On Benny Tai's Constitutional Positioning
The Importance of an Independent Judiciary to a Liberal Democracy, Part one
There are three things to know about Hong Kong pro-democracy lawyer Benny Tai. First, Benny Tai is a fierce and articulate supporter of democracy through his academic law writing. Second, in the, unfortunately rather hard to watch documentary《時代革命》or Revolution of Our Times, which means this is not a word for word quote, he said, ‘Those [frontline protestors] love Hong Kong more than we do. They are willing to sacrifice everything. I feel ashamed.’ Third, Benny Tai is current sitting in a Hong Kong prison on political charges.
Benny Tai’s rise to prominence in the international law community started in the 1990s, and more so around 1997 as he began to write in international journals concerning Hong Kong’s Basic Law, the city’s ‘Constitution’. He, however, has had a longer streak of activism in Hong Kong, being one of many voices who pushed yearly 1 July protests and fought back against the first attempt to pass a National Security Law in 2003.
In 2014, he rose to wider international cultural recognition, being one of the minds behind the Occupy Central with Love and Peace Campaign. Alongside Reverend Chu Yiu-Ming and Chan Kin-man, Tai theorised the most effective and legal direction to push for universal suffrage in Hong Kong would be a peaceful sit-in.
If there is one critique of Tai, it would be he is too peaceful. He himself readily admits this, hence the quote from Revolution of Our Times in the first paragraph. Tai is a vocal Christian and thus also largely inspired by Martin Luther King Jr. Whether he underestimated the government’s willingness to use violence, or wanted to win the moral optics of peacefully standing against a violent government response, or simply had too much faith in the government’s good will in 2014 is a matter of debate. The Occupy movement evolved into what is known to posterity as the Umbrella Revolution.
There was a split amongst the pro-democracy camps on the needed response from protestors when the police did respond violently. The movement was not peaceful as Tai desired. The movement, however, was still epitomised by both peace and love for one another as the sit-in grew to sit-ins, plural.
Five years later in 2019 Tai once again watched the widespread anti-extradition bill, which evolved once again into a larger pro-democracy movement. However, he spent most of the protests from a jail cell. Yet, symbolically in a move Tai would have been proud of, lawyers dressed in black marched on Hong Kong’s Court of Final Appeals. Six days later on 12 June 2019, a mass protest met with a brutal police response turned into the pro-democracy movement 《光復香港,時代革命》which ‘culminated’1 with the July 2020 implementation of the Hong Kong National Security law by the People’s Republic of China’s National People’s Congress.
I will break with the narrative here. I wanted to provide a very brief perspective on who Benny Tai is, and his context within Hong Kong’s pro-democracy movement. I knew of Benny Tai when covering the 2019 Hong Kong protests. The summer after when writing my master’s thesis, I began to read his legal writings. His writings are engrossing and contain important legal concepts for a liberal democracy; yet, they are often overlooked. This is only the first part to a series of articles with an undefined number. The goal is to introduce Benny Tai’s legal writings to a larger audience, as he builds concepts important not only to Hong Kong, but to democracies at large.
Today I will introduce the general concept of Constitutional Positioning2, which Tai wrote in a Hong Kong context. The second aim is to show that, as Tai hints at in later writings, Constitutional Positioning is applicable to all democracies as at the core the concept centres on: (1) an independent judiciary and (2) checks and balances.
In 1997 when Hong Kong returned to the People’s Republic of China, it was given Special Administrative Region status (hence, HKSAR). The HKSAR comprises of the Executive Branch (the Chief Executive as the leader, whom assumed powers of Hong Kong’s governor under British authority), the Legislative Council (LegCo; unicameral; which existed under different electoral systems across the history of British authority), and the Court of Final Appeals (the judicial system, which adopts some standard operating procedures from British Law). The Basic Law adopted several British Colonial practices, as convenient. However, it was regressive on democracy and did not provide for universal suffrage in Chief Executive or LegCo elections.
Benny Tai theorised that without universal suffrage, then it was the Court of Final Appeals3 which served enacted Constitutional Positioning. In essence, the courts became the bastion of democracy to check the power behind an, for all effective purposes, appointed Chief Executive and partially popular elected LegCo. The Court of Final Appeals served to position the power between the Chief Executive and LegCo, thereby theoretically, shifting constitutional interpretation towards full liberal democratic norms over time. In Hong Kong’s context, this also meant ensuring the HKSAR interpreted autonomy from the PRC National People’s Congress with the full definitions of autonomous.
The Court of Final Appeals served gave lawyers a strong sense of activism in efforts to push towards democracy. If they could argue interpretations of the Basic Law that were more liberal, the norms over time would allow for democratic provisions. This is why so many lawyers recognised the battle for democracy would be a long one. The chief problem, however, is that judges are appointed by the Chief Executive and the National Security Law runs on a different docket. The NSL court is an ad hoc system recognised by the NSL as stronger than the Court of Final Appeals.
The concept of the courts as a Constitutional Positioner has merit in other democracies. Put simply, courts have the power to interpret between liberalism and illiberalism. Courts, and the appeal courts which serve to check lower courts, are the core of the check and balance systems. This is often missed in democracy which, rightfully, puts emphasis on the elected officials. Lawyers have an important role in arguing for liberal-democratic interpretations of a constitution. They become the cornerstone of ensuring overreach on voting rights are checked and laws protect human rights.
In another paper from 2020, Tai comments that legal professionals assist in defining the Rule of Law in their jurisdictions. That is, who defines the Rules of Law as what under which ideology? This is a critical concept to liberal democracies, as the Rule of Law defines the extent to which there is power to enact current laws and create new laws. Moreover, it also matters the ideology dominating the legal theory. This has nothing to do with whether a judge is leftist or rightist, but the judge’s definition of Rule of Law under the Executive and Legislative Branches.
Democratic activists in both liberal democratic countries and illiberal or authoritarian countries should learn from these concepts and invest time and education into becoming active lawyers and judges. There is immense power the court can wield, and a rise in illiberalism often arises from courts not interpreting more power for the government, but more power towards a specific ideology within the government. A rise to illiberalism also does not occur overnight; a bad ruling can be reversed and the high courts can overrule themselves. However, a pattern of illiberalism can slowly tick away at institutions, creating the conditions in which a tidal wave can erase democratic efforts nearly overnight.
Thanks for sticking around to the end. I truly appreciate it. I know that was a lot of legal jargon, history, and abstract theory. I will continue to write on Tai’s theories and works, including a review of a 1997 Loyola Marymount Speech in which former Hong Kong judge Benjamin Liu argues the Basic Law’s position as not a protector of liberalism, but of Chinese interests under 1 Country 2 Systems. This includes foreshadowing towards legal theory the PRC hoped to apply to Taiwan under 1C2S.
In the meantime, however, I will take a break from the legal jargon and ponder something else.
I would argue the pro-democracy has yet to culminate, and is an extension of many other anti-colonial protests. But that is my optimism. Subscribe if you want to see an article in the future on the idea of Hong Kong as a perpetual colony. I wrote a thesis on it! Timothy McLaughlin of The Atlantic has also written on it.
Benny Y.T. Tai, "Chapter 1 of Hong Kong's New Constitution," in Crisis and Transformation in China's Hong Kong, ed. Ming K. Chan, Alvin Y. So, and Lynn T. White (London: Taylor & Francis, 2002).
This is the symbolic reason the lawyers marched on the Court of Final Appeals; to appeal them to uphold the Basic Law.