"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, June 21, 2015

A suicide for no purpose: Beijing loyalists’ self-destructive move on electoral reform package in Hong Kong

Chinese honor the memory of Qu Yuan, a poet and political activist (3-4 Century BC) on the 5th day of 5th lunar month of every year. Yuan took part in a fight to save his state against hostile take over by a neighbouring state but had to retreat and be in exile owing to orchestrated maligning of his character. He wrote poetries creating a genre of political and philosophical verses. Finishing his masterpiece, he chose to give up his life by drowning than being a witness to the loss of his state. Yuan was so loved by the people that they rushed in boats to rescue him and later threw cooked rice in water that fish spares his body.  This is a popular legend of Dragon Boat festival. The festival includes dragon boat races that replicate the haste to save the life of Yuan and eating Zongzi, cone shaped sticky rice wraps. A death for a cause, well remembered after centuries.

The political suicide of pro- establishment Hong Kong legislators just three days ahead of commemorating Qu Yuan, in relation to vote on political reform, but will go down in history as a blunder that served no purpose. The run up for reform in Hong Kong with relation to universal suffrage in electing its Chief Executive has been a long strenuous period of struggle, strain, grit and grind. All collapsed in a miscalculated walkout giving advantage to none but causing severe dent to self-worth. The fate of the truncated reform proposal that offered pseudo-democracy was pre-destined; it was bound to fail but for any last minute converts from the pan-democrats.

A short background

Electoral reform to ensure universal suffrage in electing the Chief Executive of the Hong Kong SAR has been in vogue for sometime now. The debate has been centered on the details of the proposal. The reform offered all eligible a chance to vote but to candidates vetted by a committee packed with pro-Beijing sympathizers. The pan-democrats adopted a stance to veto the proposal in legislature.  The pro-Beijing camp meanwhile had steered a roadshow and campaign to garner support for the reform proposal. The tagline of pro-Beijing camp was - ‘pocket it’.  The pan-democrats were warned that by disapproving the reform package, they are holding the right to vote of the people of Hong Kong to ransom.

The reform was put to vote on 17th of June 2015 in a legislative council of 70 members with 43 Beijing loyalists and 27 democrats, assured to vote against the motion. Statistics indicate the predictable outcome of veto, as win require 2/3 majority. The count of vote on reform proposal was an anticipated veto but the surprising element was the margin, the motion got defeated by a whooping differential; 28 nos (one unexpected vote from the block of 43 joined the democrats) and a measly 8 yes. This surprising self-goal by the pro-establishment clique happened because of an untimely and miscommunicated staging of a walkout to facilitate voting of one member who was late to report and was on his way to the House. The walkout turned out to be partial leaving quorum for voting, resulting in a loss of opportunity for the walked out to express their loyalties to Beijing.


Fall of the reform package was inevitable. Who defeated it and how became the matter of amusement. With it crumbled the preplanned strategy of the pro-establishment in the forthcoming district election and 2016 Legislative Council elections. A major plank for them would have certainly be, how the pan-democrats snatched away the possibility to pocket the reform graciously offered by Beijing and lost an opportunity to move ahead. As a strategy to secure reform henceforward, more seats in Legislative council would have been sought. The present shoddy performance leaves less room to convincingly take out the democrats on this count.

The loyalists have exposed their political naiveté and miscalculation at a critical juncture. It shows them in poor light and cast doubt on capabilities of holding future and higher responsibilities. This also highlight that, they may be competent business people but yet to be evolved as adept politicians.

The flurry of activities that happened in the liaison office of Central Government for Hong Kong, post the fiasco clearly shows how it irked Beijing. It is sure to cost at least some their dreams of running for the post of Chief Executive or a second term in legislature.

The democrats had the last laugh. The expected defeat of the proposal was sweetened by the unanticipated gift of gaffe by the treasury benches. In long term, this episode does not contribute anything definite to achieving the ultimate aim of universal suffrage in form and substance. At the most, they might be in a position to use it as a campaign tool.  Even gaining a decisive majority in the Legislative Council is no guarantee towards democracy as it is contingent on the Central Government in China given the Basic Law of Hong Kong.


The debacle has changed nothing but for an exposé of inefficiency of a bunch of representatives with whom the destiny of Hong Kong is vested. This is an indication that the political system needs a serious relook as to who represents the people and how they are chosen.

In the backdrop of reform contest, a disquieting and radical trend of localism is perceived to be emerging. Asia’s world city is under a serious threat of turning into a parochial population. 

Wednesday, June 3, 2015

Assortment of SSRN Articles on Constitutional Law - May, 2015

  1. The Framework Model and Constitutional InterpretationJack M. Balkin, Posted on May 20, 2015 

    Constitution is perceived as a basic framework that permits and facilitates political development. Its development need not be only through formal amendments, but in constitutional practice as well. It is argued that “[c]onstitutional construction is a dialectical process involving all branches of government as well as civil society, which together build out the constitution over time. The framework is unfinished and undergoes a continuous process of construction by different agents. “

    2.   Deference and Due Process, Adrian Vermeule, Posted on May 27, 2015

    Procedural due process is no more a judicial enterprise. The crux of the argument is that “the courts for their part often defer, explicitly or implicitly, to agencies’ due process decisions.”

    3.   The Difficulty of Constitutional Amendment in Canada, Richard Albert , Posted on May 24, 2015

    Author renders how extra constitutional measures make amendment tougher than US constitution. The question raised is how these extra textual sources affect democracy and undermines the ‘purpose of writtenness’.  

    4.  The Unamendable Core of the United States Constitution, Richard Albert , Posted on May 2, 2015

    Technically US constitution have no limitation on amending any part but the author argues that “if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy.” It is further said that unamedability “is more effective as a declaration of importance than as a referent for judicial enforceability”

    5. Canadian Constitutional Identities, Eric M. Adams , Posted on May 19, 2015http://ssrn.com/abstract=2608150

    This paper is a look into constitutional history of Canada and its quest for identity.

    6. Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an UnamendablePrinciple, Yaniv Roznai , Silvia Suteu , Posted on May 5, 2015

    “This article reflects on the protection of territorial integrity in the Ukrainian constitution, and especially within its provision of unamendability, against the backdrop of the 2014 Crimean crisis.”

    7.  On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?, Xenophon Contiades , Alkmene Fotiadou , Posted on March 7, 2015

    The paper examines how constitutions respond to financial crisis and similar external shocks. Explores the contents in constitution that makes it resilient.

    8.     The Architecture of Constitutional Time, Richard Alexander Izquierdo , May 1, 2015

    This is a reflection and variance to Bruce Ackerman’s ‘We the People’ series.

    9.     Conditionality as Opposed to Severability, Tom Campbell , Posted on  May 20, 2015

    The paper carries a part of debate on the fate of statute held partially unconstitutional. Author’s argument is that rest of the statute also should go.

    10. Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment, Anne Van Aaken, Posted on May 14, 2015

    11. Foreign Precedent in State Constitutional Interpretation, Jonathan L. Marshfield , Posted on May 26, 2015

    12. Centralising Authority: Comparing Executive Power in India and Sri Lanka, Rehan Abeyratne, Posted on May 5, 2015

    13. Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally (A Response to Aziz Huq), Erin Ryan, Posted on May 6, 2015.http://ssrn.com/abstract=2602581

    14. Religion and Constitutionalism: Oscillations Along a Continuum, Paul T. Babie , Posted on May 13, 2015

    “This review article analyses three books published between 2010 and 2013 and explores the ways in which a nation, secular or otherwise, can deal with religion within its borders, both legally and socially.”

    15.  Parliamentary Sovereignty as a Barrier to a Treaty-Based Partnership, Lydia O'Hagan, Posted on May 13, 2015

    16. Public Involvement and Constitutional Theocracy in Iran, Shabnam Haji , Posted on May 6, 2015.

    17. The Constitution of the Netherlands at 200: Adaptive Capacity and Constitutional Rigidity, Reijer Passchier , Posted on May 18, 2015

    A constitution aged two centuries is a good guide to other nations to learn how it withstood the test of time.

    18.  Equality Constitutional Adjudication in South Africa, Anne Smith, Posted on 25 May, 2015

    19.  We the People? – Theorising Constitutional Democratic Legitimacy to Reflect on and Enrich New Zealand’s Constitution, Georgia Lockie , Posted on May 13, 2015

    Major theme of the paper is democratic legitimacy and how it enriches the constitution. Uses Bruce Ackerman’s “We the People” as foundation for enquiry.

    20. Institutional Developments, Academic Debates and Legal Practices on the Constitutional Review in China: 2000–2013, X.Yang Cheng , Posted on May 15, 2014

    Judicial review in China has its own meaning and content. National People’s Congress Review Model has been established since the 1982 Constitution, which is known for being inactive. The article explores a way to reform the review system within limits permitted.

    21.  Legislative Review Under Article 14, Tarunabh Khaitan , May 12, 2015
    This is a chapter in the Oxford Handbook of Indian Constitutional Law. Explains two existing doctrines that hold the field of legislative review in India; the doctrine of classification and the doctrine of arbitrariness. The central argument is as follows “(a) the classification test (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules (whether or not legislative in character); (b) it is a limited and highly formalistic test applied deferentially; (c) the arbitrariness test is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (in the actor-sensitive sense). The way forward is to beef up the classification doctrine to realise its true potential, and abandon the arbitrariness doctrine with respect to actor-sensitive legislative review.”

    22. HIV and the South African Constitution: Claiming Rights to Combat an Epidemic, Timothy Fish Hodgson , Mark Heywood , Posted on May 25, 2015

    23.  Civil Society and Constitutional Reform in Africa: A Case of Ghana, Mawuse Hor Vormawor , Raymond Atuguba

    This is an attempt to consolidate the contribution civil society has made to the making and reform of democracy and constitution in Ghana. The connect between the civil society and the process has not been smooth and is assessed to be suboptimal. 

Thursday, May 28, 2015

My version of democracy v. your version - the Hong Kong experience

Electoral reform is in the agenda of Hong Kong’s Legislative Assembly and is hotly debated in public sphere. Democratic assertions of Hong Kong have attracted world attention lately by the sustained occupy movement spearheaded by the youth of Hong Kong. It showcased the spirit and aspirations of a major section of the Hong Kong people and stood ground against the indomitable Chinese political heads. The movement made an indelible signature in the political and social map of Hong Kong.

The eye of the storm is the election of the Chief Executive of Hong Kong for the impending 2017 term. Article 45 of the Basic law of Hong Kong Hong Kong states that [t]he Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.
The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. Specific method of execution of election is provided in Annexure I. Complete understanding of election process include annexures incorporating decisions of the National People’s Congress Standing Committee (NPCSC). The language of Article 45 has given enough play for the Central People’s Government to assert its intentions.

“Selected by election or through consultations held locally”- “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee” – Though there is no mandate so to say that Chief Executive is to be selected by election, NPCSC has decided that it shall be by universal suffrage. So far so good, but as it is often said, the devil is in the details, every eligible voter will have one vote but the candidates who shall be qualified to contest will be pre-screened by a nomination committee. Incidentally, the nomination committee of 1200 members is carefully packed with pro China sympathizers that the outcome of election, whether is it is A or B will be the choice of China and may not be of the people of Hong Kong.

The unrest was on this plan of the Central People’s Government to instill a political process similar to the National People’s Congress. The nomination Committee that was thought to be an interim arrangement, which progressively will give way to a wider world understanding of democracy and universal suffrage, is now here to stay. The reform proposals which were expected to bring the region closer to common understanding of democracy, on the other hand, is creating its own definitions. This realization, coupled with economic, cultural and sociological reasons that a major portion of Hong Kong sought for political self-determination in choosing their political head.

The present reform plan introduced by the Chief Secretary is fundamentally no different but with a new feature of a run off stage in the nomination committee. A candidate seeking to contest should get at least 120 endorsement of the members of the nomination committee, the endorsement may go up to a maximum of 240. Mathematically, this will limit the number of candidate between 5 to 10. There will be a run off election at this stage by secret ballot wherein the members of the nomination committee shall choose minimum two candidates who shall contest for the post of Chief Executive. They can vote for as many numbers of candidates as they wish additionally. It is only those candidates who get more than 50% of votes of the nomination committee who can contest the public election.

The mood of the public is difficult to gauge with demonstrations pro-democracy and pro-Beijing being staged alternatively in the city. One of the rally by the Beijing loyalist by conservative numbering was reported to be attended by 80000 people, but on the sidelines are stories that participants were paid, staffs of industrials houses were mandated to participate etc. The opinion polls by Joint - University Survey on 2017 Chief Executive Election Proposal show a statistics of 43.5% support for the proposal, 36.8% dissatisfied class  and 19.7% undecided group in the period between  20-24/05/2015.

The future of the proposal to be passed in the Council is grim unless the treasury bench gets the support of few from the pro democracy camp. The proposal needs two third votes to get passed. The composition of 70 members Legislative Council with 27 pro-democrats gives them a possibility of veto. A veto foreseeably will put the reform back to square one to the tune that the 2017 election will be conducted in the 2012 format. This will continue till Beijing loyalists get a clear majority in the Legislative Council to pass the reform package. A pro-democrat majority in Legislative Council in coming local body election contested on the platform of Electoral and democratic reform will be the defining moment of the popular sentiments. Nevertheless, the sectoral representation pattern of Hong Kong and the political arrangement at the hand over in 1997 will limit its self-determination to a significant extent.