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

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