Is It Constitutional to Demand Hong Kong Independence? A Comparative Study
(2019) 49(2) Hong Kong Law Journal 507-546.
Posted: 26 Nov 2019
Date Written: November 25, 2019
The constitutionality issue of demanding Hong Kong independence/self-determination has perplexed Hong Kong and China since the Hong Kong National Party was established in March 2016 advocating for independence and pledging to use whatever means available to break away from China. Despite strong criticism from various governmental organs in China, pro-establishment political parties and individuals in Hong Kong, such a demand has gained more support as revealed through the results of 2016 Legislative Council elections. This paper examines the constitutionality of demanding Hong Kong independence through a comparative study. Since neither the Chinese Constitution nor the Basic Law contains a right to secede, the experiences of those jurisdictions whose constitutions are silent on the right of secession are of referential value. This paper argues that the judiciary can learn from their experiences in dealing with secession requests. Since Hong Kong's constitutional status under the principle of "One Country, Two Systems" is different from those jurisdicitons within the sovereign countries discussed, the paper further analyses how the China context might affect the judiciary's approach towards secession requests. The paper concludes by arguing that the practices and case law in the jurisdictions examined are consistent and support the argument that only with the consent of the sovereign country or all the people therein will a unit be possible to secede. The paper submits, however, that it is important to remove the root cause of the independence demand and that the sooner universal suffrage is realised in Hong Kong, the weaker the demand for independence will be.
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