Constitutionality of Demand for Hong Kong Independence - A Comparative and Jurisprudential Study

Description

The constitutionality issue of demanding Hong Kong (HK) independence/self-determinationhas perplexed HK since the Hong Kong National Party was established inMarch 2016 advocating for HK independence and pledging to use whatever meansavailable to break HK away from Mainland China. Despite strong criticism from variousgovernmental organs in Mainland China, pro-establishment political parties andindividuals in HK, such demand for independence has gained more support. The resultsof 2016 Legislative Council (LegCo) election indicates that around 20% of the voters whovoted supported those candidates in favor of HK independence or self-determination.The newly elected pro-independence/self-determination LegCo members are determinedto bring the issue before the LegCo. The NPCSC’s interpretation of Article 104 of theBasic Law is unlikely to stop the issue of HK independence/self-determination frombeing debated in the LegCo.This research project will first address the constitutionality issue through comparativestudy. Since neither Chinese Constitution nor HK’s Basic Law contains a right to secede,the scope of comparative study will be limited to those countries whose constitutions aresilent on the right of secession. Cases decided in countries like the United States, Spain,Canada, and the United Kingdom will be carefully examined in order to answer thequestions of (i) whether at constitutional level HK can demand independence/self-determination,and (ii) how HK courts, and the NPCSC should deal with HKindependence/self-determination demand.This project will then address the jurisprudential issue of whether HK people shouldenjoy the right of secession from Mainland China. Political theorists have come up withmore than a dozen of different moral justifications to support a constitutional right tosecede. This project will analyze each of them to see they can provide moral support forHK independence/self-determination demand.Both issues will be examined against the background of “one country, two systems” andthe fact that China context may substantially influence answers to the two researchissues because HK’s liberal position towards fundamental rights is situated in theauthoritarian China context.In addition to contributing to academic discussion on the two research issues, theoutputs of this research project can provide guidance to not only HK courts, but also HKGovernment and Chinese Central Government on how the other jurisdictions with ruleof law tradition have dealt with independence requests. Further, this research shall alsoshed light on how independence demand in Tibet and Xinjiang Uyghur AutonomousRegions should be dealt with by Mainland Authorities.