Democratic Legitimacy vs. Rule of Law: A Comparative Study of Oath-taking Controversies in Hong Kong and Taiwan

In 2016 some pro-independence advocates in Hong Kong attempted to enter into the Legislative Council to promote their causes. Their political endeavors were thwarted by the legal means sought by the authorities. Six members-elect of the LegCo were disqualified by the courts for invalidly taking the oath. Similar controversies also played out in Taiwan as early as 1984 when some Tangwai members neglected to take their oath. The oath-taking controversies in the two regions both revolve around the political legitimacy of the existing constitutional framework. This paper will compare the oath-taking disputes and different courts’ rulings regarding the disputes and attitudes of the relevant shareholders towards the controversial issue in the two regions. With a reference to the abstentionism tactic used by Sinn Fein members in the UK, it will highlight the uniqueness of the dilemma marked by the conflict between democratic legitimacy and the law in societies under authoritarianism.

The Rule of Law in China and its Problems

This paper begins with a description and an assessment of China’s 40 years’ construction of the rule-of-law. Section I discusses the conceptual framework I use to describe and evaluate China’s rule-of-law construction, and then offers a brief account of the past 40 years of China from the perspective of the rule of law. Despite the remarkable achievements that have been made towards the rule of law, China still faces many problems, especially as regards reining in arbitrary power. Four deep structural causes of law’s partial failure in China are then analysed, which include: “The habit of ruling by means of war-like and populist campaigns”; “The Party’s legal status and its efficacy”; “The conflict of officials’ recognitions”; “Toothless laws and the ascendancy of democracy”. Ultimately I conclude that democratic constitutional reforms and the rule of law construction are inseparable.

Challenges to the rule of law in a semi-authoritarian Hong Kong

Hong Kong has been recognized for its well established rule of law. After the Umbrella Movement in 2014, the Chinese Communist regime adjusted its strategy towards Hong Kong and closed the road to democracy. With the end of the era of semi-democracy, the governing system in Hong Kong is now going in an authoritarian direction. In this new era of semi-authoritarianism, Hong Kong’s rule of law faces the most serious challenges. The meaning of the rule of law is now being redefined by the Chinese Communist regime. Hong Kong is fighting a battle on the discourse of the rule of law. The legal culture of Hong Kong people may not be strong enough to withstand such an ideological encroachment. The legal professionals in Hong Kong play a critical role in defending Hong Kong’s rule of law. There are worries as well as hopes. One thing is sure, the battle will be long and tough.

Bringing the Sunflower Movement into Perspective: Building the Rule of Law on a Flawed Political Foundation

The Sunflower Movement will go down in Taiwan’s history as one of the most significant incidents in the 21st century, yet we are only beginning to understand its significance. I use Weingast’s theory of democratic consolidation to argue that the Cross-Strait Service Pact crossed the limit of the institutional capacity of TW’s constitutional design, exposing tension in TW’s identity politics. The Movement is the manifestation of the rationality of fear in response to the breaking point of tension. The breaking of TW’s constitutional structure has two deeper roots: 1) democratization in TW has not solved the national identity conflict; 2) a rising need to assert Taiwanese identity nurtures the conception of majoritarian democracy. The tricky thing about TW’s post-transition democratic politics is that political conflict must be managed under the rule of law, which lacks a solid political foundation in TW. Unlike in HK, TW’s rule of law lacks a source of legitimacy standing on its own.

Changing Ideas of Representation: Representative Democracy, and the Rule of Law in Singapore

This paper examines recent pronouncements, both in and outside of courts, concerning the nature of representative democracy and how it relates to the rule of law in Singapore. Given that conceptions of the rule of law are theorized to require the incorporation of democracy into the legal system, this article examines the implications of recent cases in Singapore for how representative democracy should be understood, and for the mutually supportive nature of democracy and the rule of law. In particular, it analyses the Court of Appeal’s opinion in the seminal case of Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 where the Court relied on the rule of law in holding that decisions of the Prime Minister on calling by-elections are judicially reviewable.