Kong in November 2013, his statements regarding political vetting of Chief Executive candidates were immediately viewed as suggesting that the Hong Kong Government’s then-imminent consultation was a whitewashing exercise.[xxvi] To the extent that the Government has sought to fulfill its mediating role, its bona fides have been called into question.[xxvii] And the Chief Executive himself – with his “dual mandate” as representative of the Mainland and head of the Special Administrative Region’s government – has done little to dispel suspicions.[xxviii]

It is this dual mandate that lies at the heart of the disagreement. Beijing is deeply reluctant to relinquish all control over who its representative in Hong Kong is. Yet the Hong Kong public has been led to believe that the Chief Executive is their representative, and they are equally loath to have their representative chosen for them. The contradiction within the dual mandate is symptomatic of the larger contradictions in “One Country, Two Systems.”

The current debate over electoral reform has far-reaching implications. The politics of that debate have democratic elements and aspirations. But political power ultimately flows from Beijing, where it is not subject to democratic control. The constitutional arbiters are not so much the people of Hong Kong as the people of Zhongnanhai.[xxix]

III.                Towards a deeper discussion

Post-1997 Hong Kong is an invitation to descriptive error, precisely because so much of its legal discourse seems so familiar. But the Hong Kong context differs from other common law jurisdictions, and from representative democracies, in important ways. Although the adaptation of terminology is inevitable, care must be taken to recognize the differences in the Hong Kong context and justify such “borrowing.” Failure to do so risks creating a pretense of democracy where little democratic control actually exists. Such pretense creates the false sense that Hong Kong is like “other” representative democracies. It also invites the importation of practices – such as deference to certain governmental actors – that exist for reasons in other systems, when such reasons do not exist in Hong Kong. The denizens of Zhongnanhai may be adept at many things, but negotiating directly with protesters, or currying favor with a broad electorate, are unlikely to be among them.

We should also be wary of over-generalizations when describing the various political factions involved. Professor Chen refers to “the people” as a monolithic entity. We do not know what “the people” want, because they are not allowed to vote on something that would allow them to show what they want. In an environment where university pollsters have received withering criticism and mock Chief Executive polls have been knocked offline by hacking attacks, reliable barometers of what “the people” want are increasingly difficult to find.[xxx] And the opposite error should also be avoided. Zhongnanhai itself is full of factions,[xxxi] each with their own power bases and agendas; it is unclear whose interests would be served by any particular outcome, or who would be in a position to pursue that outcome. The opacity of the central authorities presents a special challenge to a crowd trying to calibrate its own responses – when can it press forward and when will it have pushed too far? The memory of the “constitutional moment” of June 4, 1989 must weigh heavily on all sides.[xxxii]

At the point at which central authorities take a decisive hand in the proceedings, especially when they speak directly rather than through the Hong Kong Government, the debate threatens to overrun Hong Kong-specific bounds. This development would not necessarily be positive for the city. Well-reported street protests and robust media debates may look shocking in the Chinese context, although they are routine in the Special Administrative Region. If the APEC summit scheduled for September was moved from Hong Kong to Beijing because of concerns over protests – as at least one commentator has suggested – that would suggest that the routine nature of protest in Hong Kong is being lost in concern over the importance of the moment.[xxxiii] The Central Government and protestors have negotiated successfully in the past. In Fall 2012, concerted protests by students and parents over the introduction of “national education” into the school curriculum eventually led those plans to be scrapped.[xxxiv] But if the debate reaches beyond Hong Kong, compromise is harder.

A “constitutional moment” in democratic constitution making cannot be ratified all at once. Constitutions present difficulties for democracy if they propose to bind the present with the past. But a constitutional moment is ratified across time, by the continued recognition of its significance and popular appropriation of its meaning. This continued ratification provides the constitution its democratic pedigree. Professor Chen hints at this process when he notes that the people will ratify, or not, whatever compromise occurs. Without electoral reform, the people may have precious little opportunity to ratify it except through the presence – or absence – of direct action.

Shown in this light, the precarity of Hong Kong constitutional politics comes into better focus. The Hong Kong Government serves two masters. Local desires are not fully channeled through electoral forces. And the Central Government’s reactions can be hard to anticipate, especially for Hong Kongers who come from a political culture in which greater transparency is still expected. Professor Chen usefully suggests that there is something special and significant about the current debate – and proposes the Legislative Council and Hong Kong Government as candidates to resolve the current impasse. We argue instead that the streets and Central Government are the main actors. This combination is, admittedly, significantly more combustible. And that is why it needs to be identified as such.

Hong Kong is not a case of normal democratic politics, as Professor Chen acknowledges. Nor is it a moment of popular constitution making. When the people make and ratify constitutional change, they are not merely consulted – they are supposed to control the outcome. Without sufficient institutions that reflect the popular will now and in the future, it is not the people’s constitutional moment at all, but someone else’s. We want that difference to be clear, to the comparative law community that seeks to learn about Hong Kong, and to the Hong Kongers making history happen.