A Comparative and Jurisprudential Analysis of the “Umbrella Movement”—Is It a Constitutional Moment?

Abstract

This paper conducts a comparative and jurisprudential analysis of the “Occupy Central Movement” (OCM) in Hong Kong. Its comparison with other civil disobedience movements reveals that it has the potential to become a constitutional moment because it aims at changing existing constitutional norms. Theoretically, this paper first seeks to utilize Professor Ackerman’s constitutional moment theory to analyze the OCM, which demonstrates that the OCM has completed the first three steps for a constitutional moment but has not moved to the fourth and fifth steps. It then attempts to provide jurisprudential explanations of why the OCM has occurred but failed to evolve into a constitutional moment. Comparative study with constitutional moments in American constitutional history identifies four reasons why the OCM failed. Further, the paper applies two influential theories including the self-determination theory and national pluralism theory to the OCM. Both theories support the argument that Hong Kong people are distinct and entitled to decide their democratic development progress. The main theoretical contribution of this paper lies in its finding that the application of the two theories has been compromised and/or conditioned in Hong Kong by its unique constitutional setting, especially the constitutional principle of “one country, two systems” contained in its constitutional document—the Basic Law. Under the principle, only when the political will of people in both Hong Kong and the whole of China supports genuine democratic election of its Chief Executive will democratic development in Hong Kong become possible, whereas the political will of mainland Chinese trumps that of Hong Kong people.