Theoretical foundation of Educational Administration …wktsang/mcls6202/handout/2014-L9-10... · Web view“The core of the existing principle is, I suggest, that all persons and

MCLS6202Enquiry and Issues in Society and Culture

Lecture 9-10Rule of Law and Socio-Political Participation:

Enquiry into Issues of Hong Kong Today

A. Understanding the Issue1. The Theme: “Historical and current development of politics and society in Hong

Kong; the relationship between the Central Authorities and the Hong Kong Special Administrative Region (HKSAR); the importance of the Constitution of the People’s Republic of China and the Basic Law of the HKSAR of the People’s Republic of China to Hong Kong residents; the sources of law in the HKSAR; the governance of the HKSAR; the functions of the government of the HKSAR and its relationship with Hong Kong residents; the identities, rights and duties of Hong Kong residents; the participation in social and political affairs of Hong Kong residents, etc.”

2. Questions for enquiry: How do Hong Kong residents participate in political and social affairs and come to grips with rights and responsibilities with respect to the rule of law?a. What factors determine the level and form of socio-political participation by

Hong Kong residents? What is the significance of their participation? Why do they have different demands? What is the impact of their demands?

b. In what ways does the rule of law protect rights and promote the observance of responsibilities among Hong Kong residents?

c. How does the government respond to the demands of different social groups? What is the impact of the responses on the governance of Hong Kong, the safeguarding of the rule of law and the promotion of socio-political participation among Hong Kong residents? Why?

3. Related values and attitudes: Respect for the rule of law; participation; human rights and responsibilities; democracy; justice.

B. Understanding the Connection between Rule of Law and Socio-political participation of Citizenshipa. Rule of law as an institutional structure between the ruler and the ruled

i. Who is the ruler? In modern society, the rule is presumed to be the sovereign state

ii. Who is the ruled? In modern society, the ruled is presumed to be the citizens or legal residents within the state border.

b. Rule of law as an institutional principle between the ruler and the ruledi. Law as rules constraining and to be complied by the ruled, i.e. citizens?ii. Law as rules constraining and to be complied by the ruler, i.e. the state?iii. Law as rules constraining both the ruler and the ruled?

c. Rule of law as institutional design of the Enlightenment i. Rule of law as institutional design of state in constraining its subjects

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Tsang & MakInquiry & Issues in Society & Culture

ii. Rule of law as institutional design of citizens in constraining the arbitrary rules of the state

iii. Rule of law as institutional design of citizens constraining their fellow citizens reciprocally

C. Conceptual Controversies invoked from the Recent Political Turbulences in HKSAR1. Controversies between the concepts of rule of law and civil disobedience

a. Rule of law guarantees civil disobedience.b. Rule of law prohibits civil disobedience.c. Civil disobedience violates the rule of law.d. Civil disobedience exemplifies the rule of law.

2. Controversies between the concepts of rule of law and patriotisma. The principle of the rule of law trumps patriotism.b. Patriotism trumps the principle of the rule of law.

3. Controversies between the concepts of civil disobedience and patriotisma. Patriots should not stage civil disobedience.b. To stage civil disobedience is not only the right of the patriots but is also their

obligations.

(I)The Concept of the Rule of Law

A. Rule of Law: Concept Learning in Historical Institutionalist Approach1. Concepts are ideational devices humans to induce their experiences.

a. Concepts in natural sciences: They are induced from human experiences and experimental results of the natural world, which are regular and universal in nature. As a result, the definitional attributes of these concepts will be more definite, comprehensive and universal across time and space.

b. Concepts in social and human sciences: They are induced from human experiences and practices of the social world, which are institutionalized by human aggregates in various physical, socio-cultural, econ-political contexts. As a result, the definitional attributes of the social-scientific concepts are less definite and may vary across time and space. The regularities of these social institutions and the definitude of the concepts induced from them are transformational in accordance with human actions.

2. The nature of social-science concepts are by definition historically institutionalized ideational devices, which differ from concepts of nature science in numbers of significant waysa. The contents and definitions of social-science concepts are less definitive and

cannot universally applied across different human societies and cultures.b. The contents and definitions of the social-science concepts derived within a

specific society may also change significantly and substantively across time.c. Finally, as social world are not naturally given but will evolve in accordance

with to human agents’ intentions and efforts, social-science concepts are inevitably less static in their contents and definition.

3. The concept of the rule of law bears exactly all these features. And therefore it has to be approach from the historical institutionalist perspective. Hence, the concept

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of the rule of law will be expounded in the following ways.a. The historical development of the ideas, principles and practices of the rule of

law as a social institution.b. The perspectives of the institution of the rule of law derived from different

sociopolitical contextsc. The evolution of the ideas, principles and practices of the rule-of-law institution

in response to the changes in political participations of citizensd. The case of the practices of the rule-of-law institution in the HKSAR context

B. Understanding the Citizenship Participation in the Context of the Rule of Law: In Historical Institutionalist Perspective1. The point of embarkation of the rule-of-law movement

a. Efforts of the royals/barons to constrain the totalitarian and arbitrary rules of the monarch in the Middle-Age Europe: One of most significant instances is the signature of the Magna Carta. In 1215 King John was forced to accept the document of concession by his rebellious barons in protecting their interests “from onerous exaction by the King to finance his losing war effort in France.” (Tamanaha, 2004; P. 25) However, Brian Tamanaha underlines that “the significance of the document was relative minor” in the history of the development of the rule of law. (ibid)

b. Revolutionary movements to constrain or/and overthrow the authoritarian rules of monarchy and colonialism:i. The “Glorious Revolution” in 1688: It has been interpreted as the landmark

of constitutional change in England, the result of which had constituted the Parliamentary Supremacy over the monarchy in the long run.

ii. The American Revolution in 1775-1783: Upon the signature of the Declaration of Independence by the representatives of the 13 colonies, the government of the United States of America was constituted and gained independence from the colonial rule of the British Empire.

iii. French revolution in 1789: On the 14th of July 1789 a group of Parisians invaded the Bastille, which triggered the French Revolution and finally overthrew the absolute monarchy of the King Louis XVI.

These movements signified and formally institutionalized the idea that the sovereignty of the state resides on the ruled (i.e. citizens) and not the ruler.

2. The civil-right movement in the 18th centurya. Another results of the above revolutions is the declaration and institution of the

bill of rights in all three respective countriesi. The Bill of Rights 1689: The document originally entitled An Act Declaring

the Rights and Liberties of the Subject and the Settling the Succession of the Crown, was passed by the Parliament of England on 16 December 1689. The Bill consisted of 9 articles. They laid out certain basic rights for all Englishmen. They included freedom from taxation by royal, freedom from peace-time standing army, freedom of speech in Parliament, freedom from cruel and unusual punishments and excessive bail, freedom from fines and forfeitures without trial, etc.

ii. The Declaration of the Rights of Man and of the Citizen: The document was originally adopted on 26 August 1789 by the National Constituent Assembly during the French Revolution. Among the articles they included, for

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examples, “Men are born and remain free and equal in rights”; “Liberty consists in the freedom to do everything which injures no one else”; “No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law”; “The free communication of ideas and opinions is one of the most precious of the rights of man”; “Property being an inviolable and sacred right, on one can be deprived of it, unless demanded by public necessity…”; etc.

iii. The Bill of Rights is the collective name for the first ten amendments of the US Constitution. It was passed as joint resolution of Congress on the 25th September 1789, only two years after the signature of the US Constitution in Sept. 1789. The first ten amendments basically specified the rights of the US citizens, which are immune from the rule of both the federal and state governments. They include freedom of speech, of the press, of assembly and to petition; right to bear arm; immunity from quartering of soldiers; immunity from unreasonable searches and seizures; rights to a fair trial; immunity from excessive bail, fines, and cruel punishment; rights not enumerated in the Constitution are retained by the people.

b. The significance of the bills of rights: The passage and constitution of these articles have been interpreted as the initiations of the writings of the liberal philosophers of the 17th century, most notably John Locke’s Two Treatises of the Government. As a result, they have laid two of the foundations of the institution of the rule of lawi. One is the inalienable rights of citizens, which Isaiah Berlin termed the

“negative liberty” (Berlin, 1969) and T.H. Marshall called “civil citizenship.” (Marshall, 1973). They constituted the private sphere of individual citizens which are “free from” the intervention of the state. They basically cover the natural rights which John Locke specified, namely Life, Liberty and Property.

ii. The second is the submission of the state rules to the regulation of law, which has generally called the “rule by law”. It implies one of the basic principles of the doctrine of rule of law, namely “no person or institution is above the law” (Pollard et al., 2007, P. 47) including statespersons or publically elected officials.

Taken together, they have constituted a civil relationship between modern state and its citizens. They have carved out a sphere within which individual citizens are immune from the rule of the state and on the other hand imposed restraints on the power mechanism of the modern state.

3. The political-right movement to democratic rule in the 19th centuriesa. From negative to positive liberty and from passive to active citizenship: Apart

from securing the passive citizenship and negative liberty from the totality rules of the state, the constitutional movement in the 18th century had also initiated the movement of gaining political right to elect officials in various branches of the government, i.e. those in legislature, executive, and judiciary through democratic election. However, most of these elections in the 18th-century Europe and the US were confined to electorate, who are male, estate owners and white. The systems of universal franchise in political election across gender, race and social class were not fully institutionalized in Europe and the US until the early 20th century. For example, Black suffrage was

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written into the US Constitution via the Amendment 15 in 1870, while women’s suffrage was institutionalized by the Amendment 20 in 1920.

b. The institution of separation of power: Within the institution of a democratic state there are general two dimensions of separation of power, namely the horizontal and vertical dimensions. For instance, in the document of the US, there are stipulations of the separate institution of the legislature, executive and judiciary (in Article 1 to 3), and those of the relation between the federal and state governments (in Article 4). However, the actual practices of check and balance of these institutions have to be played out or tried out the two millenniums of the US-Constitution history.

4. The universalization of the declaration of human rights in the second half of the 20th century: a. In 1948 the newly formed United Nation in response to the catastrophic assault

on humanities during the WWII, drafted and adopted the Universal Declaration of Human Rights (UDHR). The UDHR consists of 30 articles, which underline the natural rights of all human beings and also stipulate the civil, political, social and economic aspects of human rights.

b. In 1966, the UDHR was specified into two detailed covenants, namely International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) . The two covenants have subsequently signed and/or ratified by most of the members of the United Nations. As a result, the two Covenants have taken on the force of international law.

c. The PRC has signed and ratified the ICESCR but has signed and not ratified the ICCPR.

d. The Basic Law of HKSAR stipulates in Chapter III, Article 39 that both ICCPR and ICESCR “as applied to Hong Kong shall remain in force and shall be implemented through the law of the HKSAR.”

5. The social-right movement and the crash between property and social rights: The second half of the 20th century also witnessed the proliferation of social rights in most of the developed countries around the world. a. State interventions in the form of public policies and more specifically social

policies were welcome by electorate under the public sentiment of welfare state. These state interventions manifested in various forms of public education, public housing, public health and medical services, public assistance, unemployment assistance, social securities, ...

b. These state-intervention initiatives have triggered heated dispute in public arenas in both intra- and inter-national contexts. One of the most prominent opponent camps to welfare-state interventions is of course the economic liberals. Their basic argument against welfare-state interventions is that they deprive individual citizens’ right to choose and trespass their property right. As a result, they will not only encourage free-lunch mentalities among citizens, but also suffocate initiations and spawn mediocracy.

c. Another camp of opponent to welfare-state interventions is from the liberal democrats, who argue that welfare-state politics will grow into a form of politics of seduction. Voters is democratic elections are perverted into rent seekers, free-riders, or even “a bunch of desires”. The assumption of rational, reasonable and empowered citizens or “a bunch of potentials” in M.B.

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Macpherson conception has practically evaporated in post-WWII liberal democracy of welfare state.

d. The neo-liberals’ strike back: i. The setbacks of the welfare-state politics surfaced themselves in various

forms in the final decades of the 20th century. They manifest in phenomena such as fiscal crises confronting most of the liberal-democratic states, hyper-inflations running wild in most of the capitalistic economies, disorganization and ungovernability of the welfare state.

ii. Neo-liberal governments in advanced capitalist countries came to power through democratic elections in the final decade of the 20th century, most notably Margaret Archer’s Conservative government in the UK and Ronal Regan’s Republican government in the US.

iii. As a result, public policies in these countries took on the orientations, such as “roll back the state”, de-regulation, privatization, decentralization, etc.

iv. The neo-liberal assaults have further accelerated by the technological changes in information technology and the political changes in the socialist bloc. Taken together, they have transformed the industrial-capitalist world system into a informational-global capitalism.

v. Taken together, these social changes at the threshold of the new millennium have brought significant checks if not halts to the drives of social-right movements in the public-policy discourse in both the intra- and inter-national political contexts.

C. The Theoretical Perspectives in the Doctrine of the Rule of Law1. Tom Bingham’s conception of The Rule of Law (2011)

a. Professor A.V. Dicey’s classical conception of the three meanings of the rule of law: i. “We mean, in the first meaning, that no man is punishable or can lawfully

be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before ordinary court of the land.” (Dicey, 1885; quoted in Bingham, 2011, P. 3)

ii. “We mean in the second place, when we speak of ‘the rule of law’ as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” (Dicey, 1885; quoted in Bingham, 2011, P. 4)

iii. “We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to person liberty, or the right of public meeting) are with us the result of jurisdiction decisions determining the rights of private persons in particular cases brought before the courts.” (Dicey, 1885; quoted in Bingham, 2011, P. 3)

However, Bingham underlines that Dicey’s three meanings of the rule of law should not be taken as definitive definition of the term but could only serve as principles or point of reference for the judges to apply to their rulings. Hence, Bingham further indicates that it is the common belief in the British legal system that it is better to “leave it the judges to rule on what the term means if

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and when the question arises for decision. In this way a definition could be forged not in the abstract but with reference to particular cases and it would be possible for the concept to evolve over time in response to new views and situations.” (Bingham, 2011, P. 7-8)

b. Tom Bingham’s conception of the rule of law: Though Bingham warns that it is impossible to lay down a comprehensive and definitive definition of the term ― “the rule of law” that could universally applied without exception and qualification, nevertheless Bingham suggests that “the task of devising at least a partial definition cannot be avoided indefinitely. So I think we must take the plunge.” Accordingly, Bingham puts forth the following.“The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of law publicly made, taking effect (generally) in the future and publicly administered in the court.” (Bingham, 2011, P. 8)

c. As Bingham underlined that “this principle, so states, was not comprehensive and not universally applied,” nevertheless Bingham render himself to help us “to explore the ingredients of the rule of law a little more thoroughly.” As a result, he has advanced eights more principles in the subsequent chapters of his book. They arei. “The law must be accessible and so far as possible intelligible, clear, clear

and predictable.” (Bingham, 2011, P. 37, see also Chapter 3)ii. “Questions of legal right and liability should ordinarily be resolved by

application of the law and not the exercise of discretion.” (Bingham, 2011, P. 48, see also Chapter 4)

iii. “The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. (Bingham, 2011, P. 55, see also Chapter 5)

iv. “Ministers and public officers at all levels must exercise the power conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.” (Bingham, 2011, P. 60, see also Chapter 6)

v. “The law must afford adequate protection of fundamental human rights.” (Bingham, 2011, P. 66, see also Chapter 7)

vi. “Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.” (Bingham, 2011, P. 85, see also Chapter 8)

vii. “Adjudicative procedures provided by the state should be fair.” (Bingham, 2011, P. 90, see also Chapter 9)

viii. “The rule of law requires compliance by the state with its obligations in international law as un nation law.” (Bingham, 2011, P. 110, see also Chapter 10)

2. Brain Tamanaha's (2004) 6-altervative conceptual framework of the Rule of Law:a. Formal version of the rule of law:

“Formal conceptions of the rule of law address the manner in which the law was promulgated (was it by properly authorized person …); the clarity of ensuring norm (was it sufficiently clear to guide an individual’s conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of enacted norm (was it prospective…. Formal conceptions of the rule of law do

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not however seek to pass judgment upon the actual content of the law itself. They are not concerned with whether the law was in that sense a good law or a bad law.” (Craig, 1997; quoted in Tamanaha, 2004, P. 91-92) This version of the rule of law may be classified in term of “thickness” intoi. Rule by law: “The thinnest formal version of the rule of law is the notion that

law is means by which the state conducts its affairs. …One extreme version holds that all utterances of the sovereign, because they are utterance of the sovereign, are law.” In this sense the conception of “the rule of law seems to amount to an empty tautology, not a political ideal. Every modern state has the rule of law in this narrow sense.” (Tamanaha, 2004, P. 92)

ii. Formal legality: Joseph Raz underlines that “the law must be capable of guiding the behavior of its subjects.” Therefore, it must content some instrumental ingredients, such as “prospective, general, clear, public, and relatively stable.” (Raz, 1979; Quoted in Tamanaha, 2002, P. 93)

iii. Democracy plus legality: - “The third and last formal version of the rule of law adds democracy to

formal legality. Like formal legality, democracy is substantively empty in that it says nothing about what the content of law made of. It is a decision procedure that specified how to determine the context of law.” (Tamanaha, 2004, P. 99)

- The legitimacy of this version of the rule of law may be justified that “modern legal order can draw its legitimacy only from the idea of self-determination: citizens should always be able to understandthemselvesalso as authors of the law to which they are subject as addressees.” (Habermas, 1996, Quoted in Tamanaha, 2004, P. 99) “Under this reasoning, formal legality…takes its authority from and serves democracy. Without formal legality democracy can be circumvented (because government officials can undercut the law); without democracy formal legality loses its legitimacy (because the content of the law has not been determined by legitimate means).” (Tamanaha, 2004, P. 99)

Alternative rule of Law Formulations

Thinner--------------------------To-------------------------------Thicker

Formal version

1. Rule-by-Law

- law as instrument of government

2. Formal Legality

- general, perspective, clear, certain

3. Democracy+Legality

- consent determines content of law by citizens

Substantive version

4. Individual Rights

- property, contract, privacy, autonomy

5. Right of Dignity &/or Justice

6. Social Welfare

- substantive equality, welfare, preservation of community

b. Substantive version of the rule of law

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In contrast to the formal conception of the rule of law (which Ronald Dworkin called the rule book conception), the substantive conception of the rule of law conceives the aims of constituting the rule of law is not simply to fulfill the formal imperatives of legality and democratic rule, but to realize the substantive “good” and “right” for the ruled, i.e. citizens in democratic society. Dworkin specifies the conception of substantive conception of the rule of law (which he called the rights conception) as follows“I shall call the second conception of the rule of law the ‘rights’ conception. It is in several ways more ambitious than the rule book conception. It assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familiar type, as far as this is predictable. The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish as the rule book conception does, between the rule of law and substantive justice; on the contrary it requires as a part of the ideal of law, that the rules in the rule book capture and enforce moral rights.” (Dworkin, 1985; P. 11-12) This version of the rule of law always has been besieged by controversies over substantive moral issues. Accordingly, this conception of the rule of law may generally be categorized in terms of the fundamental moral right that an institution of the rule of law has been adhered to.

c. Liberal version of rule of law: i. One of the fundamental values which modern institutions of the rule of law

strive to achieve is to protect individual’s natural rights and liberties from arbitrary rule. (Tamanaha, 2004) With reference to the doctrine of liberalism, this version of substantive rule of law advocates that the primary objective of the institution of the rule of law is to protect, maintain or even maximize individuals’ natural rights, namely, life, liberty and property (John Locke, quoted in Tamanaha, 2004, p. 32). Accordingly, this version the rule of law is to constitute a field in which we are allowed in “pursuing our own good in our own way, so long as we do not attempt to deprive other of theirs, or impede their efforts to obtain it.” (John Stuart Mill, quoted in Tamanaha, 2004, P. 32)

ii. However, the liberal version of the rule of law has been construed by some liberals as in direct contradiction with democratic rule of law. It is because to some liberals, democracy as majority rule may encroach upon individual rights, especial property rights of the rich. They assume that “the majority poor would of course pass law taking from the rich minority their wealth until wealth was equally distributed.” (Maitland, 2000; in Tamanaha, 2004, P. 104) As a result, disputes between liberals and democrats on controversial issues such as tyranny of the majority and democratic rule or on the rights of the objectionable minority and the common will of the democratic majority have been one of the intrinsic features in the institution of liberal democracy in modern societies.

iii. The conception of “liberal democracy”, as a result, may takes on two contradictory meanings.

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- “Liberal democracy is taken to mean, as it still very generally is, the democracy of a capitalist market society. ….Accordingly, ‘liberal’ can mean freedom of the stronger to do down the weaker by following market rules.” (Macpherson, 1977, P. 1)

- “Liberal democracy is taken to mean, as John Stuart Mill and the ethical liberal-democrats who follow him in the late nineteenth and twentieth centuries took it to mean, a society to ensure that all its members are equally free to realize their capacities. …(Accordingly) ‘liberal’ can mean equal effective freedom of all to use and develop their capacities.” (ibid)“The difficulty is that liberal democracy is that during most of its life so far (a life which, I shall argue, began only about a hundred and fifty years ago even as a concept, and later as an institution) has strived to combine the two meanings. …The two ideas of liberal democracy have since then been held together uneasily, each with its up and down.” (Macpherson, 1977, P. 1-2)

iv. In order to protect individuals’ civil rights and liberties from the arbitrary rule of the state, the liberal-democratic state are commonly constituted in the form of separation of power. The state power is commonly divided into legislature, executive and judiciary. Furthermore, these three arms of state power are usually kept in a check and balance relationship. As a result, it is much harder for the state power under liberal democracy to form a totality of arbitrary ruling over its citizens.

d. The rule of law for social justice: i. According to the Declaration of Rights of Man and Citizen originated from

the French Revolution, “men are born and remain free and equal in rights.” Hence, institution of the rule of law is not only working for individual freedom and liberty, but also for equal entitlement and equal protection of all citizens or even for all human kind.

ii. Assuming that all citizens of modern state are of equal entitlement, one of the fundamental values demands of the institution of the rule of law is therefore to provide all citizens with “equal treatments” in disregard of their gender, ethnicity or any socio-economic attributes. One of the historical documentation of this version of the rule of law is the Section 1 of the Amendment 14 of the U.S. Constitution in 1868: “All person born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United State and the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

iii. Hence, social movements invoked in the 1960s and 70s in the forms of minority-right movement and feminist movement can be construed as the drive in extending the substantive conception of the rule of law to another level, namely the first principle of John Rawls theory of justice.“First Principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with similar system of liberty for all.” (Rawls, 1971, P.302)

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e. The rule of law for social welfare: i. “The thickest versions of the rule of law …added a further qualitative

dimension that might be roughly categorized under the label “social welfare rights”. (Tamanaha, 2004, P.112) One of the lucid expressions of this conception can be found on an document entitled The Rule of Law in A Free Society: A Report of the International Congress of Jurists. (1959)The concept of the rule of law “does indeed safeguard and advance the civil and political rights of the individual in a free society; but it is also concerned with the establishment by the state of social, economic, educational and cultural conditions under which man’s legitimate aspirations and dignity may be realized. Freedom expression is meaningless to an illiterate; the right to vote may be perverted into an instrument of tyranny exercised by demagogues over an unenlightened electorate; freedom from government interference must not spell freedom to starve for the poor and destitute.” (Quoted in Tamanaha, 2004, Pp. 112-113)

ii. The rule of law for the “least advantages”: One of extreme conception of the rule of law for social welfare is to strive for preferential and positive-discriminatory for the least advantaged social groupings in a given society. John Rawls characterizes such ruling as the Second Principle of A Theory of Justice:“Second Principle: Social and economic inequalities are to be arranged so that they are bothi. to the greatest benefits of the least advantaged, …and ii. attached to offices and positions open to all under conditions of fair

equality of opportunities.” (Rawls, 1971, p. 302)3. Benny Tai’s (戴耀廷, 2010) four-stage development of the institution of rule of law

a. 有法可依：可以依據的法律，需要先符合以下的指標i. 一般性 generality：「適用於所有人而不是個別人。」(P. 88)ii. 公開性 publicly promulgatediii. 穩定性 stabilityiv. 確定性 certaintyv. 可行性 feasibilityvi. 平等性 equityvii. 與社會一般價值的相符性 normative congruencyvii. Prospective rather than retrospective

b. 有法必依：這階段的法治「針對的對象主要是公民，強調公民必須守法。」(P.89) c. 以法限權：這階段的法治所針對的對象是當權者及統治者。

i. 憲法限權ii. 行政限權iii. 司法限權iv. 政治限權v. 社會限權：

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d. 以法達義：這階段的法治已把法治浬念從工具性提升到實質性，即透過法治以達致更高的社會意義及價值，例如公義：i. 程序公義ii. 公民權公義iii. 社會公義iv. 商議性公義

D. Theories of Socio-political Participation of Citizens1. Reinhard Bendix’s conception of citizenship: Bendix characterizes the concept of

citizenship as the followings: a. Citizenship is defined as the individualistic and plebiscitarian membership

before the sovereign and nation-wide public authority (Bendix, 1964)b. Development of citizenship : “the codification of the rights and duties of all

adults who are classified as citizens”. (Bendix, 1964, p.90)2. T. H. Marshall’s conception of the development of citizenship

a. Definition of citizenship: “Citizenship is a status bestowed on those who are full members of a community. All those possess the status are equal with respect to the rights and duties with which the status is endowed. (Marshall, 1992/1949, P.18)

b. Marshall’s three-stage model of development of citizenship: i. “I propose to divide citizenship into three parts. But the analysis is, in this

case, dictated by history even more clearly than by logic. I shall call these three parts, or elements, civil, political and social.(1) The civil elementis composed of the rights necessary for individual

freedom-liberty of the position, freedom of speech, thought and faith, the right to own property and to conclude valid contract, and the right to justice. The last is of a different order from the other, because it is the right to defend and assert all one’s right on terms of equality with others and by due process of law. This shows us that the institutions most directly associated with civil rights are the courts of justice.

(2) By the political element I mean the right to participate in the exercise of political power, as a member of a body invested with political authorityor as an elector of the member of such a body. The corresponding institutions are parliament and councils of local government.

(3) By social element I mean the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in a society. The institutions most closely connected with it are the educational system and the social services.” (Marshall, 1992, P. 8; my numbering)

ii. The timeline of development: “It is possible, without doing much violence to historical accuracy, to assign the formative period in the life of each to a different century ― civil right to the eighteenth century, political to the nineteenth and social to the twentieth. These periods must, of course, be treated with reasonable elasticity, and there is some evident overlap,

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especially between the last two.” (P. 10) c. Marshall’s thesis of contradiction between citizenship and social class:

“Citizenship is a developing institution …towards fuller measure of equality. ….Social class, on the other hand, is a system of inequality. …It is reasonable to expect that the impact of citizenship on social class should take the form of a conflict between opposing principles. If I am right on my contention that citizenship has been a developing institution in England at least since the latter part of seventeenth century, then it is clear that its growth coincides with the rise of capitalism, which is a system, not of equality, but of inequality. Here is something that needs explaining. How is it that these two opposing principles could grow and flourish side by side in the same soil? …The question is a pertinent one, for it is clear that in the twentieth century, citizenship and the capitalist class system have been at war.” (Marshall, 1992, P. 18)

d. Marshall’s thesis of effect of citizenship in abating social-class inequalityAt the end of his historical and sociological analysis, Marshall concludes that “I have tried to show how citizenship, and other forces outside it, have been altering the pattern of social inequality. …The inequalities …do not any longer constitute class distinctions in the sense in which that term is used for past societies.” Marshall asserts that his conclusion can be evident in three observations: “First, the compression, at both ends, of the scale of income distribution. Second, the great extension of the area of common culture and common experience. And third, the enrichment of the universal status of citizenship, combined with the recognition and stabilization of certain status differences chiefly through the linked systems of education and occupation.” (Marshall, 1992, P. 44)

3. Debates on Marshall’s Theses:a. Criticisms on the classification of citizenship rights: One of the focal

contentions about Marshall’s thesis is the classification of citizenship into three parts or elements. i. Anthony Giddens, a prominent sociologist in Britain, contends that Marshall

has not given enough attention to the struggle over rights between the bourgeoisie (i.e. employers) and the proletarians (i.e. employees or wage-laborers) . The outcomes of these struggles according to Giddens analysis have extended citizenship right to another domain, namely civil economic rights. They include laborers’ rights to organize and join labor unions and to participate in collective bargaining about wage levels, working conditions, and other labor welfares. (Giddens, 1982)

ii. David Held also points at the new social movements emerged in the 1970s in advanced industrial societies, most notably environmental movement and feminist movement. Held therefore proposes two plausible additional citizenship rights to Marshall’s categories. They are environmental right and feminist right.

b. Criticisms on the Marshall’s characterizations of the developmental path of citizenshipi. Evolutionary vs. conflictual: Giddens criticizes Marshall of characterizing the

development of citizenship rights as “a natural process of evolution, help along where necessary by the beneficent hand of the state.” (Giddens,

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1982, P. 171) In reality, Giddens contends that citizenship rights have been achieved in substantial degree through struggle. The extension of citizenship rights, in Britain as in other societies, was in substantial degree the result of the effort of the underprivileged to improve their lot. Each of the three sets of citizenship rights refers by Marshall had to be fought for, over a span of historical time.” (Giddens, 1982, P. 171, original emphasis)

ii. Progressive- linear vs. reversible-dialectic: Another criticism waged by Giddens on Marshall’s depiction of the nature of the development of citizenship rights is that “Marshall tends to treat the expansion of citizenship rights…as a one-way phenomenon, as so many steps in an irreversible trend of development.” However, Giddens underlines that “the resurgence of deep economic crisis, the prevalence of recession rather than growth, and the cutting-back on welfare service carried out by various Western governments, do not accord with this revision of the progressive development of the welfare state. In Marshall’s analysis, citizenship rights are represented as less fragile and contested than they really are.” (Giddens, 1982, P.172-73)

iii. Citizenship-right development in comparative-historical perspective: Michael Mann, a historical sociologist in Britain, criticizes Marshall thesis as “Anglophile” and “Anglocentric”. He points out that “There is one rather remarkable feature of Citizenship and Social Class. It is entirely about Great Britain. There is not a single mention of any other country. Did Marshall regard Britain as typical of the capitalist West as a whole? He does not explicitly say so. Yet the most general level of the argument explores the tension between economic inequalities and demands for popular participation, both general everywhere by the rise of capitalism This certainly implies a general approach.” (Mann, 1987, P. 340) Michael Mann’s comparative-historical model of citizenship-right in Europe since 1800

Point of departure(Initial regime since 1800)

Ruling-class strategies Historical cases

Constitutional regime Liberal strategy The United States

Reformist strategy Britain

Absolute regime Authoritarian monarchy

Germany (1800 – 1940)

Japan (1800 – 1945)

Austria (1800 – 1910)

Russia (1800 – 1910)

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Authoritarian monarchy Fascist strategy Nazis Germany (1940– 45)

Authoritarian socialist USSR (1910-1991)

4. Socio-political participation as citizenship a. Participation in public affairs as citizenship right: Citizens’ acts of participating

in public affairs can be discerned as part of the entitlements as their citizenship to take part in those affairs. For examples i. As part of their civil rights, all citizens are free from the interference of the

state to take part in assembly, association, religious worship, economic activities, and deliberation about public affairs

ii. As part of their political rights, all citizens are entitled in governmental elections both as electorate and as candidate

iii. As part of their social rights, all citizens are entitled to acquire social services provided by the government. These services may include education, medical care, housing, and other social welfare services.

iv. As part of their civil economic rights, all citizens as employees are entitled to organize and join trade union, take part in collective bargaining and strike, to work in safe and healthy condition, etc.

v. As part of their environmental right, all citizens are entitled to live sustainably in healthy natural environment and/or “culturally conserving” communal environment

b. Participation in public affairs as citizenship obligation: Citizens’ participation in public affairs can on the other hand be discerned as part of the obligations and responsibility as their citizenship to take part in those affairs. For examplesi. As part of their civil obligations, all citizens are obliged to respect and

tolerate other fellow-citizens’ civil liberties to assembly, association, religious worship, economic activities, and deliberation about public affairs.

ii. As part of their political rights, all citizens are obliged to take part in governmental elections both as electorate and as candidate. And they are also obliged to respect and accept political decisions of majority rule even though they are in disagreement with their own choices.

iii. As part of their social obligations, all citizens are obliged to take part in social services provided by the government, for instances attending compulsory education, maintaining public hygiene, etc.

iv. As part of their civil economic obligation, all citizens as employers are obliged to respect and tolerate their employees civil economic rights.

v. As part of their environmental obligations, all citizens are obliged to

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Social-classRelationship

Geo-politicalContext

Ethnic Composition

15

contribute in maintaining and sustaining a healthy natural environment and/or “culturally conserving” communal environment

vi. And most of all, all citizens are obliged to provide human, material and financial resources for the governance of the state both intra- and internationally, e.g. abiding laws, paying taxes, serving public services if need be.

E. A Summary: A Conceptual Map for the Understanding of Rule of Law and Socio-Political Participation

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Citizens Participation

State Governance

Rule of Law

Civil component of Citizenship

Politicalcomponent of Citizenship

Social component of Citizenship

Rule of Law by Formal Legality

Rule of Law for Civil Rights

Rule of Law by Democracy

Rule of Law for Social Justice

Private Sphere

PublicSphere

Market System

Civil Society

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F. Hong Kong State-Society Today1. 1960s, the emergence of the autonomous-welfare colonial state

a. The Suez Crisis of 1959 alarmed the step down of the British Imperial power from the international arena.

b. The Colonial Office was dissolved and merged into the Foreign Office within the UK Government.

c. The Kowloon riot in 1966 alarmed the “unarticulated resentment” of the post-WWII generation resided in the colony. (Scott, 1999, p. 88)

d. The riot organized by the leftists in 1967, which has been interpreted by many scholar as the spilt over of the Cultural Revolution in mainland China. It signified the passive endorsement of the colonial rule by the indigenous Chinese, when they had to choose between two devils. “Most of the people chose to side with the devil they knew.” (Scott, 1999, p. 104)

e. Series of administrative and social reforms were introduced by the David Trench’s administration, which had resumed a more autonomous role in introducing reforms to the colony as long as it can financially afforded them. (Faure, 2003)

f. Sir Murray MacLehose assumed HK Governorship in 1971. He served the longest terms as HK Governor from 1971 to 1982. He has been construed as the governor who had transformed the colonial state into a quasi-welfare state. These social policies included introduction of 9-year compulsory education; weekly labor holiday for all wage-laborers and other labor welfare policy; large scale public-housing and new towns projects, including home-ownership scheme; large scale expansion of public health facilities.

g. Manual Castells underlines the important role of the welfare state performed by the colonial government contributing to the economic development of the colony since the 1950s. (1990; 1992) He writes"A careful analysis of the process of economic development of Hong Kong since the mid-1950s reveals a decisive role by the state in creating the conditions for economic growth, through in a more subtle, more indirect but not less important way than the intervention described in the case of the three other countries" (1992:45-46). “The fundamental contribution...of Hong Kong's government ... was its widespread intervention in the realm of collective consumption, particular through a huge public housing program that houses about 45% of the population in subsidized apartments whose initial appalling quality has considerably improved over time with the building of new towns and large housing estates. In addition, a comprehensive system of public education, public health, subsidized mass transit, social services, and subsidized foodstuff (I would qualify that subsidy on foodstuff is mainly contributed by the Republic of China through import of cheap foodstuff across the border hence I would contend that it is mainly not a contribution of the colonial state of Hong Kong), was put into place over the years, amounting to a major subsidy of indirect wages for the labor force. ... Thus public housing and the special brand of welfare state that emerged in Hong Kong subsidized workers and allowed them to work long hours without putting too much pressure on their employers, most of them with little margin to afford salary increases. By shifting onto the government's shoulders the responsibility for

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the workers' well being, small businesses could concentrate on competitive pricing, shrinking and expanding their labor force according to the variation demand". (1992:48-49)

2. S.K. Lau’s thesis of minimally-integrated social-political system (1982)a. Lau characterized the HK colonial state in the 1970s as “bureaucratic polity”.

“The political system of Hong Kong approximates an ideal-type version which is conceptualized as the ‘bureaucratic polity’. ‘The concept of bureaucratic polity is distinguished from other forms of government by the degree to which national decision-making is insulate from social and political forces outside the highest elite echelons of the capital city’ (Jackson, 1978, p. 4) …What makes the bureaucratic of Hong Kong distinctive is that, while the bureaucracy polity reigns surpeme there, it does not rely on military support for survival. …In essence, it is ‘secluded’ bureaucracy —— selected from political and social forces which might threaten to undermine its autonomy.” (Lau, 1982, p. 25)

b. Subsequently in a collaborative work with H.C. Kuan (1988), Lau has further characterized the HK colonial state in terms of “soft-authoritarian rule”. They states that “Secure in the belief that it is the only political option for the people of Hong Kong, it (the colonial government) feels no imperative to create a political infrastructure to buttress its rule. Thus, unlike other 'hard' authoritarian systems, in Hong Kong there are no government parties, government-sponsored corporatist structure or supportive, state initiated mass organizations. In the same vein, the government has no need to resort to suppression to sustain colonial rule. Consequently, while there is a dearth of positive channels of political participation, the people of Hong Kong are still able to enjoy a tremendous amount of negative political freedom (freedom from government oppression). (1988: 32)

c. The third characteristic of the HK colonial state in the 1970s is its corporatist relationship with the civil society of Hong Kong. By corporatism, it refers to the kind of political-social system relationship, in which the state would deliberately select and recruit various interest groups in civil and political societies into the governing process in order to build the legitimation basis of its government. Ambrose King has characterizes this relationship as “administrative absorption of politics”. It means “a process by which the government co-opts the political forces, often represented by elite groups into an administrative decision-making body, thus achieving some level of elite integration; as a consequence, the governing authority is made legitimate, a loosely integrated political community is established.” (King, 1981, p.130)

d. In contrast to the colonial state, S.K. Lau has characterized the HK social system as utilitarian familism. By utilitarian familism, it refers to “the normative and behavioural tendency of individual to place his familial interests above the interests of society and of other individuals or groups, and to structure his relationships with other individuals and groups in such a manner that the furtherance of his familial interests is the overriding concerns.” (Lau, 1982, p.72)

e. S.L. Wong, another local sociologist, further the conception of familism, by focusing on the structure and function of familial enterprise among Hong Kong Chinese. He coins the term entrepreneurial familism. It refers to “ethos involve

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the jia as the basic unit of economic competition. The family provides the impetus for innovation and the support for risk-taking. Entrepreneurial familism is by no means confined to the rich sector of the population in the form of family firms; it permeates the whole society. Where there is little physical capital to be deployed, heads of the less well-off families still marshal the limited jia resources and try to cultivate human capital for collective advancement. (1988:142)

f. In summary, S.K. Lau and others have printed a HK state-society relationship in the 1970s as a minimally integrated political-social system, in which both were more or less work independently and did not demand much from each other. As a result, it constituted a economic and political miracle of prosperity and stability amid of the in the turbulence of Asia in the high tide of the Cold War.

3. The passage from the British colonial state to the SAR of the PRCa. The emergence of the 1997 unification issue in early 1980s

i. In 1979, Governor MacLehose visited Beijing and met with Deng Xiaoping. Deng ensured that HK investors could have their worries at rest(投資者請放心).

ii. In 1982 amid of the Falkland victory, Mrs. Thatcher visited Beijing and met with Deng Xiaoping. Deng refute to endorse the extension of the lease of New Territories beyond July the first 1997. And insisted to have Hong Kong unified with mainland China on July the first 1997.

iii. In July 1983, representatives from the PRC and UK started the Sino-British negotiation on the 1997 unification issue.

iv. On September 24 1983, the HK dollar’s exchange rate with US dollars drop drastically in response to the deadlock of the Sino-British negotiation. The date had not only been signified as the “Black Saturday” but had also espoused the exchange-rate tight between US and HK dollars to 1:7.8.

v. In December 19 1984, the Sino-British Joint Declaration on the Question of Hong Kong was signed by the Prime Ministers Zhao Ziyang and Margaret Thatcher.

b. Hong Kong’s Long March to democratizationi. Sing, Ming (2004) Hong Kong’s Tortuous Democratization: A Comparative

Analysis.ii. Ma, Ngok (2007) Political Development in Hong Kong: State, Political

Society, and Civil Society4. Sing Ming’s thesis of three-layer actors model democratization

a. In comparison with democratization cases of the “Third Wave”, Sing underlines that the case of HK’s democratization is “an anomaly for political modernization theory”.

b. With reference to the elite-centered transition theory and social movement theory found in the case studies of the Third Wave democratization, and incorporating Lau and Kuan’s thesis of the PRC opposition and Alvin So’s thesis of societal analysis; Sing constructed a three-layer actors model to understand the “tortuous democratization process” which undertook by HKSAR.

c. The first layer of actors: Two international actors

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i. The UK government: Pro-democracy groups ii. The PRC government: Anti-democracy groups

d. The second layer of actorsi. The civil society: By civil society, Sing refers to “the pluralistic structure of

economic, social, and political organization outside the state.” (Sing, p. 21) ii. The political society: “Political society consists of political parties, their

affiliated networks, organizations and campaigns that are intent on controlling the state.” (Sing, p. 21)

iii. “It is important to assess the actual relationship between civil society and political society in Hong Kong by addressing the following points:- the positions and strategies of the major social groups of civil society and

political parties in political society with respect to democratization;- the degree of cooperation or conflict between civil society and political

society in promoting democratization.” (Sing, 2004, p. 22)e. The third layer of actors: The general public and their political culture, attitudes

and orientation towards the state as well as individual political issues. (Sing, 2004)

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5. Ma Ngok’s institutionalist approach to the political development of HKSAR.a. The state in historical institutionalist perspectiveb. The political society and the development of

i. The legislature, ii. The electoral systemiii. The political parties

c. The civil societyi. The encroachment of the state on civil societyii. Civil society in self-defense

6. The Hong Kong state in transition 1984-1997a. Spilt institution of the state: One f the significant features of the HK state in

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transition period from 1984 to 1997 is that the institution of the state of Hong Kong had practically been spilt into two in terms of both its structure and discursive process. One is dominated by the PRC government and its supporters in Hong Kong and by the UK and HK governments

b. On the part of the British-HK colonial statei. The publication of the consultative documents of Green Paper: Further

Development of Representative Government in Hong Kong in July 1984 and White Paper: Further Development of Representative Government in Hong Kong in November 1984. They triggered the controversies on the scope and pace of democratization in Hong Kong within Hong Kong society and alighted another round of antagonism between the British and the Chinese governments.

ii. As a response to the June-Fourth incidents in 1989, Governor David Wilson initiated a series of reforms in his Policy address in Nov 1989 to pacify the fears and worries advocated in the two consecutive rallies, which about one millions HK residents took to the street respectively. These reforms included- construction of the new airport;- introduction of the British Nationality Selection Scheme; - drafting and passage of the Bills of Human Rights;- further expansion of first-degree graduate programs; etc.They, specifically the funding of the new port, had further alighted the antagonism between the British and Chinese governments.

iii. David Wilson was replaced by Chris Patten as the last Governor of HK in July 1992. Subsequently, Patten introduced his version of political reform for the elections of the three-tire representative councils (District Broads, Municipal councils, and the Legislative Council) in 1994 to 1995. The proposal had triggered controversies within HK society and exacerbated the antagonism between the British and Chinese governments.

iv. The Patten’s reform and its designed elections were carried out as planned though with the definite prospect of “No Through Tran” on the July First 1997.

c. On the part of the PRC and the in-coming SAR state i. In 1985, The PRC organized two committees, which are Basic Law Drafting

Committee (BLDC) and Basic Law Consultative Committee (BLCC). They were responsible for the design of the state institution for the in-coming SAR government. Among the members of these committees were prominent pro-democratic figures of HK , such as Martin Lee and Szeto Wah. It signified the PRC’s intention to constitute a corporatism and “united front” for the post-1997 society of HK. However, the drafting work had triggered yet another round of controversies within HK society.

ii. The June-Fourth 1989 crackdown and the uproar of HK residents in defying the way the PRC government handling the incident had laid the foundation of antagonism and distrust between the PRC government of the majority of HK residents. Two of the incidents which bore significant effects on the institutionalization of the HKSAR state were- the expulsion of Martin Lee and Szeto Wah from the BLDC, it signified

the collapse of the corporatism and united front for the HKSAR state. It

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also reduced significantly the legitimacy of the constitutional status of the Basic Law

- the constitution of the Alliance in Support of Patriotic Movements of China (ASPDMC) had permanently signified HK residents’ stance of defiance toward their sovereign state

As a result, they greatly jeopardized the legitimacy and operation of the institution of the SAR state.

iii. From June-Fourth aftermath to “setting up another stove”: Reactions taken by the PRC government in response both the defiant uproar of HK residents and the reforms of the HK colonial state had greatly jeopardized the institutionalization process of the future SAR state. These reactions included

- In response to the June-Fourth rallies, PRC officials publicly renouncing HK as the most anti-communist base around the world;

- tightened up the democratic initiations stipulated in the Basic Law;- quarrel with UK over the financing arrangement for the construction

project of the new airport, and subsequently the signature of the Memorandum of Understanding Concerning the Construction of the New Airport in Hong Kong and Related Questions between the two prime ministers Li Pang and John Major in September 1991;

- renouncement of Chris Patten’s proposal of political reform and subsequently breaking up in the Sino-British negotiation on the political reform proposal;

- establishment of series of mechanisms leading to the setting up of another stove, these included setting up of + Hong Kong Affairs Advisers in 1992; + Preliminary Working Committee in 1993; + Hong Kong District Advisers in 1994;+ Preparatory Committee in 1996;+ Selection Committee of the Chief Executive and the Provisional

Legilsative Council; d. Taken together the actions taken by both the British and Chinese governments

in all the quarrels during the transition period, they had not only fragmented or even dismembered the institution of the HK state but had also greatly weakened its governance and legitimation bases.

7. The Hong Kong society in transition 1984-1997a. Both Sing Ming (2004) and Ma Ngok (2007) have made a distinction between

civil and political societies in their analyses of the political development of Hong Kong society.i. By civil society, Sing refers it to the “pluralistic structure of economic, social,

and political organizations outside the state.” (Diamond et al., 1989, p. 22; quoted in Sing, 2004, p. 21) Ma refers it to “a realm of organized social life that is open, voluntary, self-regulating, autonomous from the state, and bounded by a set of shared rules, the civil society stands between the state and the private (Diamond, 1999, p. 221)” (Ma, 2007, p. 160)

ii. By political society, Sing characterizes that “political society consists of political parties, their affiliated networks, organizations and campaigns that are intent on controlling the state.” (Sing, 2004, p. 21) Ma refers to Stepan’s

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definition (1988, P. 4) that it is “‘the arena in which the polity arranges itself for political contestation to gain control over public power and the state apparatus.’ …The political society, it can be said, is the intersection of the state and the civil society.” (Ma, 2007, p. 94)

b. The civil society of Hong Kong have been characterized by scholars of Hong Kong studies as a well developed social sphere, which can traced back to the nineteenth century in the form of Tung Wah Group (established 1870), Po Leung Kuk (established in 1878), and many clan- and village-based associations. (Sinn, 1989; ..) However, as S.K. Lau points out (Lau, 1982) these social organizations of civil society among Chinese residents in HK have seldom asserted themselves politically and have minimally integrated with the HK colonial state before the 1980s. They have developed a mode of social accommodation of politics among themselves, that is, they have developed a kind of self-contained safety nets independent of the colonial state of HK. However, since the 1997 reunification issue emerged in 1982, the civil society of Hong Kong have been mobilized both "positively" and "negatively" by series of political reforms, controversies and even conflicts.

c. By positive mobilization, it refers to the expansion and institutionalization of political-participatory opportunities initiated by political reforms introduced since 1980s. These reforms includedi. introduction of directly elected members into district councils in 1982;ii. introduction of elected members from functional-constituencies and

electoral colleges into Legislative Council in 1985;iii. introduction of geographical constituency election into Legislative Council in

1991;iv. expansion of the electoral bases of functional constituencies and electoral

colleges and reform of the electoral system of the geographical- constituency election to "single-seat, single vote" system in 1995;

v. electoral mobilization in the 1998, 2000, 2004, and 2008 Legislative Council elections

All these reforms and subsequent election served as institutionalized mobilization of civil-society organizations to formally participating in political affairs of HK.

d. By negative mobilization, it refers to the series of political incidents emerged since the 1980s, which pushed the civil society of HK to mobilized and organized themselves out of "self-defense" (Ma, 2007). These incidents includedi. marginalization or even exclusion of HK residents’ participation iduring the

negotiation of the Sino-British Joint Declaration on the Question of Hong Kong during 1983 to 1985;

ii. the institutional constraints imposed by both British and PRC governments on the plan for Further Development of Representative Government in Hong Kong during in 1984;

iii. quarrels among fractions of civil society in drafting process of the Basic Law of HKSAR government from 1985 to 1990;

iv. the Tiananmen crack on June-Fourth 1989, the subsequent mass rallies of HK residents, the constitution of the ASPDMC, Chinese officials’ renouncement of HK residents reactions to the crackdown as anti-

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communist, …which led to open confrontation between HK residents and their in-coming sovereign state;

v. Chris Pattern’s political reform package issued in 1992 triggered yet another round of quarrels between British and PRC governments and among fractions of HK civil society, which tore the civil society further apart;

vi. the PRC government’s project of “setting up another stove” and the anticipation of the prospect of “no through train” for the post 1997 political institutions, which disheartened HK residents and their confidences of the prospect of a democratic and at the same time stable and prosperous Hong Kong;

e. To summarize, though the civil society during the transition period from 1982-1997 had witnessed some institutionalization of expansions of political-participatory opportunities, most notably direct elections of legislative councilors; at the same time the civil society of HK had also undergone waves of destructive controversies among fractions within HK civil society and between HK residents and their retreating as well as in-coming sovereign states. As a result, it had practically fragmented HK civil society into disarray.

f. The institutionalization of the political society: As the HK polity underwent its slow-paced democratization process from 1984 to 1997, essential constituents of political society, such as political parties and electoral system began to institutionalize in HK society. These developments are listed as follows.i. Formations of political parties

- Meeting Point（匯點）in 1983;- Hong Kong Affair Association（太平山學會）in 1984;- Progressive Hong Kong Society（香港勵進會）in 1984; - Hong Kong Association for Democracy and People’s Livelihood（香港民主民生協進會）in 1986;

- United Democrats of Hong Kong（香港民主同盟）in 1990;- Liberal Democratic Foundation in（自由民主聯會）1991; - Cooperative Resource Center（啟聯資源中心）in 1991;- Democratic Alliance for the Betterment of Hong Kong （民主違建港聯盟）in 1992

- Liberal Party （自由黨）transformed from Cooperative Resource Center in 1994;

- Democratic Party（民主黨）transformed Meeting Point and United Democrats of Hong Kong in 1994;

- 123 Democratic Alliance（一二三民主同盟）in 1994; - Frontier（前線）in 1996; - Citizens’ Party（民權黨）in 1997;

ii. Legislative Council elections

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(Ma, 2009)

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(Ma, 2007)

g. To summarize, the development of the political society of Hong Kong have been restrained as well as fragmented by the institutional design of the Basic Law in a number of ways, which have contributed to the “abortive development” of the political parties in Hong Kong (Ma, 2007). These institutional constraints includei. Constitutionally, the power of the legislature is structurally fragmented into

two halves, namely legislators of the functional constituencies and those of geographical constituencies.

ii. Political parties cannot attain the status of the ruling party. That is because according to the Basic Law, the chief executive of SAR cannot be member of any political party. Furthermore, it is because there is no constitutional linkage between the electoral result of the legislature and that of the chief.

iii. Though members of political parties can achieve the status of legislative councilors, however they can only play the role of opposition parties, that is, they can only perform negative role of criticizing and scrutinizing the governance of the SAR government and can never demonstrate the capacities of governance by a ruling party.

iv. the powers of directly elected legislative councilors are constitutionally limited in numbers of ways, for examples

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- directly elected members only constitute, at the most in 2008, half of the seats in the legislature;

- legislative councilors’ power of initiating bills are constitutionally restrained to bills of no public-expenditure implications;

- the “voting by group” （分組點票）rule, which stipulated that passages of bills must obtain simple majorities from both the functional-constituency and geographical-constituency councilors, has greatly restrained the voting power of the directly-elected legislators;

8. The Hong Kong SAR state 1997-2005a. The institutionalization of the executive dominant （行政主導）state

According to the institutional design stipulated in the Basic Law, the HKSAR state is supposed to be a state of executive dominance. The features of the executive dominant system have been designed as follows. (Ma, 2007, p. 58-59)i. “The SAR chief executive and the bureau secretaries appointed by the CE

have most of the policy making power. Most government policies do not need the approval of the legislature unless they entail changing of laws or extra financial appropriations.

ii. “The chief executive has a superior constitutional status to other branches of the government. …

iii. “The executive holds the initiative to legislate. …iv. “The CE has a wide range of appointment power, including the power to

appoint judge, major government officials, members and chairs of policy commissions, boards of public corporations, …

v. “If the CE considers a bill passed by Legco “not compatible with the overall interests” of Hong Kong, he can return it to Legco for reconsideration. The CE can dissolve Legco, if he does not want to sign a bill passed the second time by Legco, or if Legco refuses to pass the annual budget or any important bills.”

b. The first round of blunders of the executive dominant system:In October 1997, chief executive delivered his maiden policy addressed to the provisional Legislative Council. He advocated a grand design for the 21st century HKSAR. Mr. Tung also appointed three young members of the executive council, Mr. Antony Leung Kam-chung, Leung Chun-ying, and Tam Yiu-chung to in charge of the three policy areas of education, housing and elderly. However, the grand design was met with numbers of unaccepted blunders and administrative mishaps. These included

i. outbreak of Asian financial crisis in October 1997;ii. outbreak of bird flu in December 1997;iii. property-market collapse and economic recession in 1998; iv. chaotic opening of the new airport in Aug 1998; v. ambush waged by international speculators on HK financial markets on

September 1998; c. These incidents revealed at least two institutional flaws of the "executive

dominant system" i. The executive-dominant system of chief executive lacked supports from the

civil-servant administration to carry out the grand design outlined in the

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maiden policy address and to cope with blunders and crises;ii. The executive-dominant system also lacked political coalition from political

and civil societies in support of the chief executive's governanced. The second round of blunders of the executive dominant system

i. Anson Chan retired from her chief- secretary post one year ahead of schedule, which signified the discordance between the chief executive and the civil-servant administration;

ii. At the beginning of his second term as SAR chief executive, Mr. Tung reformed the civil-servant administration by introducing the Principal Officials Accountability System（主要官員問責制）in 2002. However, several members of these newly appointed principal officials were met with administrative blunders during their induction period. These blunders were (Ma, 2007, p. 68)- Secretary of Financial Service and the Treasury Frederick Ma's "penny

stock fiasco" in Aug 2002;- Secretary of Education and Manpower Arthur Li's blunder over "the

CUHK and HKUST merge" in Oct 2002;- Secretary of Finance Antony Leung's "Lexus-gate" in March 2003

iii. At the end of 2002 the outbreak of SARS, as a result Hong Kong underwent her second economic recession in five years

e. The third round of blunders of the executive dominant systemi. HKSAR government initiated the legislation process of the Article 23 in May

2003;ii. On July First 2003, half a million Hong Kong residents took to the street to

signify their discontent towards the HKSAR government.iii. On July 15 2003, the chairman of the Liberal Party Mr. Tin Pak-sun publicly

announced that he would not support the passage of the Article 23 legislation the Legco. It signified the end of the coalition between the business sector and the HKSAR government;

iv. On July ?? 2003, Secretary of Finance Antony Leung and Secretary of Security Regina Ip handed in their resignations.

v. In March 2005, Mr. Tung resigned from the chief executive post and Mr Donald Tsang was appointed to serve as chief executive for the remain of Tung's terms.

f. According to the institutional design of the Basic Law, the post-1997 state of HKSAR is supposed to be an executive dominant system in coalition with both the pro-China leftist camp and the business sector of the civil society. This executive-dominant state is also expected to be assisted by one o the most efficient civil-servant administration around the world. However, by the time Mr. Tung left his office, the HKSAR state has been characterized as "a weakened and fragmented autocratic state" (Ma, 2007, p. 90) waiting to be reinstituted.

9. The Hong Kong society 1997-2008i. In post 1997 era, the institutionalization of the political society within the civil

society of Hong Kong has entered into a formalization and habitualization stage. That is both the practices of party politics and electoral campaigning have more or less been customized within the civil society of Hong Kong

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ii. However, the July-First rally has espoused the constitution of two more political parties. They are - Civic Party in（公民黨）2006;- League of Social Democrats（社會民主連線）in 2006

iii. The formation of the League of Social Democrats and subsequently three of its members being elected into the Legco have in some sense radicalized if not vulgarized the ecology of party politics in Hong Kong.

iv. However, in general the constrained and fragmented features of the political and civil societies of Hong Kong have remained more or less the same before 1997.

10. S.K. Lau Governance of HKSAR since Reunification 15 ago….

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