The romantic constitution of Hong Kong : how do people idealise the constitutional order and address other constitutional narratives?

Abstract

Hong Kong has been in the spotlight in the global arena following the protests in 2019, and it has gained even more attention after the passage of the National Security Law in 2020 and the electoral reform in 2021. At this critical juncture, numerous academic works relating to the constitutional order of Hong Kong appear. There are different narratives regarding the constitution of Hong Kong. Interesting patterns may have emerged from the writings by scholars who do not adopt exactly the governmental or semi-official positions as to the constitution. A common theme of this kind of constitutional narration is that the Hong Kong constitutional order is liberal. The depiction of a liberal Hong Kong merits our critical reflection. It is argued that the liberal constitution portrayed is a romantic constitution: there are illiberal aspects in the Hong Kong constitution.

The liberal view on the constitutional order of Hong Kong is analysed. The approach to them is contextual and sociological. It resembles the postmodernist thinking, but chiefly the target statements regarding the liberal constitution of Hong Kong are studied but not condemned. The difference from traditional legal discourse is that the meticulousness and rigour of legal analysis are applied not to the law directly but to the characterisation and critique of the law.

It is discovered that under the liberal view, the romantic liberal constitution of Hong Kong has been constructed based on the common law tradition, the colonial experience and “One Country, Two Systems.” These three elements of the constitutional order and hence the entire constitution of Hong Kong have been idealised. Non-liberal realities or the narratives of them have usually been marginalised in the construction of the Hong Kong constitution as a liberal one.

The common law tradition, the colonial governance and the arrangement of “One Country, Two Systems” are often considered liberal. Non-liberal institutions and practices, however, exist in each of the three pillars that constitute the liberal constitution of Hong Kong. Because of the discrepancies between the description of a liberal Hong Kong and the non-liberal realities, the description becomes a kind of idealisation of the constitution. The liberal view on the constitutional order of Hong Kong is not sufficiently substantiated. The Hong Kong constitution is non-liberal, and this has not been fully acknowledged in the liberal view.

It is important to detect the idealisation of the constitution and clarify the status of it since effective advocacy of future developments of constitutional law and politics in Hong Kong requires proper understanding of the current situation. The phenomenon of constitutional idealisation reminds us of the limits of constitutional scholarship, the study of which contributes to the description and/or theorisation of constitutions. As the exploration of the romantic constitution of Hong Kong turns on the issue of liberty or liberalness, it serves also as a first step to sharpen the arguments surrounding liberalism.