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

Democracy and Rule of Law in China's Shadow(Hart, 2021)

18 Pages Posted: 30 Dec 2020 Last revised: 18 Mar 2022

See all articles by Han Zhu

Han Zhu

The University of Hong Kong Faculty of Law

Date Written: October 29, 2020

Abstract

The oath-taking controversies touch on the issue concerning the political legitimacy of an existing constitutional system, as they present tensions between the popular will (as represented by democratically elected lawmakers) and the law (as represented by legal norms and judicial decisions). Underlying the controversies is the question, closely related to the right to self- determination/secession, of whether and how a constitutional and legal system can accommodate activities and claims opposing the very foundation upon which the existing constitutional framework operates. Responses from the authorities aimed at tackling the issue may range from political negotiation to forceful suppression, which largely reveals the degree of authoritarian or democratic inclinations that characterise a regime.

This chapter traces the series of events surrounding oath-taking disputes in Hong Kong and Taiwan. It considers the differences in relevant laws and judicial decisions, and analyses the factors contributing to the contrast. It aims to demonstrate that the way in which the oath-taking disputes have been handled in Hong Kong has exacerbated the inherent tension between democratic legitimacy and legality in this city under the shadow of authoritarianism. This chapter also refers to the abstentionism tactic used by Sinn Fein representatives in the United Kingdom, aiming to highlight the uniqueness of the conflict between democratic legitimacy and the law in a semi-democratic context such as Hong Kong’s.

Keywords: oath-taking; Hong Kong; Taiwan; Basic Law; China

Suggested Citation

Zhu, Han, Democratic Legitimacy vs. Rule of Law: A Comparative Study of Oath-Taking Controversies in Hong Kong and Taiwan (October 29, 2020). Democracy and Rule of Law in China's Shadow(Hart, 2021), Available at SSRN: https://ssrn.com/abstract=3721039

Han Zhu (Contact Author)

The University of Hong Kong Faculty of Law ( email )

Pokfulam Road
Hong Kong, Pokfulam HK
China

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
56
Abstract Views
215
rank
498,437
PlumX Metrics