The High Court of the People: Popular Constitutionalism in Hong Kong under Chinese Sovereignty

• Author: Eric C. Ip
• DOI: http://doi.org/10.1111/lapo.12023
• Published date: 01 July 2014
• Date: 01 July 2014

The High Court of the People:

Popular Constitutionalism in Hong Kong

under Chinese Sovereignty

ERIC C. IP

Popular constitutionalism rarely arises in authoritarian polities. In the absence of

genuine elections and referenda, aggrieved and disenfranchised citizens are more

likely to resort to extraconstitutional action to defend themselves, to which the

regime may respond with decisive suppression. Systemic popular constitutionalism

did emerge in Hong Kong, currently under Chinese sovereignty, however. Through

coordinated mass resistance based on shared constitutional understandings, large

numbers of residents have succeeded in restraining the appointed Hong Kong

chief executive from deploying his full range of powers, obliged China to make

concessions on electoral reform it would not have made otherwise, and enabled

the Basic Law, an imposed constitution, to remain relevant. This article specif‌ies

three preconditions under which the residents of Hong Kong have, in the teeth of

authoritarianism, managed to adjudge the constitutionality of the acts of the

ruling elite with their feet. These preconditions, nevertheless, are idiosyncratic,

and may not endure the recent mounting tensions between Hong Kong and China

[Correction added on 5 June 2014, after f‌irst online publication: the phrase

“to authoritarian politic” has been removed from the last statement in the

abstract.].

The construction of constitutional meaning in liberal democracies has never

been the exclusive province of courts. In the United States, the electorate

and their representatives in Congress have been no less active in shaping

that meaning than federal judges (Serota 2012; Dorf and Morrison 2010;

Friedman 2010; Miller 2009; Persily, Citrin, and Egan 2008; Tushnet 2006;

Kramer 2004). In Commonwealth jurisdictions, which recognize the

supremacy of Parliament, popularly elected parliamentarians have long

played pivotal roles in delineating the scope of constitutional rights and

government power (Gardbaum 2013). Consider now the possibility of con-

stitutional interpretation outside the organs of the state in the fundamen-

tally different political context of authoritarianism. Intuition rejects such

a possibility at once. Authoritarian constitutions are, as a rule, far less

Address correspondence to Eric C. Ip, The Chinese University of Hong Kong Faculty of Law,

Room 607, Floor 6, Lee Shau Kee Building, Shatin, New Territories, Hong Kong. Telephone:

(852) 3943 7823; E-mail: ericip@cuhk.edu.hk.

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LAW & POLICY, Vol. 36, No. 3, July 2014 ISSN 0265–8240

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12023

consequential than liberal democratic ones, and thus, present little need

for interpretation (Law and Versteeg 2013). Recent empirical research,

nonetheless, has interestingly discovered that the constitutional documents

of at least some authoritarian polities are not merely irrelevant (Ginsburg

and Simpser 2014). The current Constitution of the People’s Republic

of China, ratif‌ied in 1982, is one example. While it does not effectually

constrain the government of the world’s most populous authoritarian

state (Peerenboom 2012), it may be seen as meaningful nonetheless qua

“authoritative ideological statement and communicative act,” whose

amendments have coordinated internal discourse between factions of the

Chinese Communist Party, and signaled Beijing’s latest reform directions

(Elkins, Ginsburg, and Melton 2009, 172). Citizen participation in the

constitutional-interpretive process can defeat the very purpose of authori-

tarianism, however. This is why popular constitutionalist movements, like

Charter 08, led by Nobel Peace laureate Liu Xiaobo, have so far ended in

failure (Dowdle 2012).

This article aims to address why popular constitutionalism (cf. Kramer

2004), or the phenomenon in which large numbers of citizens mobilize on

shared constitutional meanings to resist perceived regime malfeasance,

emerged in Hong Kong in spite of the persistence of authoritarianism.

Hong Kong, an autonomous Chinese Special Administrative Region

(SAR), presents an unprecedented case study of popular constitutionalism

outside the United States and inside an authoritarian polity. Despite having

an independent judiciary committed to human rights and the rule of law,

Hong Kong has never been a democracy. Since July 1, 1997, the SAR has

been ruled by a liberal authoritarian or benevolent authoritarian regime

(Fong 2013, 858; Lui and Chiu 2012; Williams 2005; Moran 1999; cf. Tam

2013; Boniface and Alon 2010, 797; Ma 2007), which does not permit its

people to choose their own government and the other half of their legisla-

ture. The political system of Hong Kong offers just another example of

“hybrid” or “competitive authoritarianism” (Wong 2014; Fong 2013),

whose rulers need not arbitrarily arrest dissidents or shut off open criticism

of their policies in order to be authoritarian (Tushnet 2014; Levitsky and

Way 2010). Being a dependency further complicates the picture: the terri-

tory is an economically dynamic former British Crown Colony, which,

regardless of its subnational status, has enjoyed substantial autonomy (but

not democratic self-rule) since the latter half of the twentieth century, f‌irst

from the United Kingdom, and later, the People’s Republic of China

(Carroll 2007).

The Hong Kong Basic Law, promulgated by the Chinese National

People’s Congress on April 4, 1990, to domesticate the Sino-British Joint

Declaration on the Question of Hong Kong of 1984, set in motion an

unprecedented merger between a cosmopolitan capitalist enclave and the

world’s largest remaining Leninist Party-state (Chan 1991) whilst divorc-

ing the territory from its new mainland in virtually all matters but those

Ip THE HIGH COURT OF THE PEOPLE 315

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary