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From “Occupy Central” to Democracy: Is a Referendum for Hong Kong Feasible and Desirable?

Published online by Cambridge University Press:  23 March 2016

Feng Lin and
Daniel Alati
Feng Lin
Affiliation:
City University of Hong Kong, Hong Konglwlin@cityu.edu.hk
Daniel Alati
Affiliation:
Ryerson University, Canadadaniel.alati@ryerson.ca
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Abstract

This article seeks to utilize the existing literature on referendums to discuss the current situation in Hong Kong in order to make some theoretical and practical contributions to the field of constitutional studies. Theoretically, it attempts to situate and analyse Hong Kong’s current situation within Professor Tierney’s influential framework on constitutional referendums in order to further develop the constitutional theory in this area. Practically, it analyses, through comparative study, whether (and if so, how) referendums might provide a mechanism through which Hong Kong’s constitutional debate could productively move forward. It concludes by reiterating aspects of the Hong Kong experience that have aligned with, and further contributed to the constitutional theory on referendums and representative democracy. Moreover, it recommends that the Hong Kong Government begin consultations towards the tabling of legislation for a non-binding advisory referendum to be developed in accordance with the lessons learned from the jurisdictions discussed throughout the article.

Information

Type
Articles
Information
Asian Journal of Comparative Law , Volume 10 , Issue 2 , December 2015, pp. 259 - 294
Copyright
© National University of Singapore, 2015 

On 31 August 2014, the Standing Committee of the National People’s CongressFootnote 1 (NPCSC) in China released its Framework Decision relating to the Selection of the Chief Executive in Hong Kong in 2017 Footnote 2 (the Decision). The Decision has led to an incredibly polarized debate in Hong Kong about the appropriate path towards universal suffrage and electoral reform, and has attracted the attention of the global community. Critics of the Decision argue that it is an affront to the legal and political rights enshrined in Article 25 of the International Covenant on Civil and Political Rights (ICCPR), is against the will of the Hong Kong people, and is a significant setback for democratic reform in Hong Kong. In contrast, proponents of the Decision argue that it is a pragmatic solution, one which is in accordance with the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law) and will provide for organized and fair elections, and has the support of the majority of the Hong Kong people.

This article seeks to utilize the existing literature on referendums to discuss the current situation in Hong Kong in order to make some theoretical and practical contributions to the field of constitutional studies. Theoretically, it attempts to situate and analyse Hong Kong’s current situation within Professor Stephen Tierney’s influential framework on constitutional referendums,Footnote 3 in order to further develop the field of constitutional theory in this area. Practically, it analyses whether (and if so, how) the referendum might provide a mechanism through which Hong Kong’s constitutional debate could productively move forward. As such, it analyses the legal status and historical use of referendums in a number of foreign jurisdictions, including Australia, Canada, the United Kingdom (UK), New Zealand, Switzerland, California, and Taiwan. In doing so, it considers whether referendums could be appropriately adopted and refined to fit Hong Kong’s legal and political context. Moreover, the article considers the “lessons learned” from the use of referendums in these jurisdictions in order to make specific recommendations about how the possible use of referendums in Hong Kong would have to be designed in order to mitigate against some of the inevitably polarizing results of referendums that deal with sensitive and contentious political and legal issues.

After this Introduction, Part I sets out the background to the ongoing debate on universal suffrage in Hong Kong. It explains the main points of contention behind the two sides of this incredibly polarized debate, notes some of the recent attempts made to find a solution that might appease both sides, and illustrates their respective claims to represent the will of the public in Hong Kong. Part II then presents the results of a comparative scan that analyses the legal framework for the use of referendums in several jurisdictions, with an eye towards illuminating the desirable legal setting for referendums in Hong Kong. These jurisdictions are chosen for a variety of reasons, including: (a) to consider both common law and continental legal systems; (b) to consider jurisdictions where the use of referendums is both rare and frequent; (c) to consider jurisdictions that have provisions for both constitutional and advisory referendums; (d) to consider jurisdictions that operate federalist systems, and allow for the use of referendums at both state and sub-state levels; and (e) to consider jurisdictions that were most similar to and most different from Hong Kong in terms of legal and political framework. It then considers how a referendum could occur under Hong Kong’s existing legal framework.

From there, Part III analyses the historical use of referendums in the selected jurisdictions. These analyses support Tierney’s argument that referendums can be either extremely useful tools of civic engagement and public consultation or extremely polarizing exercises that raise more questions than they answer.Footnote 4 This will often depend on a number of factors connected to how the decision to engage in a referendum occurs, how it is planned for, and how it is executed. Part III moves on to discuss these factors as lessons that might inform Hong Kong’s use of a referendum in order to deal with the critical question of universal suffrage. In doing so, it argues that the use of a referendum is both feasible, at least legally, and desirable. As such, the lessons learned from the jurisdictions scanned can be useful when considering how best to design the referendum for use in Hong Kong. This article concludes by reiterating aspects of the Hong Kong experience that have aligned with, and further contributed to, the discussion of referendums and representative democracy in constitutional theory, and recommends that the Hong Kong Government begin consultations towards the tabling of legislation for a non-binding advisory referendum in accordance with the lessons learned from the jurisdictions discussed in this article.

I. HONG KONG’S POLITICAL CLIMATE AND THE ONGOING DEBATE OVER UNIVERSAL SUFFRAGE

A. The Universal Suffrage Debate and the “Occupy Central Movement”

Hong Kong’s constitutional status changed from a British colony to a special administrative region (SAR) of China with a high degree of autonomy on 1 July 1997.Footnote 5 With regard to the election of its Chief Executive (CE), Article 45 of its constitutional document, called the Basic Law, provides that the method for selecting the CE shall be decided in light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly progress, with the ultimate aim to achieve universal suffrage of the CE upon nomination by a broadly representative nominating committee.Footnote 6 Annex I to the Basic Law stipulates indirect election of the first and second CE by an election committee.Footnote 7 In addition, it also states that the method for selecting the CE for the terms subsequent to the year 2007 can be changed if needed.Footnote 8 This last provision gave rise to the expectation that universal suffrage of the CE might happen as early as 2007. This is why in 2004 the NPCSC, which enjoys the final power of interpretation of the Basic Law,Footnote 9 interpreted Article 7 of Annex I as requiring amendment of the electoral method for the CE follow a “five-step process”.Footnote 10 Within the same month, the NPCSC made a decision in which it noted the desire of some organizations and people in Hong Kong to see universal suffrage achieved in 2007, but decided that the election of the third CE in 2007 should not be by means of universal suffrage.Footnote 11 In 2007, after receiving a report from the CE at that time, the NPCSC decided that the election of the fifth CE in 2017 may be by universal suffrage.Footnote 12

With 2017 approaching, discussion of universal suffrage of the CE started again in 2013. Chinese officials have insisted on various occasions that the election of the CE in 2017 must be consistent with the Basic Law and relevant Decisions of the NPCSC.Footnote 13 In order to pressure the Chinese and Hong Kong Governments to respond to Hong Kong peoples’ demands for democracy and universal suffrage, the three leaders of “Occupy Central with Love and Peace” (OCLP) proposed the so-called “Occupy Central Movement” (OCM). The OCM originally called for adults to occupy Central – the heart of Hong Kong’s financial district – in order to achieve universal suffrage of the CE in 2017 through unlawful non-violent civil disobedience.Footnote 14 On 4 December 2013, the Hong Kong Government started its first round of consultations on universal suffrage of the CE, which lasted five months.Footnote 15 The CE submitted a report in July 2014 to the NPCSC according to the “five-step process” laid down by the 2004 NPCSC’s Interpretation of the Basic Law.Footnote 16 OCLP started a signature campaign calling on people to express their wish to occupy Central if the NPCSC would make a decision that made genuine universal suffrage impossible and, by 23 June 2014, the campaign had collected upwards of 700,000 signatures.Footnote 17 Robert Chow, spokesman for the anti-Occupy group “Alliance for Peace and Democracy” (APD), claimed to have collected more than 1.5 million signatures against the Occupy protests.Footnote 18 After the Decision came to light in late August 2014, the Hong Kong Federation of Students (HKFS), a union of tertiary students, and Scholarism, a union of secondary school students, called on students of secondary schools and tertiary institutions to stage class boycotts, demanding, inter alia, that the NPCSC withdraw the Decision and that it endorse civil nomination as a method of nominating candidates to the CE Election in the Hong Kong Government’s second round of consultations.Footnote 19 Discontent about the Decision was also voiced by several other actors, including the OCLP leaders and the Civic Party.Footnote 20

In the early morning of 28 September 2014, OCLP leader Benny Tai announced the formal start of the OCM. In addition to requesting the NPCSC withdraw the Decision, he also demanded that the Hong Kong Government restart the constitutional reform process, including the re-submission of a report by the CE to the NPCSC that truly reflects the views of the Hong Kong people. Tai stated that if the Hong Kong Government failed to do this, the OCM would escalate.Footnote 21 The HKFS also warned that if the Hong Kong Government failed to respond to their demands before midnight, 29 September 2014, students would boycott classes indefinitely. They also threatened to call on the Hong Kong people to stage labour strikes and suspend markets.Footnote 22 On 29 September, “scores of protestors assembled in Admiralty, occupied the roads, charged Police cordon lines, and resulted in repeated large-scale scuffles with the Police. The Police used tear gas in Admiralty and Central repeatedly in an attempt to disperse the crowds”, but without success.Footnote 23 Later that day, “the unlawful occupy movement spread to Wan Chai, Mong Kok and Causeway Bay. Sections of roads in Mong Kok and Causeway Bay were thereafter illegally occupied; and the HKFS declared class boycott with no end date”.Footnote 24

Representatives of the Hong Kong Government and the HKFS met on 21 October to discuss possible ways to end the OCM, but without success.Footnote 25 From the end of October to early November, the anti-OCM group, APD, ran a petition which they claimed led to the collection of 1.8 million signatures demanding the end of the protests and the restoration of law and order, although the group and the petition’s authenticity have been called into question.Footnote 26 On 10 November, the High Court extended injunctions that authorized the clearance of protest sites.Footnote 27 The Mong Kok protest sites were cleared on 25 and 26 November, leading to scuffles and the use of pepper spray. Hundreds of people were detained by the police, including student leaders Joshua Wong and Lester Shum.Footnote 28 After violent clashes between police and protestors in Admiralty on 1 December, the OCLP members and 62 others turned themselves in.Footnote 29 By the morning of 11 December, many protesters had left the Admiralty site before it was cleared, resulting in the arrest of 209 protesters that decided to stay, including several members of the HKFS and Scholarism.Footnote 30 The final protest site at Causeway Bay was subsequently cleared with little resistance on 15 December.Footnote 31

The events described above evidence a growing public disaffection with the lack of conventional representative politics. Whether such disaffection is a factor similar to the disaffection with conventional representative politics that Tierney argues is a factor leading to the proliferation of referendums throughout the world,Footnote 32 and may also lead to the use of the referendum in Hong Kong, will be further discussed later in this article.

B. The Aftermath of the OCM and the Possible Role of the Referendum

In the aftermath of the clearing of the protest sites, the OCM leaders said that they would continue the movement’s fight by pushing lawmakers to veto the Hong Kong Government’s political reform proposal in 2015.Footnote 33 On 8 January 2015, Hong Kong began its second round of consultations on electoral reform, which lasted three months.Footnote 34 During that time, Basic Law Committee member Albert Chen advocated a “none of the above” option on the ballot during the 2017 CE election, which could serve as a veto of the candidates and thereby ensure that the elected CE would have the support of the majority of eligible voters in Hong Kong.Footnote 35 Democratic Party lawmaker Albert Ho also said that he would resign his seat after the political reform proposal was vetoed, an act that would essentially trigger a de facto referendum.Footnote 36 On 22 April 2015, the Hong Kong Government published the Consultation Report and Proposals on the Method for Selecting the Chief Executive by Universal Suffrage.Footnote 37 It decided to rely on the support of the general public and hoped the voters would put pressure on the Legislative Councillors in their constituencies to support direct election of the CE,Footnote 38 and sent its principal officials to visit different communities and attend different community functions in order to persuade the public to support its proposal for the CE election in 2017.Footnote 39 At the same time, various pan-democratic party members also openly stated that they would go directly to communities to explain why they would veto the Government’s CE election proposal.Footnote 40 In addition, three local universities decided to jointly conduct polls on a rolling basis to see whether the majority of the public were for or against the Government’s proposal.Footnote 41

It is clear from the discussion above that both the pan-democratic and pro-establishment camps had resorted to direct democracy by seeking the support of the public in Hong Kong and claiming that they represented the will of the majority of the Hong Kong people. While the Hong Kong Government claimed that its July Report to the NPCSC reflected the will of the public, the pan-democratic camp opined that the July Report distorted public opinion. The development after the OCM also shows that different sectors of society, including the pan-democrats and the Hong Kong Government, put their hopes on the public supporting their position on the question of universal suffrage in 2017. Against this background, a referendum seems to be the natural choice to determine the will of the public. But interestingly, while acknowledging the polls, neither the Government nor the pan-democratic camp is willing to make an explicit commitment to follow the majority’s opinion in any of them.Footnote 42 While acknowledging the general usefulness of referendums, the next Part turns to the issues of whether Hong Kong’s constitutional setting is suitable for a referendum in such a case and what a desirable legal setting should be.

II. DESIRABLE LEGAL SETTINGS FOR A REFERENDUM

This Part discusses the legal status of referendums in selected jurisdictions, and also gives an overview of the matters that referendums have pertained to in these jurisdictions. It does this in order to illustrate the types of issues that these jurisdictions have used referendums to debate and gauge public opinion. In doing so, it aims to find out whether Hong Kong’s current constitutional setting is suitable to hold a referendum and, if not, what such a setting might be.

A. The Legal Status of Referendums and the Matters Referendums Pertain to in Selected Jurisdictions

1. Australia

Any Parliament-proposed changes to the Constitution of Australia trigger a referendum in which voting is compulsory,Footnote 43 and which must be approved by a majority vote in a majority of States. Ordinarily, before a matter can be the subject of a referendum, both Houses of the Commonwealth Parliament must pass the proposed law containing the suggested amendment of the Constitution.Footnote 44 Moreover, the Referendum (Machinery Provisions) Act 1984 contains provisions covering all voting in referendums, including postal voting, pre-poll voting, scrutiny of a referendum, and disputed returns.Footnote 45 According to the Australian Electoral Commission, some of the matters that constitutional referendums have covered include the 1999 constitutional referendum concerned with the establishment of Australia as a republic, which is the most relevant and recent result, the 1974 referendum about a change to the mode of altering the Constitution so as to enable amendments to be made if approved by a majority of voters in half the States, the 1988 referendum on Parliamentary terms, providing for a four-year maximum term for members of both Houses; and the 1988 referendum regarding the recognition of local government in the Constitution.Footnote 46

In addition to constitutional referendums, advisory referendums (also called plebiscites) can occur. Advisory referendum can be held “to test whether people either support or oppose a proposed action on an issue”; unlike constitutional referendums, their results are not binding on the government.Footnote 47 According to Orr, there have been three advisory referendums at federal level (on military conscription in 1916 and 1917 and the national anthem in 1977) and several at the state and territory level, although details of these are “nowhere comprehensively compiled”.Footnote 48 Detailed statutory regimes are in place federally, as well as in each State and Territory except Victoria and South Australia, to provide standing regulation of plebiscites, and where there is no standing legislation, ad hoc legislation is enacted for particular referendums.Footnote 49

2. Canada

In Canada, there is a variety of legislation that relates to the use of referendums both at the federal and provincial level. For example, the Clarity Act Footnote 50 – a direct result of Quebec’s attempts to secede from Canada – enshrines into law a decision of the Supreme Court of Canada about the legal force of referendums and the requirement of clarity in referendum questions. In addition, specific federal legislation on referendums exists in the form of the Referendum Act,Footnote 51 which further enshrines referendum-specific voting principles that are also contained in the federal Canada Elections Act.Footnote 52 Moreover, the Chief Electoral Officer has the authority to make regulations by adapting the legislation pertaining to elections for the purposes of a referendum.Footnote 53 At provincial level, “[m]ost jurisdictions have separate legislation for referendums or plebiscites”.Footnote 54 Regulations can be made when a referendum is proclaimed.Footnote 55 While there is no formal approval process for the adoption of the text of the referendum question, a formal approval process does exist federally and in Quebec, where the text of the question or questions for a federal referendum must be put forward in the House of Commons and approved by both the House of Commons and the Senate.Footnote 56

In terms of subject matter, referendums at federal level can only be held on constitutional issues while plebiscites can be held on any issues of public concern.Footnote 57 At provincial level, several jurisdictions specify the subject matter of a referendum or plebiscite that may or must be held. For example, citizens in Nova Scotia may vote only on the sale of liquor, and Manitobans only to authorize the government to proceed with a tax increase or to privatize Manitoba Hydro. In Ontario, a referendum must be held to authorize an increase in the rate of provincial taxation. In Alberta and British Columbia, a referendum must be held before the respective governments may proceed with an amendment to the Constitution of Canada. Similarly, a referendum must be conducted in Yukon before its government may initiate an increase in the rate of taxation. In New Brunswick, a referendum must be held before any new tax or toll may be implemented. In all of these jurisdictions, plebiscites may be held on any issue of public concern. In all other jurisdictions, a referendum or plebiscite may be held on any issue of public concern.Footnote 58 Importantly, any referendum dealing with the separation of a province requires the federal government, under the Clarity Act, to determine that the question presented in the referendum is clear and unambiguous before entering into negotiations on secession with the province in question.Footnote 59

The results of referendums and plebiscites are not binding in about half of Canadian jurisdictions. In the other jurisdictions, the situation varies. In Nova Scotia, for example, its Liquor Corporation must respect the outcome of a plebiscite. In Ontario, Manitoba, and Yukon, their governments must respect a referendum on an increase in the taxation rate. In New Brunswick, Alberta, and British Columbia, the results of a referendum, but not a plebiscite, are binding. In Nunavut, the results of a liquor plebiscite are binding in certain circumstances. When the result is binding, the outcome must be endorsed by a simple majority in most cases. Saskatchewan is, however, an exception where a referendum or plebiscite is binding only when more than 60 percent of electors vote in favour and more than 50 percent of electors actually cast ballots.Footnote 60

The Supreme Court of Canada has previously released an opinion regarding the legality of a unilateral secession of Quebec from Canada, both under Canadian and international law.Footnote 61 The case was heard in the aftermath of the unsuccessful 1995 referendum on Quebec’s secession from Canada. Following that referendum, then-Prime Minister Jean Chretien initiated the reference to the Supreme Court. Ironically, both sides of the secession debate touted the Supreme Court’s ruling as a victory, speaking to the somewhat conflicted nature of the ruling. The Court’s finding that “[a] clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize”Footnote 62 was celebrated by secessionists and caused the Federal Government to enact the aforementioned Clarity Act. Nonetheless, the Court went on to state that:

Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession…. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.Footnote 63

According to the Supreme Court, even a clear referendum result would not technically be legally binding on the Canadian Federal Government. As the Court states:

[i]t will be for the political actors to determine what constitutes a clear majority on a clear question…. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle.Footnote 64

The Canadian case shows that its provinces retain much flexibility in deciding various issues relating to referendums and plebiscites, including the matters which should be subject to referendum and/or plebiscite, whether a referendum or plebiscite should be held, and the binding effect of a referendum and/or plebiscite, with the exception of decisions concerning the separation of a province.

3. The United Kingdom

In the UK, because of the unwritten nature of its constitution, the Scottish referendum was given its legal basis through an Act of Parliament, the Scottish Independence Referendum Act 2013 (SIRA).Footnote 65 The SIRA provides the legislative framework for a single-question referendum on Scottish independence, consisting of 37 sections that provide the broad rules to regulate the referendum and referendum campaigning.Footnote 66 As stated in the Edinburgh Agreement of October 2012,Footnote 67 both the UK and Scottish Governments agreed that the SIRA should be based on Part 7 of the UK-wide Political Parties, Elections and Referendums Act 2000 (PPERA),Footnote 68 which sets out the framework for referendums held under an Act of the UK Parliament, including financial controls, controls on publications, and overall legal rules on the conduct of referendums. Section 101 of the PPERA makes the legislation applicable to any UK referendum held under an Act of Parliament, and Section 104 requires the Electoral Commission to review the proposed referendum question, and any statement that precedes it, in order for the intelligibility of that question to be reported to the Parliament. Interested parties are then “able to submit their views on the proposed wording to the Electoral Commission as part of the Commission’s review process” and, following this, the Electoral Commission presents a report to the Scottish Parliament to which its Government can then respond.Footnote 69

The Edinburgh Agreement and the subsequent SIRA make clear that an extensive amount of consideration was given as to how the Scottish independence referendum could be undertaken in a fair and balanced manner, within the rules and regulations set out by the PPERA. As aforementioned, because of the doctrine of parliamentary sovereignty, the UK represents a different model whereby a referendum can only be held once specific “enabling” legislation is passed to give it legal authority. It is worth noting that, as a result of this same doctrine, referendums are not legally binding because no Parliament can prevent a future Parliament from amending or repealing legislation. Nonetheless, they can still place considerable political pressure on the Government to act.

4. New Zealand

The New Zealand Government can initiate both binding and indicative (non-binding) referendums. In order for a referendum to be binding, the Government must pass enabling legislation,Footnote 70 which can be enacted even if the referendum itself is non-binding. A government initiated referendum can pose more than one question, each with more than two possible answers.Footnote 71 Furthermore, legislation is required if the Government intends to hold a referendum other than by postal vote under the Referendums (Postal Voting) Act 2000.Footnote 72 It is possible for the Government to initiate a referendum pertaining to matters covered by the “reserved provisions” in Article 268(2) of the Electoral Act 1993 Footnote 73 of the New Zealand Constitution,Footnote 74 as they cannot be repealed or amended unless the proposal for amendment is either passed by a majority of 75 percent of all the members of the House of Representatives or has been carried by a majority of the valid votes cast at a poll of the electors of both the General and Maori electoral districts.Footnote 75

Citizens initiated referendums are covered under the Citizens Initiated Referendums Act,Footnote 76 which, among other things, sets out legal rules governing indicative referendum petitions, publicity, and inquiries into referendum conduct. These indicative referendums can be held on any subject, but a referendum question must have only two possible answers.Footnote 77 It first requires the introduction of a referendum proposal, which is then made into a proposal and advertised by the Clerk of the House of Representatives.Footnote 78 The proposal then must receive support from at least ten percent of registered voters, following which a petition compliance check is conducted. The Governor-General then sets a date for the referendum, after which the referendum is held and the results declared. In all cases, the results are indicative only and not binding on the Government.Footnote 79 New Zealand’s situation indicates that referendums can be initiated by either the Government or citizens, and there is no statutory requirement on matters for which compulsory referendums must be held.

5. Switzerland

A number of provisions in the Federal Constitution of the Swiss Confederation relate to the use of binding referendums at the federal, cantonal, and municipal levels. Article 136(2) enshrines the right for all Swiss citizens over the age of 18 to launch or sign popular initiatives and requests for referendums in federal matters.Footnote 80 The Constitution also provides for popular initiatives, whereby any 100,000 eligible voters may propose a complete revision of the Federal Constitution within 18 months of the official publication of their initiative.Footnote 81 If the initiative is successful and is not subsequently retracted, the amendment to the Constitution will be put to a popular vote and needs to be approved by a majority of the electorate and the cantons, although the Federal Council and the Federal Assembly may make a (usually more moderate) counter-proposal.Footnote 82 All members of the Swiss electorate, including Swiss living abroad, can launch an initiative by following a number of steps, which include forming an initiative committee of between seven and 27 people, drawing up the text of the initiative, submitting the text to the Federal Chancellery, collecting at least 100,000 signatures within an 18-month period, and having the initiative voted on once the signatures are validated.Footnote 83

Moreover, Article 140 contains the legal requirements relating to “mandatory referendums”, requiring three types of issues – amendments to the Federal Constitution, accession to organizations for collective security or to supranational communities, and emergency federal Acts that are not based on a provision of the Constitution and whose term of validity exceeds one year, which must be put to the vote within one year of being passed by the Federal Assembly – be put to a vote of the people and the Cantons.Footnote 84 Article 141 of the Constitution also provides for an “optional referendum”, the Swiss version of the advisory referendum. The optional referendum allows any 50,000 persons eligible to vote or any eight Cantons to request votes pertaining to federal Acts, emergency federal Acts whose term of validity exceeds one year, federal decrees, and international treaties that are of unlimited duration or provide for accession to an international organization.Footnote 85 In the case of mandatory referendums, any change to the law requires a double majority, i.e. a majority of the valid votes cast and a majority of the Cantons.Footnote 86 Moreover, it is also possible to launch a referendum at cantonal and communal level, which often has a greater scope than federal referendums.Footnote 87

6. California

A unique phrase “ballot measures/propositions” is used in the United States (US), which refer to “proposals to enact new laws or constitutional amendments or repeal existing laws or constitutional amendments that are placed on the ballot for approval or rejection by the electorate”.Footnote 88 Such measures can take the form of either an initiative or a referendum: an initiative refers to “a proposal of a new law or constitutional amendment that is placed on the ballot by petition, that is, by collecting signatures of a certain number of citizens”;Footnote 89 a referendum refers to “a proposal to repeal a law that was previously enacted by the legislature, and that is placed on the ballot by citizen petition”.Footnote 90 Twenty-four states in the US permit initiative and referendum processes.Footnote 91 This section examines California as an example for discussion.

The Constitution of California has a specific article (Article 2) that covers initiatives and referendums, and contains 20 related sections.Footnote 92 Article 2(8) provides for the use of initiatives, whereby the text of a proposed statute or amendment to the Constitution is signed by electors equal in number to five percent in the case of a statute, and eight percent in the case of an amendment to the Constitution. The Secretary of State then submits the measure at the next general election held at least 131 days after it qualifies.Footnote 93 Article 2(9) provides for the use of referendums, through which existing statutes can be challenged within 90 days of their enactment provided that a petition is by electors equal in number to five percent of the votes for all candidates for Governor at the last gubernatorial election. Referendums can qualify for the statewide ballot up to 31 days before an election.Footnote 94 As a result of a 2011 legislative change, initiative and referendum measures will now only appear on general elections ballots.Footnote 95 Moreover, Articles 2(10) and 2(11) contain technical legal provisions that pertain to the use of both initiatives and referendums, such as the taking effect period after successful referendums or initiatives and the requirement that the Attorney General prepare a title and summary of the measure.Footnote 96 Once on the ballot, the law is repealed if voters cast more “No” than “Yes” votes on the referendum in question.Footnote 97 Initiatives require several lengthy processes to be successfully completed, including writing the initiative measure and submitting a draft to the Attorney General along with a title and a summary, circulating petitions and gathering signatures, submitting and verifying signatures, and qualifying the initiative for the ballot.Footnote 98 If finally approved by a majority vote, an initiative takes effect the day after the election, unless the initiative itself provides otherwise.Footnote 99

7. Taiwan

The Constitution of the Republic of China (Taiwan) stipulates on the one hand that the people shall have the right of initiative and referendum at both national and local levels, and on the other that the exercise of those rights shall be prescribed by law.Footnote 100 As a result, although Taiwan’s Constitution provides for referendums, there was no actual referendum law to determine how they should be conducted until Taiwan’s Legislative Yuan passed the Referendum Act in November 2003.Footnote 101 National level referendums can be held to “reconfirm a law, to initiate a legislative principle, to initiate or confirm a major policy, or to confirm the constitutional amendments”,Footnote 102 while local level referendums are permitted on the same matters, except for constitutional amendments.Footnote 103 In contrast, no referendum can be held on budgets, taxation, investments, or wages, nor can personnel matters be proposed as referendum issues.Footnote 104 In addition, referendum matters need to be recognized by the Referendum Review Commission, which is a statutory body.Footnote 105 According to the Central Election Commission (CEC),Footnote 106 the CEC reviews the initiators’ signatures as well as the second-stage petitioners’ signatures for all non-local, nationwide referendums. Local election commissions are responsible for the polling proceedings.

The people can initiate a referendum on any matter covered by Article 2 of the Referendum Act.Footnote 107 The right of both the Legislature and Executive to initiate a referendum is, however, limited. Indeed, only the President within the Executive is entitled to launch a referendum when the nation’s sovereignty is being threatened,Footnote 108 whereas the Legislature can only initiate a referendum on important policies.Footnote 109 For a referendum to be valid, the number of initiators must reach 0.5 percent of the total number of electors in the most recent presidential election,Footnote 110 the number of endorsers must reach five percent of the total number of electors in the most recent presidential election,Footnote 111 and more than half of the qualified voters in the related constituency cast a ballot and more than half of the valid ballots are in support of the proposed measure.Footnote 112

B. Is Hong Kong’s Legal Framework Amenable to the Use of Referendums?

All of the jurisdictions scanned have various legal provisions that govern the use of referendums. In some, such as Australia and Switzerland, referendums on changes to the constitution are mandatory. In others, there is considerable confusion over whether referendum results are “binding” (Canada), and often enabling legislation is required for referendums to be held (the UK and New Zealand). In Australia, Switzerland, and California, the use of referendums has been incorporated into their Constitutions, but the New Zealand, Canada, and the UK examples illustrate that countries without constitutionally entrenched referendums can nonetheless legislate their use in order to deal with issues either “of public concern” or “of great constitutional importance”. Both mandatory and advisory referendums have been used by those jurisdictions. The current universal suffrage debate in Hong Kong certainly qualifies as an issue both “of public concern” and “of great constitutional importance”. However, the use of a referendum in Hong Kong would have to be considered in terms of its existing legal framework, in particular the Basic Law.

Tierney notes that constitutions can regulate referendums by making explicit provision for them and requiring their use in certain situations (mandatory referendums), by permitting referendums through either express provision or though silence in the constitutional text which is then interpreted permissively (discretionary referendums), or by forbidding the use of referendums entirely or through restricting them to certain issues.Footnote 113 An examination of the Basic Law suggests that Hong Kong falls into the second category. Currently, no provisions within the Basic Law specifically regulate the use of referendums in Hong Kong, nor are there provisions that either prohibit or enable the use of referendums there. As a result, an amendment to the Basic Law (for a constitutional referendum) or enabling legislation (for an advisory referendum) would be required for a constitutional or advisory referendum to be held in Hong Kong. While the former would be highly unlikely, given that Article 159 of the Basic Law vests the power to amend the Law with the Chinese national legislature, which is unlikely to allow an amendment providing for constitutional referendums,Footnote 114 an advisory referendum passed through local enabling legislation similar to what we’ve seen in some jurisdictions scanned above would neither require constitutional amendment nor be technically prohibited by any Article of the Basic Law. Thus, however unlikely its use may be, there is room for the local legislature to adopt enabling legislation to provide for an advisory referendum in Hong Kong.

In this regard, the scan of the jurisdictions above offers useful lessons for discussions of an advisory referendum in Hong Kong. The Scottish referendum provides a good example of how passing carefully drafted enabling legislation can allow a jurisdiction that has rarely used referendums to come to a result on a contentious matter of great constitutional importance. Australia and New Zealand’s legislation also speaks to the situation in Hong Kong insofar as their Governments have legislated for non-binding referendums on electoral system issues. While both Australia and Canada have also used advisory referendums in constitutional matters, the Canadian experience underscores the greatest challenge an advisory referendum would face in Hong Kong: its non-binding nature.

III. THE USE OF REFERENDUMS IN FOREIGN JURISDICTIONS AND ITS POTENTIAL USE IN HONG KONG

This Part analyses the use of referendums in several jurisdictions. It is separated into three sections. The first analyses the historical use of referendums in the selected jurisdictions in order to evince the kinds of factors that are crucial to a referendum’s success. Many of these factors coincide with what Tierney considers to be the three main criticisms of referendums: the “elite control syndrome”, whereby elites control and manipulate the organization of the referendum; the “deliberation deficit”, or the tendency of referendums to merely aggregate pre-formed wills, rather than foster meaningful deliberation; and the “majoritarian danger” that referendums consolidate the preferences of the majority at the expense of minority and individual interests.Footnote 115 Importantly, however, the scan also reveals additional factors that supplement or add to Tierney’s criticisms. After this, the second section considers both the legal and political feasibility and the desirability of the use of a referendum in Hong Kong. In doing so, it acknowledges the concerns regarding the referendum’s propensity to polarize populations, but also notes that these concerns can be alleviated through thoughtful referendum design. As such, the lessons learned from others’ experience are then considered in order to analyse how Hong Kong could and should design a referendum in order to deal with the SAR’s constitutional crisis. Finally, the third section briefly addresses some of the practical considerations concerning the use of an advisory referendum in Hong Kong.

A. The Historical Use of Referendums and Factors Pertaining toTheir Success and Utility

In all of the jurisdictions selected, the historical use of referendums reveals some cautionary lessons. Indeed, referendums have been extremely polarizing exercises at times. However, they have also shown themselves to be useful mechanisms for political change and civic engagement. In this respect, there are several lessons to be learned from these jurisdictions that could help tailor the use of referendums for the Hong Kong political context, while illustrating the important point that even well-established democracies have used referendums to supplement democracy and encapsulate the democratic ideal of government by the people.Footnote 116

i. Australia

According to the Australian Electoral Commission, only eight out of 44 proposals to amend the Constitution have been approved since Federation.Footnote 117 Of the 36 proposals that were not carried, the 1999 constitutional referendum related to the establishment of Australia as a republic is both the most relevant and the most recent. It is a referendum asking Australians to vote on two separate proposalsFootnote 118after years of widespread discussion, which led to a Constitutional Convention in 1998 followed by an extensive public consultation ahead of the referendum.Footnote 119 But while the Federal Parliament passed both proposals,Footnote 120 neither of the proposed constitutional changes was approved by the required “double majority” and, as such, were not carried.

This experience illustrates three principal difficulties with many of Australia’s referendums. First, there is a scarcity of reliable, accurate, and unbiased information about the referendum topic. Williams and Kildea have outlined what they believe to be significant failings in the ways in which the Yes/No referendum pamphlets were designed and distributed and also in which the information behind these campaigns was disseminated through politicians and the media.Footnote 121 Specifically, they argue that the Yes and No committees should be subject to external oversight and review, criticized the fact that the Yes/No pamphlets were only distributed 14 days in advance, and noted that by the time voters received the pamphlets they had likely made up their minds based on the biased opinions provided by politicians through “saturation” media coverage.Footnote 122 Secondly, there is the issue of ensuring clarity in the referendum question. Here, Luskin et al. have noted that:

[p]olls showed that fewer than 10 percent of those who voted No liked having the Queen as Australia’s head of state and that half of them, depending on how the question was worded, would have voted Yes if the proposal had been for a directly-elected president.Footnote 123

Lastly, there is a concern that the use of referendums may make the public see the issue as somehow “elitist” or politically partisan. As noted by Kildea, “[t]here is the obvious risk that citizens become marginalized to the point where what remains is a referendum process that is closed and elite-driven”.Footnote 124 These observations are in line with Tierney’s elite control syndrome criticism. They also add two additional important factors to Tierney’s framework that relate to the success or failure of referendums, that is, the clarity of the referendum question and the need for reliable and unbiased campaign information.

2. Canada

Elections Canada has noted that, historically, “issues of great importance to the nation” have been decided through referendums, including the rejection of a package of significant constitutional amendments in 1992 and the Quebec secession referendum in 1995.Footnote 125 In the 1992 Federal Referendum on the Charlottetown Constitutional Accord, 75 percent of eligible voters voted, with the accord being rejected by six provinces, and with a national vote of 54.2 percent (against) to 44.8 percent (for).Footnote 126 An agreement reached after years of intense negotiations involving Canada’s federal, provincial, territorial, and Aboriginal governments, the Accord proposed a package of amendments that would have significantly altered the then-existing political structure in Canada, including several changes to the division of powers within the federalist system, including powers with respect to the assignment of forestry, mining, natural resources, and cultural policy to the provinces, and the abolition of federal powers of reservation or disallowance, both of which allow the federal government to overrule provincial laws that have been passed.Footnote 127 It also proposed changes to several Federal institutions, including the Constitutional entrenchment of the Supreme Court of Canada and reform of the Senate so as to make senators elected in a general election rather than appointed, changes to the House of Commons so as to make the distribution of seats more in line with population in each geographical area, as well as several new rights and roles for the Aboriginal People of Canada.Footnote 128

The Accord was defeated for several reasons, including the sheer size of the package of amendments, the general public’s failure to understand the meaning or significance of the proposed amendments, and the feeling that Quebec was being given too many concessions.Footnote 129 Perhaps most significantly, the public became increasingly disenchanted with politicians whom they saw as pushing “an elite political project” in a time of tough economic recession,Footnote 130 it being argued that “advertisements, speeches and other campaign tactics were short on substance, and even at times biased and misleading”.Footnote 131 At the same time, the 1992 Referendum is also significant for the fact that it came about through a series of political decisions over the course of decades, the result, as DeBardeleben and Pammett note, of an ongoing process of nation-building and unification that started with Prime Minister Pierre Trudeau’s patriation of the Canadian Constitution (the process whereby Canada agreed on an amending formula for its Constitution that would no longer need to be approved by the British Government) in 1982.Footnote 132 The complexity and difficulty of the referendum questions are also reasons that the Charlottetown Constitutional Accord referendum failed.

While several provincial referendums have been held, none has been more significant for Canada or attracted more international attention than the two Quebec referendums on secession, held in 1980 and 1995 respectively. As noted by Guibernau, Rocher, and Adam, the 1995 Referendum on Quebec sovereignty – which resulted in an incredibly close “No” vote, with only 50.58 percent of the vote and 93.52 percent of the population voting – divided the nation and led to a continuing rift between Quebec and the rest of Canada.Footnote 133 It might be argued that the Quebec referendum is an example of Tierney’s deliberation deficit, heavily polarized between secessionists and non-secessionists. To date, the Quebec secession issue has cooled considerably. Telford observes that, “‘[t]he support for sovereignty has declined to historic lows, and there is even less appetite for another referendum”.Footnote 134 Moreover, LeDuc has argued that:

[e]xperience with such votes in a number of countries demonstrates that it is not an easy matter to persuade the public to embrace reform proposals. Like referendums on constitutional issues or international treaties, referendums on electoral reform require voters to become familiar with concepts and ideas that are not immediately familiar to them, often within the condensed time frame of a short campaign and in a milieu that is not conducive to deliberation.Footnote 135

These are very real concerns that do need to be taken seriously. The 1995 Referendum on Quebec sovereignty polarized and divided an entire nation along geographical, cultural, linguistic, and political lines, prompted new federal legislation in the form of the Clarity Act, and required a reference to the Supreme Court of Canada that resulted in a judgment so contradictory and convoluted that both sides of the debate claimed it as a victory. Thus, while the Canadian experience has again reiterated Tierney’s elite control and deliberation deficit concerns, it has also again noted that clarity of the referendum question is a crucial factor connected to a referendum’s success.

3. The United Kingdom

Although the UK analysis here will be mainly on the recent Scottish referendum, it is worth noting that 11 other referendums have been held in the UK since 1973, the great majority related to the issue of devolution.Footnote 136 Of these, the UK-wide 2011 Alternative Vote Referendum (AVR) provides an important contrast to the Scottish Independence Referendum (SIR). The AVR was introduced as part of the Parliamentary Voting System and Constituencies Bill 2010-11 of 22 July 2010, which sought to introduce the Alternative Vote System into the next election provided the move was endorsed in a referendum to be held on 5 May 2011.Footnote 137 The referendum process included close scrutiny by the Electoral Commission, which considered the intelligibility of the referendum question, ways of promoting public awareness of the referendum, and controlling the expense limits of the campaigns,Footnote 138 and eight weeks of public campaigning by both the “Yes to Fairer Votes” and the “No to AV” campaigns.Footnote 139 In addition, the Electoral Commission launched its own nationwide awareness campaign on 30 March, which included sending out 27.8 million information booklets, one to every UK household, and advertising on television and radio.Footnote 140

The AVR provides an important contrast to the SIR, particularly because of the incredibly low turnout for the AVR when compared to the SIR. Indeed, only 42 percent of those eligible chose to vote in the AVR,Footnote 141 with 67.9 percent of voters (including a majority in every region of the UK) voting against changing the electoral system from a “First Past the Post” to an “Alternative Vote” system.Footnote 142 Several reasons have been suggested for the extremely low voter turnout and for the decision to stay with the status quo, including political partisanship among the major political parties, concern over the possible costs associated with the change in the system, public disinterest and a possible view that the exercise was an “elitist” argument amongst politicians disconnected from every day citizens, and misinformation and confusion about the AV system.Footnote 143 The 2011 AVR thus raised some similar concerns to the referendums analysed in the sections on Australia and Canada. It may also extend Tierney’s concern about elite control beyond issues of actual control or manipulation to include instances which the public perceives as an elitist argument amongst politicians.

By way of contrast, the highly political nature of the SIR and an extraordinary level of public and governmental engagement resulted in a historically high 84.6 percent voter turnout, in which 55.3 percent of that electorate answered “No” to the question of “should Scotland be an independent country?”Footnote 144 But while the obvious result of the referendum is that Scotland will remain part of the UK, the work of implementing promises for increased devolution made in the Scotland Act 2012 will be ongoing.Footnote 145 While much will be written about the circumstances behind the referendum, what is clear is that it was a massive democratic exercise, the culmination of years of sustained and often polarizing political debate and public consultation. The timeline of the referendum may be thought of as starting in May 2007, after the Scottish National Party (SNP) won the largest number of seats and formed a minority government in the Scottish Parliament, launching its “National Conversation” on Scotland’s constitutional future shortly after.Footnote 146 In April 2008, the UK Government established a Commission on Scottish Devolution, with the Commission publishing its first report by year’s end.Footnote 147 The Commission’s final report was published in June 2009,Footnote 148 prompting a Scottish Government White Paper to be published in November.Footnote 149

After winning a majority of the seats in the Scottish Parliament in May 2011, the SNP continued to consult on the referendum issue, releasing its preferred question and a second consultation on a draft referendum bill in January 2012.Footnote 150 Later in the same month, the UK passed the Scotland Act 2012,Footnote 151 implementing the recommendations of the Commission on Scottish Devolution and leading to the signing of the Edinburgh Agreement, which set out the terms of a draft order under Section 30 of the Scotland Act 1998 to confer the Parliament of Scotland with the express power to authorize a referendum on independence.Footnote 152 Following numerous consultation papers by both the UK and Scottish Governments, the Scottish Independence Referendum Act 2013 was passed in December, and parties on both sides of the “Yes” and “No” campaign began publishing consultation and analysis papers, including a draft interim constitution for Scotland in June 2014.Footnote 153 By the midnight of 2 September which was the deadline for voter registration, a record 97 percent of eligible voters had registered to vote, signalling the Scottish people’s intention to be heard and perhaps prompting the heads of the three key UK political parties to sign a joint statement on 16 September promising to work together for stronger Scottish devolution and total protection for the National Health Service (NHS) should there be a “No” vote in the referendum.Footnote 154 The referendum took place on 18 September 2014, and the result announced on the following day.

Much has already been written about the Scottish referendum processes. Prominent University of Glasgow Professor Jim Gallagher has argued that, “[t]he referendum has been both divisive and energising…. Reconciliation is necessary, but can only proceed on the basis of honesty. Obligations fall on both sides – to accept the result, and to be magnanimous in victory”.Footnote 155 He further notes that the referendum campaign was a “truly extraordinary event” and was entirely unparalleled in terms of both length and political engagement.Footnote 156 Writing before the result of the referendum was known, Adam Tomkins noted that:

[o]ne advantage of the campaign being so long is that both sides have ample opportunity to explain what they consider to be the merits of their case, the demerits of their opponents’ case, and the constitutional consequences that are likely to follow whatever the outcome of the vote. The UK Government decided to satisfy the demands of the Electoral Commission by publishing a series of Scotland Analysis Papers, designed to explain as fully as possible what is at stake in the referendum.Footnote 157

As in other referendums in other jurisdictions, the question has been a principal focus of attention. For example, one basic question that arose was whether one or two questions should be certified.Footnote 158 Others, such as Matt Qvortrup, have focused on the importance of the question’s specific language, Qvortrup noting that there was considerable opposition to the Scottish Government’s original proposal of “do you agree that Scotland should be an independent country?” because the inclusion of the word agree might influence voters through the use of positive language.Footnote 159 Other issues include Tierney and Suteu’s point about the role of the legislative regimes that make provisions for referendums, which, while crucial to the fair and democratic exercise of a referendum, still depend upon “the goodwill of the two campaigns, the responsible behaviour of the media and civil society, and the effective oversight function of the Electoral Commission and others”.Footnote 160

4. New Zealand

Neither government initiated nor citizens initiated referendums have been used much in New Zealand. Since the first government initiated referendum in 1949 (on off-course betting), there have only been seven subsequent referendums of the same kind.Footnote 161 Only two of the six referendums initiated by the Government since 1950, held in 1993 and 2011, have been binding;Footnote 162 both concerned electoral system change, both derived their binding authority from express provision within the Electoral Referendum Act 1993 Footnote 163 and Electoral Referendum Act 2010,Footnote 164 and both made express provision for the electoral legislation to be brought into force in stages following the Chief Electoral Office’s declaration that the proposal in favour had been carried.Footnote 165 In contrast, the other four referendums were non-bindingFootnote 166 and “contained no provisions automatically effecting the amendments to the law should the proposals have been carried.”Footnote 167

The 1992 non-binding referendum on electoral system change is particularly useful for this article’s purposes. That referendum, governed by the Electoral Referendum Act 1991,Footnote 168 allowed “electors to indicate in principle whether they supported a change to the voting system, and which range of alternative voting options they favoured”, and was held out as “an indicative poll with no automatic legislative consequences or binding force”.Footnote 169 Parliament chose to respond to the results of the 1992 referendum by enacting legislation with binding provisions in the Electoral Referendum Act 1993 and Electoral Act 1993.Footnote 170 It is notable that the government here was able to first ascertain public preferences in a non-binding referendum,Footnote 171 and subsequently respond to those results in the form of a binding referendum.

The use of citizens initiated referendums in New Zealand has also been quite rare. Indeed, there have only been four since the first was carried out in 1995 (concerning a reduction in number of firefighters), possibly because ten percent of enrolled electors must sign a petition approved by the Clerk of the House of Representatives within 12 months of the Clerk’s approval.Footnote 172 Yet some of these changes represent fundamental reforms. For example, one citizens initiated referendum resulted in a reduction of the size of the House of Representatives from 120 to 99 members in 1999, with 81.5 percent voting “Yes” to the change.Footnote 173

Arguably, New Zealand’s most important use of both government and citizens initiated referendums has related to electoral system reform. As Hayward notes, “New Zealand’s use of referendums for electoral reform is innovative and ensures that the public, as opposed to self-interested politicians, can express their preferences”.Footnote 174 Nonetheless, Hayward acknowledges that referendums have their limitations, namely that they don’t, in and of themselves, ensure that the voting public understands and debates the issues relating to electoral reform before the referendum is held.Footnote 175 That being said, Banducci, Donovan, and Karp have observed that, “[g]reater direct citizen involvement in politics suggests that participation can lead to a more interested, engaged and informed citizenry”.Footnote 176 They further illustrate that the electoral system change brought about in 1993 was the product of growing disenchantment with political institutions and processes, noting that in 1993 only one third of the electorate agreed that they could trust government to do what was right most of the time, while another poll found that 68 percent of New Zealanders felt that the Government was largely run by a few big interests, with confidence in Parliament falling from 33 percent in 1975 to single digits by 1988.Footnote 177

5. Switzerland

Switzerland has used referendums more than any other jurisdiction in the world. According to Linder, the referendum has been a feature of the Swiss political system since 1848,Footnote 178 and even “[t]oday, on four weekends per year, the Federal Council organises a ballot, and the people vote on up to about 12 issues”.Footnote 179 Ladner also observes the historical importance of direct democracy in the Swiss political system, explaining that it is viewed as an essential part of civic life in the country.Footnote 180 In this respect, the “function” of referendums in Switzerland is quite different from what we have seen in the other jurisdictions examined so far in this Part. Whereas the function of referendums in those countries was to engage the public on matters of importance that had been widely discussed and debated over the course of several years, referendums are a much more regular instrument of governance in Swiss society. The use of initiatives and referendums is so frequent, particularly at the local level, that Ladner argues “it is impossible to give an overview of the different forms and the use of direct democracy at the local level”, noting that in the case of Zurich alone, there have been “more than 850 votes on local issues between 1934 and 2008”.Footnote 181 Linder’s scan of national referendums and popular initiatives confirms that the same is true at the federal level.Footnote 182 His conclusion is that the result of this popular policing of the state through the referendum and initiative is that “Parliament therefore is bound to be cautious in its law-making”.Footnote 183 He has also studied voters’ capability to decide on high policy and concluded that the answer depends on “the campaign and the quality of arguments offered by the political elites”.Footnote 184

6. California

California has been using initiatives and referendums since the early 1900s.Footnote 185 There have been some 79 referendums titled and summarized for circulation since 1912, many of which pertain to tax laws and other economic issues of interest to citizens,Footnote 186 with very few pertaining to electoral system reform.Footnote 187 In addition, a total of 1,828 initiatives were titled and summarized for circulation between 1912 and 2015, with 363 of those qualifying for the ballot and 123 subsequently approved by voters.Footnote 188 Of the 123 initiatives approved, 39 were constitutional amendments, including some pertaining to electoral system change.Footnote 189 These figures have led Tracy Gordon to conclude that, “Californians are more likely than the residents of any other state to exercise this power”.Footnote 190

Commentators have held different views about how referendums and initiatives are being used at the state level in California. Damore, Bowler, and Nicholson argue that, “[r]esearch on the initiative posits that interest groups often use the process to circumvent, weaken, or constrain state governing institutions”.Footnote 191 Gendzel observes that no state has made more use of direct democracy than California and expresses concern that today “most initiative sponsors make use of paid signature-gatherers to help qualify their measures for the ballot”.Footnote 192 Twomey argues that direct democracy in California is most commonly criticized for debasing the status of the Constitution as a fundamental document, for not being genuinely representative of the will of the people, and for undermining good government.Footnote 193 Nonetheless, she submits that referendums still are of great value because, “[c]onstitutional issues are brought to the forefront of political party agendas”.Footnote 194 In considering the possible merits for the application of California-style direct democracy to her home jurisdiction of Australia, Twomey makes absolutely clear that local legal and political context is a crucial consideration for any state interested in making such aspects of direct democracy part of their political system.Footnote 195

7. Taiwan

According to the CEC in Taiwan, six proposals for three nationwide referendums have been voted on since 2004. Although all of the proposals received a majority of “Yes” votes, none of them was successful because they all failed to achieve the required 50 percent quorum of voters.Footnote 196 Of the six, the first two proposals were both voted on in the first referendum and were initiated by former President Chen Shui-bian in 2004; the other four were brought forward by the people through their respective political parties in 2008 over the next two referendums.

Significantly, the issues placed before the public have caused strains in China-Taiwan relations. China’s main concern is clearly over the possible separation of Taiwan from China. For instance, in the first referendum in 2004, the fact that Chen Shui-bian would like to have an independent TaiwanFootnote 197 caused China to worry that Chen might use the referendum as an excuse to promote independence. As a result, China chose to characterize the referendum as an attempt to separate from ChinaFootnote 198 and expressed its strong objection to the referendum, calling it “a serious incident to split China”.Footnote 199 Similarly, Taiwan’s third referendum in 2008, this time on UN membership, resulted in a statement by Chinese Foreign Minister Mr. Yang equating the referendum with the promotion of Taiwanese independence and a threat to China’s sovereignty and territorial integrity.Footnote 200 In contrast, China has remained relatively silent on referendum matters unrelated to either independence or separation. This is a lesson Hong Kong can learn from Taiwan’s experience.

In addition, several other observations have been made about Taiwan’s referendums. First, all three referendums had been held together with either the Presidential or Legislative elections. Second, referendums have been used as political instruments by politicians, with some opining that individual political interests have been put above national interests in referendum matters. Third, the threshold for a referendum to pass in Taiwan is simply too high, and has resulted in the major political parties dominating the referendum process.Footnote 201

B. Feasibility, Desirability, and Lessons Learned for Hong Kong

The focus of discussion now turns to the legal and political feasibility of a referendum in Hong Kong. This is followed by a discussion of the desirability of a referendum, together with the experiences Hong Kong should learn from the seven jurisdictions previously discussed.

The political feasibility of any referendum in Hong Kong will be deeply influenced by the manner in which it comes about and, perhaps most significantly, how the Chinese Central Government reacts to it. So far, attempts to confront the issue from Hong Kong have been consistently, and heavily, criticized and resisted by both conservative elements in Hong Kong and the Chinese Central Government itself. For example, the Five Constituencies Referendum movement in 2010, in which five legislators in five election districts resigned their seats in order to trigger a by-election, received fierce criticism from officials in Beijing and Hong Kong,Footnote 202 with then Chief Executive Donald Tsang arguing that “[m]ainstream public opinion has reservations about this move” and that “[m]any see it as an abuse of the by-election mechanism and a waste of public resources”,Footnote 203 and with Chinese officials asserting that the “so-called referendum” would be a “blatant challenge” to its authority and the Basic Law.Footnote 204 Similarly, an “advisory” or “consultative” referendum suggested in October 2004 was also heavily criticized by conservatives in Hong Kong and Chinese Central Government officials, despite the fact that the referendum would not be legally binding and was designed as a consultative mechanism through which the views of the public could be gauged.Footnote 205 By the time a vote was taken on the motion in the Legislative Council in late November of 2009, “China had made abundantly clear its opposition to any form of referendum” and the motion was defeated by 31 votes to 20 votes.Footnote 206

It may therefore be optimistic to think that the same process would not occur in Hong Kong today, and it remains doubtful that the Chinese Central Government would look favourably on a consultative referendum, despite last year’s events. Moreover, there is a very real possibility that a referendum could be – indeed, already has been – attacked as a costly and politically opportunistic measure that would hold no real binding force on either Hong Kong or Chinese Central Government.Footnote 207 Nonetheless, the events described in Part II above suggest Hong Kong constitutes a variation to Tierney’s argument that “citizens increasingly look to new and often direct forms of political engagement to compensate for the perceived democratic failings of traditional constitutional models”,Footnote 208 with the OCM and its aftermath representing the Hong Kong people’s effort to resort to direct forms of political engagement to achieve genuine universal suffrage, rather than to supplement or supplant traditional constitutional models. It therefore may be in the Chinese Central Government’s best interests to convert such unregulated forms of political engagement into a more well-recognized form of referendum, even if only advisory. Further, both the Hong Kong Government and the pan-democratic camp have tried to boost their arguments either for or against the proposal for the CE election in 2017 by referring to various polling results. Given that polls have their deviations and may not be an accurate reflection of the public’s will, it is better to have an advisory referendum through which the accuracy can be guaranteed.

The legal feasibility of any type of proposed referendum would have to stem from enabling legislation, as there is currently no mechanism under Hong Kong’s existing constitutional framework that regulates the use of referendums. As noted in Part II.B. above, it is unlikely that a binding constitutional referendum would be legally feasible under the Basic Law. This leads to the principal argument against the referendum, which is, as Ghai observes, that it is unconstitutional (i.e. against both the Basic Law and the Chinese Constitution).Footnote 209 The justifications given for this argument are twofold – that the referendum would go against either the procedure for the amendment of the Basic Law or the electoral provisions set out in the Basic Law, and that the Basic Law has not provided for a referendum of any kind.Footnote 210 However, it does not appear as though a non-binding, consultative referendum would actually contravene any Articles of the Basic Law. Ghai also makes this argument, submitting that:

[i]n fact, the referendum was to be no part of a formal decision-making process. In that sense it did not detract from the Basic Law. But it would provide arguments and evidence that could assist in decision making… It was not to usurp the functions of any state institutions.Footnote 211

It follows that it is therefore legally feasible for the Hong Kong Government to enact local legislation to provide for advisory referendum. The key issue, then, is such a non-binding referendum would rely on the Hong Kong and Chinese Central Governments’ political will to act. While the above assessment of the current political feasibility of such a proposal casts doubt on this will, a well-designed referendum in line with the lessons learned from the jurisdictions discussed below with a definitive result might change this state of affairs.

It is also fair to argue that Hong Kong’s civil society exhibits similar characteristics to several of the jurisdictions studied here, making the use of referendums desirable. First, the experience of referendum use in Australia, Canada, the UK, and New Zealand all demonstrate that referendums have been able to foster debate on issues of great importance that have been the topic of widespread public debate and consultation for a number of years. Advisory referendums in these jurisdictions also occurred through the use of enabling legislation rather than through some pre-existing constitutional requirement mandating their use. This sounds very similar to the current experience in Hong Kong and, as such, it is fair to argue that the use of referendum is desirable in this context. Secondly, experiences like New Zealand’s also show how a government can use an advisory referendum to ascertain public preferences in a non-binding referendum before choosing whether or not to respond to the results with a binding referendum or subsequent legislation. Similarly, Canada’s referendum on the Charlottetown Constitutional Accord took place not as the result of any legal requirement that it should occur, while the Quebec referendum occurred as a direct result of years of civil society engagement. Relatedly, while no similar legal requirement exists in Hong Kong, Canada’s experience shows the power that the momentum building up in Hong Kong in regards to universal suffrage could have.

Thirdly, the successful proliferation of referendums like New Zealand’s electoral reform referendum in 1993Footnote 212 has been linked to increasing disaffection among voters towards conventional representative politics.Footnote 213 To be sure, similar disenchantment exists in Hong Kong today, especially given the estimates that 1.2 million people took part in the OCM protests.Footnote 214 Hong Kong, however, also deviates from these patterns in that Hong Kong’s disaffection has been with the lack of universal suffrage. This last point suggests that it is likely in China’s best interest to encourage consultations in order to diffuse some of the OCM’s momentum. Indeed, Hong Kong purports to have a fairly stable rule of law system, and there is a good case that an advisory referendum in Hong Kong would by no means supplant the Chinese Central Government’s authority, but would rather provide an opportunity for Hong Kong’s young democracy to develop and to be supplemented in a useful way. As in the UK’s SIR and AVR, there has been widespread public discussion about the universal suffrage issue in Hong Kong for a number of years now. A referendum on the issue would give an already engaged civil society an appropriate platform through which it could express its opinion. While further public education and consultation would certainly be needed, the extensive campaign behind the SIR provides a good roadmap for designing a similarly “successful” referendum on the universal suffrage question. Lastly, unlike the Charlottetown Constitutional Accord Referendum in Canada, which dealt with a multitude of issues and a package of several constitutional amendments, a Hong Kong referendum on universal suffrage would benefit from the focus on a single referendum issue, thus increasing its desirability.

In short, a referendum for Hong Kong on universal suffrage is desirable because all of the major pre-conditions (civil society engagement, widespread public discussion, single issue, etc.) are present. Critics of a referendum might (fairly) point to the real concerns of polarization that academics have noted. The reality is that Hong Kong has already become highly polarized since the OCM. Furthermore, the present political situation in Hong Kong has, as Albert Chen has opined, reached perhaps “its most difficult time since its reunification with the motherland”.Footnote 215 The political situation in Hong Kong has become so untenable that prominent legal scholars are actively (and with much support) encouraging the casting of blank votes.Footnote 216 It is thus submitted that regardless of the risks inherent in the exercise of a referendum, feasible alternatives may carry similar risks and, as such, the referendum could still be a desirable mechanism. Moreover, given that both the pan-democratic and pro-establishment camps have already resorted to direct democracy through signature campaigns and both claim they represent the majority of Hong Kong people, a referendum is desirable as it can definitively settle their argument on which side actually has the support of the majority of Hong Kong people.

If a referendum for Hong Kong is both desirable and feasible (at least legally), then focus must turn to how the referendum could be best designed in line with the lessons learned from the jurisdictions in this study, in order to mitigate against the inevitable risks of polarization that referendums carry. Hong Kong would necessarily have to design its referendum to take into account various lessons learned from Australia, Canada, the UK, New Zealand, Switzerland, California, and Taiwan. Thus, any referendum should be based on a clearly and concisely worded question or questions after extensive public consultation and debate, bolstered by fair and regulated public education campaigns to ensure that information disseminated to the public is unbiased and freely available, and based on concerns that originate from the public domain, so as to mitigate the risk that the public views the referendum as an exercise of “political elitism”; its campaign finance needs to be closely monitored, in order to mitigate the occurrence of uneven funding that has been witnessed in the California case study; and it must be taken up by all of society’s stakeholders in order to ensure that all voices are heard and mitigate against the inevitably polarizing effects of referendums.

Perhaps the most important of all of the lessons learned from this study is the need for extensive public education and consultation on any referendum campaigns. These campaigns would need to be monitored effectively by some form of oversight mechanism, e.g. the Election Commission, in order to ensure a level playing field for all interested parties. Additionally, the clarity of the referendum question would be a crucial consideration for Hong Kong’s use of referendum, as an ambiguous or unclear referendum question would readily be attacked as lacking legitimacy. This is currently a problem, as disputes exist on whether the proposal by the Hong Kong Government on the CE election in 2017 provides for genuine universal suffrage or not. The referendum (and the public education campaign behind it) would have to be framed as an organic extension of the political will of the Hong Kong people, rather than an exercise in “political elitism” by elected leaders disconnected from the day to day realities of the people. While critics might argue that it is wishful thinking that these things could occur in Hong Kong, several countries surveyed here have managed to successfully use referendum as a means to gauge public opinion on matters of great constitutional importance. Granted, experiences in each jurisdiction have flagged up issues and concerns that invariably come with the use of referendum in any jurisdiction. If Hong Kong can learn from the lessons of these jurisdictions, and overcome the political obstacles to the use of a referendum, it may be able to take a large step forward in resolving its current constitutional crisis.

C. Practical Considerations

Given what has been argued above, it is clear that there are certain practical considerations that need to be taken into account in order for the successful administration of a non-binding advisory referendum in Hong Kong. These include considerations pertaining to the passing of legislation for such a referendum, including who will introduce the legislation, the value added by a referendum, particularly if it is likely to be ignored by the NPCSC, any institutional considerations, including who will help to carry out the referendum, as well as those pertaining to the design and implementation of the referendum, particularly in regards to the design of the referendum question and the carrying out of the public information and education campaign.

With regards to passing the necessary legislation, such a task is most likely to be “relating to public expenditure or political structure or the operation of the government” and/or “relating to government policies”.Footnote 217 As such, it can only be introduced by the Hong Kong Government with written consent of the CE, according to Article 74 of the Basic Law.Footnote 218 Under Annex II of the Basic Law, a bill introduced by the Government requires “a simple majority vote of the members of the Legislative Council present”.Footnote 219 However, any amendment to a government bill introduced by an individual member requires a simple majority vote of both members returned by functional constituencies and those returned by geographical constituencies through direct elections.Footnote 220 Given that the pro-establishment camp occupies the majority seats of the Legislative Council, the existence of political will on the part of the CE and the pro-establishment camp is the key to the successful passing of referendum legislation. At the moment, such political will does not exist and it will be difficult (although not impossible) to convince the CE and the pro-establishment camp that referendum legislation is in their best long-term interest and in the best interest of Hong Kong.

With regards to the value added by an advisory referendum it stems from the fact that it will provide an official source through which the Hong Kong people can voice their opinions. As noted in Part I.B., while some measures have been used to gauge public opinion on the issue, none carries the legitimacy that would attach to a referendum run by the Hong Kong Government, supported by an extensive public education and consultation campaign. As noted above, the challenge here is that China’s opposition to any form of referendum represents a serious obstacle to the introduction of a non-binding advisory referendum and may lead the NPCSC to disapprove local legislation introducing such a referendum. The authors of this paper fully understand the difficulty facing the introduction of non-binding advisory referendums in Hong Kong, and acknowledge that careful strategy needs to be worked out for that purpose. Nonetheless, the existence of such practical difficulties in no way denies the value and feasibility of the introduction of a non-binding advisory referendum in Hong Kong.

With regards to institutional issues and referendum design, the Electoral Affairs Commission (EAC) established under the Electoral Affairs Commission Ordinance (EACO) can be assigned as the body in charge of such a referendum. The EAC is an independent, impartial, and apolitical body established to ensure open, fair, and honest elections in Hong Kong similar to the UK’s Electoral Commission and the CEC in Taiwan. As such, putting the EAC in charge of such a referendum would be a useful way to alleviate these practical concerns. As noted above in Parts II.A.3. and III.A.3., the UK Electoral Commission engaged in extensive consultation work in the run-up to the SIR, both in regards to the design of the referendum question and the carrying out of the public information and education campaign. Given its historical roots to the UK, it is not unfair to argue that Hong Kong could transplant some of the practices of the Electoral Commission. In particular, some of the aforementioned rules stated in the PPERA, which sets out the framework for referendums held under an Act of the UK Parliament, including financial controls, controls on publications, and overall legal rules on the conduct of referendums would be useful for the EAC to take into account. As is the case with the UK Electoral Commission, the EAC can be assigned the responsibility to regulate finance and standards relating to referendums.Footnote 221 The allocation of such tasks to the EAC could be mandated either by the same enabling legislation that provides for the use of the non-binding advisory referendum itself or the amendment of the EACO. Similar to the UK Electoral Commission, the EAC could accept multiple submissions pertaining to the potential wording of the referendum question and could oversee and regulate the public education campaign.

IV. Conclusion

This article has applied Tierney’s theory to the possibility of the use of a referendum to address questions about universal suffrage in Hong Kong. In return, analysis has allowed for some contributions to the theoretical debate on referendums and representative democracy. Firstly, discussion in Part III has not only reinforced Tierney’s three main criticisms of referendums, but also enriched Tierney’s argument by identifying the clarity of the referendum question and the availability of unbiased and reliable campaign information as additional factors crucial to any referendum’s success. Secondly, the scan of the historical use of referendums in other jurisdictions in Part III has lent support to Tierney’s argument that one of the main reasons for the proliferation of referendums is that citizens have increasingly looked to new and more direct forms of political engagement in order to compensate for the perceived democratic failings of traditional constitutional models. Thirdly, Hong Kong provides an interesting case study which further develops Tierney’s theory. In addition to supplementing and supplanting traditional representative models of government, referendums can also help develop representative democracy where it is lacking. Lastly, Tierney has noted that the proliferation of referendums is mainly the result of the use of referendums by international institutions in post-conflict intervention, the growth in the number of constitutions that now mandate their use, and the increased application of ad hoc or discretionary referendums where the constitution does not require their use.Footnote 222 This article has illustrated that nothing legally prevents Hong Kong from acting within the third category and, as a result, has engaged in a practical analysis of the feasibility and desirability of referendum use to deal with its current constitutional crisis.

Despite some concerns, this article argues that Hong Kong should seriously consider using an advisory referendum as a means to work towards resolving the question of universal suffrage. To be sure, such a referendum would be both feasible and desirable (at least legally). The main obstacles to the potential use of a referendum in Hong Kong are thus primarily political, and would require support from both the Hong Kong and Chinese Central Governments in order to have any real impact. Although this article has noted real reasons to doubt the political feasibility of a referendum in Hong Kong, the political weight of an advisory referendum would be bolstered by a clear and definitive outcome from a carefully developed and administered referendum. Indeed, far from supplanting the authority of the Chinese Central Government, we have noted several reasons why the referendum could only serve as a tool to usefully cultivate Hong Kong’s young and evolving representative democracy.

This article has also highlighted some important lessons learned from a number of jurisdictions that would need to be taken into account in a Hong Kong referendum. In particular, the need for clear, reliable, and unbiased information becomes particularly acute in multicultural and multilingual societies such as Hong Kong, and any official bodies with the authority to disseminate information on a potential Hong Kong referendum would need to be subject to this same external oversight. This risk would be particularly important to mitigate in Hong Kong, where the universal suffrage debate has already raised questions about elite control over politics and the closed nature of political processes. As a result of the analyses engaged in throughout this article, it is recommended that the Hong Kong Government begin consultations towards the tabling of legislation for an advisory referendum to be developed in accordance with the lessons learned from other jurisdictions discussed throughout this article. If properly designed and used, such a referendum would provide a meaningful and useful mechanism through which matters of great constitutional importance can be debated and resolved.

Footnotes

*

Professor of Law, Associate Dean, Director of Centre for Chinese and Comparative Law, School of Law, City University of Hong Kong; barrister, Hong Kong; member, Law Reform Commission of Hong Kong; Co-Editor-in-Chief, Asia Pacific Law Review.

**

Hon. B.A., M.A. (Toronto); LL.M. (Osgoode); D.Phil. (Oxon.). Assistant Professor, Department of Criminology, Ryerson University, Toronto, Ontario, Canada. The authors would like to thank the anonymous reviewer for his valuable and constructive comments.

1. The NPCSC is one of the two national legislative bodies in China and enjoys the final interpretative power of national laws in China under art. 67 of the Constitution of the People’s Republic of China.

2. Standing Committee of the National People’s Congress, Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive in Hong Kong of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 (31 August 2014), online: 2017.gov.hk <http://www.2017.gov.hk/filemanager/template/en/doc/20140831b.pdf>.

3. TIERNEY, Stephen, Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford: Oxford University Press, 2012).

4. Ibid. at 23.

5. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, 19 December 1984.

6. The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, art. 45, para. 2 [Basic Law].

7. Ibid., Annex I.

8. Ibid., Annex I, art. 7.

9. Ibid., art. 158.

10. Standing Committee of the National People’s Congress, The Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (6 April 2004), online: basiclaw.gov.hk <http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc18.pdf>.

11. Standing Committee of the National People’s Congress, Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in the Year 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2008 (26 April 2004), online: basiclaw.gov.hk <http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc19.pdf>.

12. Standing Committee of the National People’s Congress, Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage (29 December 2007), online: basiclaw.gov.hk <http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc21.pdf>.

13. LAM, Jeffie, “Xi Jinping Urges Hongkongers to Show Pragmatism on Political Reform” South China Morning Post (18 December 2013), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1385154/xi-jinping-urges-hong-kong-build-consensus-over-2017-election>.

14. The South China Morning Post provides free access to comprehensive information about the OCM on its website, online: South China Morning Post <http://www.scmp.com/topics/occupy-central>.

15. “Hong Kong Chief Secretary Carrie Lam, On the Record: Work Together to Achieve Universal Suffrage” HKSAR Government Press Release (7 January 2015), online: news.gov.hk <http://www.news.gov.hk/en/record/html/2015/01/20150107_122445.lin.shtml>.

16. Hong Kong SAR Government, Report on the Public Consultation on the Methods for Selecting the Chief Executive in 2017 and for Forming the Legislative Council in 2016 (July 2014), online: 2017.gov.hk <http://www.2017.gov.hk/filemanager/template/en/doc/report/consultation_report.pdf>.

17. KHAN, Natasha and HU, Fox, “Hong Kong’s ‘Illegal’ Democracy Poll Draws 700,000 Voters” Bloomberg Business (23 June 2014), online: Bloomberg Business <http://www.bloomberg.com/news/articles/2014-06-22/hong-kong-democracy-poll-draws-one-in-five-voters-by-day-three>.

18. AKINYEMI, Aaron, “Thousands Stage Anti-Occupy Protest in Hong Kong” International Business Times (17 August 2014), online: International Business Times <http://www.ibtimes.co.uk/hundreds-stage-anti-occupy-protest-hong-kong-1461479>.

19. LIU, Juliana, “Thousands of Hong Kong Students Start Week-Long Boycott” BBC News (22 September 2014), online: BBC News <http://www.bbc.com/news/world-asia-china-29306128>.

20. LAM, Jeffie and ZHAO, Shirley, “‘We Won’t Halt Occupy Central’: Benny Tai Says Era of Civil Disobedience Is Here to Stay” South China Morning Post (4 September 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1584360/we-wont-stop-occupy-central-benny-tai-says-era-civil-disobedience>; NG, Joyce, SO, Peter, CHEUNG, and Gary, “Pan-Democratic Parties Threaten to Boycott Electoral Reform Consultation” South China Morning Post (6 September 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1586253/pan-democratic-parties-threaten-boycott-electoral-reform-consultation>.

21. SUNG, Timmy, KAO, Ernest, CHEUNG, and Tony, “Occupy Central Is On: Benny Tai Rides Wave of Student Protest to Launch Movement” South China Morning Post (28 September 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1601625/hong-kong-students-beat-us-it-benny-tai-declares-start-occupy-central?page=all>.

22. “Xuelian yu Bagong, Wuxianqi Tingke (學聯籲罷工 無限期停課) [HKFS Calls for Labour Strike and Indefinite Suspension of Class]” Dushi Ribao(都市日報) [Metro Daily] (29 September 2014) at P08.

23. Hong Kong SAR Government, Report on the Recent Community and Political Situation in Hong Kong (January 2013), online: 2017.gov.hk <http://www.2017.gov.hk/filemanager/template/en/doc/rcps_report/rcps_report.pdf at para. 2.10>.

24. Ibid. at para. 2.11.

25. Staff Reporters, “OCCUPY CENTRAL – THE DEBATE: Full Coverage of the Student-Government Talks” South China Morning Post (21 October 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1621141/live-hong-kong-students-prepare-meet-government-officials-democracy?page=all>.

26. HUI, Echo, “Foes of Hong Kong Democracy Protests Claim Petition Drive Success” Los Angeles Times (3 November 2014), online: Los Angeles Times <http://www.latimes.com/world/asia/la-fg-hong-kong-protest-foes-20141103-story.html>.

27. Associated Press, “Hong Kong Protesters Face Arrest After Court Rules on Evictions” The Guardian (11 November 2014), online: The Guardian <http://www.theguardian.com/world/2014/nov/11/hong-kong-protesters-face-arrest-court-ruling>.

28. BRANIGAN, Tania, “Hong Kong Student Leaders Arrested as Police Try to Clear Protest Zone” The Guardian (26 November 2014), online: The Guardian <http://www.theguardian.com/world/2014/nov/26/hong-kong-student-leaders-arrested-police-attempt-clear-protest-zone>.

29. CHEUNG, Tony and SUNG, Timmy, “Police Let Occupy Organisers Walk Away Without Charge After They Turn Themselves In” South China Morning Post (3 December 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1654634/no-regrets-says-occupys-benny-tai-he-prepares-hand-himself-police?page=all>.

30. SUDWORTH, John, “Hong Kong Protests: Arrests as Admiralty Site Is Cleared” BBC News (11 December 2014), online: BBC News <http://www.bbc.com/news/world-asia-china-30426346>.

31. KWOK, Donny, “Hong Kong Police Clear Last Pro-Democracy Protest Site” Reuters (15 December 2014), online: Reuters <http://www.reuters.com/article/2014/12/15/us-hongkong-china-idUSKBN0JT07020141215>.

32. Tierney, supra note 3 at 8.

33. NG, Joyce, “Occupy Central Founders Vow to Keep Fighting for Democracy in Hong Kong” South China Morning Post (18 December 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/664640/occupy-founders-next-step-ensuring-cy-leungs-election-reform-package?page=all>.

34. Staff Reporters, “Hong Kong Begins Second Consultation on Electoral Reform” South China Morning Post (7 January 2015), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1675987/pan-democrats-hoist-umbrellas-carrie-lam-announces-new-political?page=all> [Staff Reporters, “Second Consultation”].

35. LAU, Stuart, “Basic Law Expert Albert Chen Tries to Steer Middle Road on Reform for Hong Kong Chief Executive Election” South China Morning Post (26 January 2015), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1691393/basic-law-expert-albert-chen-tries-steer-middle-road-reform-hong-kong>.

36. LAU, Kenneth, “Ho Spells Out when He Will Resign” The Standard (12 January 2015), online: The Standard <http://www.thestandard.com.hk/news_detail.asp?pp_cat=11&art_id=153108&sid=43672009&con_type=1>.

37. Hong Kong SAR Government, Method for Selecting the Chief Executive by Universal Suffrage: Consultation Report and Proposals (22 April 2015), online: 2017.gov.hk <http://www.2017.gov.hk/filemanager/template/en/doc/report_2nd/consultation_report_2nd.pdf>.

38. Staff Reporters, “Second Consultation”, supra note 34.

39. CHEUNG, Tony and Ying-Kit, LAI, “Carrie Lam Says Reform Package Is no Endgame for Hong Kong Democracy” South China Morning Post (30 April 2015), online: South China Morning Post <http://www.scmp.com/news/hong-kong/politics/article/1781643/carrie-lam-says-reform-package-no-endgame-hong-kong>.

40. Ibid.

41. LUK, Eddie, “Massive Poll to Check Views on Reform Plan” The Standard (22 April 2015), online: The Standard <http://www.thestandard.com.hk/news_detail.asp?we_cat=4&art_id=156318&sid=44310291&con_type=1&d_str=20150422&fc=4>.

42. LIU, Louis, “CE Cautions People About Polls” China Daily (13 May 2015), online: China Daily Asia <http://www.chinadailyasia.com/hknews/2015-05/13/content_15263076.html>.

43. Commonwealth of Australia Constitution Act, s. 128.

44. Ibid.

45. Referendum (Machinery Provisions) Act 1984 (Austl).

46. Australian Electoral Commission, “Referendum Dates and Results”, online: Australian Electoral Commission <http://www.aec.gov.au/elections/referendums/Referendum_Dates_and_Results.htm> (updated 24 October 2012) [Australian Electoral Commission, “Referendum Dates and Results”].

47. Australian Electoral Commission, “What Are Referendums and Plebiscites?”, online: Australian Electoral Commission <http://www.aec.gov.au/elections/referendums/types.htm> (updated 9 September 2015).

48. ORR, Graeme, “The Conduct of Referenda and Plebiscites in Australia: A Legal Perspective” (2000) 11 Public Law Review 117 at 119.

49. Ibid. at 122. See e.g. Referendum (Machinery Provisions) Act 1984 (Austl); Referendums Act 1997 (Qld); Referendum (Machinery Provisions) Act 1994 (ACT).

50. Clarity Act, SC 2000, c. 26.

51. Referendum Act, SC 1992, c. 30.

52. Canada Elections Act, SC 2000, c. 9.

53. Elections Canada, “Referendums in Canada”, online: Elections Canada <http://www.elections.ca/res/eim/article_search/article.asp?id=87&lang=e&frmPageSize> [Elections Canada, “Referendums”].

54. Elections Canada,Compendium of Election Administration in Canada: A Comparative Overview (As of June 27, 2012) (2012) at 103, online: Elections Canada <http://www.elections.ca/res/loi/com/arc/com2012/compoverview2012jun_e.pdf> [Elections Canada, Compendium].

55. Elections Canada, “Referendums”, supra note 53.

56. Ibid.

57. Elections Canada, Compendium, supra note 54 at 103.

58. Ibid. at 103.

59. Ibid. at 103-104.

60. Ibid.

61. Reference re Secession of Quebec, [1998] 2 SCR 217.

62. Ibid. at 220.

63. Ibid. at 221.

64. Ibid.

65. Scottish Independence Referendum Act, 2013 (UK), asp 14 [SIRA]. While analysis here focuses on the Scottish referendum, it should be noted that only two UK-wide referendums have ever been held (the 1975 UK European Communities Membership Referendum and the 2011 UK Alternative Vote Referendum). These referendums were regulated by two pieces of legislation: UK Referendum Act, 1975 (UK) and Parliamentary Voting System and Constituencies Act, 2011 (UK), c. 1.

66. UK Government, Scottish Independence Referendum Act 2013: Explanatory Notes (2013), online: legislation.gov.uk <http://www.legislation.gov.uk/asp/2013/14/notes/data.pdf>.

67. HM Government/Scottish Government, Agreement between the United Kingdom Government and the Scottish Government on a Referendum on Independence for Scotland, 15 October 2012, online: The Scottish Government <http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence> [Edinburgh Agreement].

68. Political Parties, Elections and Referendums Act, 2000 (UK), c. 41 [PPERA].

69. Edinburgh Agreement, supra note 67.

70. New Zealand Electoral Commission, “Referenda”, online: New Zealand Electoral Commission <http://www.elections.org.nz/voting-system/referenda>.

71. Ibid.

72. Ibid.

73. Electoral Act 1993 (NZ), art. 268(2).

74. Its Constitution is not entrenched.

75. Electoral Act 1993 (NZ), art. 268(2).

76. Citizens Initiated Referenda Act 1993 (NZ).

77. New Zealand Electoral Commission, supra note 70.

78. New Zealand Parliament, “Citizens Initiated Referenda”, online: New Zealand Parliament <http://www.parliament.nz/en-nz/about-parliament/get-involved/referendum/summary/00CLOOC_ReferendumProposals_1/citizens-initiated-referenda>. The Act allows 28 days for submissions and three months in total for the determination of the final wording of the question.

79. Ibid.

80. Constitution fédérale (18 April 1999), RO 101, art. 136(2).

81. Ibid., art. 138(1).

82. Swiss Authorities Online, “Popular Initiatives”, online: Swiss Authorities Online <http://www.ch.ch/en/popular-initiatives>.

83. Ibid.

84. Constitution fédérale ,supra note 80, art. 140(1).

85. Ibid., art. 141.

86. Ibid.

87. Ibid.

88. Initiative and Referendum Institute, University of Southern California, “What Are Ballot Propositions, Initiatives, and Referendums?”, online: Initiative and Referendum Institute, University of Southern California <http://www.iandrinstitute.org/Quick%20Fact%20-%20What%20is%20I&R.htm#Popular_referendum>.

89. Ibid.

90. Ibid.

91. Ibid.

92. Constitution of California, art. II, s. 1.

93. Ibid. art. II, § 8.

94. Ibid.

95. California Secretary of State, “Referendum”, online: California Secretary of State <https://www.sos.ca.gov/elections/ballot-measures/referenda.htm> [California Secretary of State, “Referendum”].

96. Constitution of California, supra note 92, art. II, § 10-11.

97. California Secretary of State, “Referendum”, supra note 95.

98. California Secretary of State, “Statewide Initiative Guide”, online: California Secretary of State <http://www.sos.ca.gov/elections/ballot-measures/how-qualify-initiative/initiative-guide/>, which extensively details each procedure that needs to be followed at every step of the process.

99. Ibid.

100. Constitution of the Republic of China (Taiwan), arts. 17, 123, and 136, online: Laws and Regulations Database of The Republic of China <http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=A0000001>.

101. KAO, Milly Ming-Tzu, “The Referendum Phenomenon in Taiwan – Solidification of Taiwan Consciousness?” (2004) XLV(4) Asian Survey 591.

102. LIN, Jih-wen, “Taiwan’s Referendum Act and the Stability of the Status Quo” (2004) 40(2) Issues & Studies 16-17. Referendum Act, art. 2, online: Laws and Regulations Database of The Republic of China <http://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?PCode=D0020050>.

103. Ibid.

104. Referendum Act, art. 2, para. 3.

105. Referendum Act, art. 2, para. 4.

106. Detailed information about the CEC can be found in its website, online: Central Election Commission <http://engweb.cec.gov.tw/files/11-1030-3863.php>.

107. Lin, supra note 102.

108. Ibid.

109. Referendum Act, art. 16.

110. Ibid., art. 10.

111. Ibid., art. 12.

112. Ibid., art. 30. See also Lin, supra note 102.

113. Tierney, supra note 3 at 104.

114. See Part III.B. below for a discussion of the political feasibility of referenda in Hong Kong.

115. Tierney, supra note 3 at 23.

116. As such, it follows Tierney’s observation that direct democracy can supplement and sometimes supplant representative democracy. Ibid. at 1.

117. Australian Electoral Commission, “Referendum Dates and Results”, supra note 46.

118. The first, the Constitution Alteration (Establishment of Republic) 1999, would have amended the Constitution to create a republic, and replaced the Queen and Governor-General with a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. The second, the Constitution Alteration (Preamble) 1999, proposed to alter the Constitution by inserting provisions into the preamble. Australian Electoral Commission, “1999 Referendum Report and Statistics”, online: Australian Electoral Commission <http://www.aec.gov.au/elections/referendums/1999_Referendum_Reports_Statistics/> (updated 24 October 2012).

119. Ibid.

120. Constitution Alteration (Establishment of Republic) Bill 1999 (Austl). Constitution Alteration (Preamble) Bill 1999 (Austl).

121. KILDEA, Paul and WILLIAMS, George, “Reworking Australia’s Referendum Machinery” (2010) 35(1) Alternative Law Journal 6 at 22-26. Kildea and Williams argue that any information pamphlet needs to be supplemented by other methods of communicating information to voters.

122. Ibid. at 23-24.

123. LUSKIN, Robertet al., “Deliberation and Referendum Voting”, online: CiteSeerX <http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=F89D8C07FA5C1757A2D5290F3605002A?doi=10.1.1.176.7024&rep=rep1&type=pdf>.

124. KILDEA, Paul, “Worth Talking About? Modest Constitutional Amendment and Citizen Deliberation in Australia” (2013) 12(4) Election Law Journal 524 at 537.

125. Elections Canada, “Referendums”, supra note 53.

126. The Canadian Encyclopedia, “Referendum”, online: The Canadian Encyclopaedia <http://www.thecanadianencyclopedia.com/en/article/referendum/>.

127. Pierre Marquis, Referendums in Canada: The Effect of Populist Decision-Making on Representative Democracy, Background Paper BP-328E (Ottawa: Library of Parliament, August 1993), online: Government of Canada Publications <http://open.canada.ca/vl/en/doc/publications-301933>.

128. Ibid.

129. Ibid. at 3.

130. Ibid.

131. Ibid. at 15.

132. DEBARDELEBEN, Joan and PAMMETT, Jon, Activating the Citizen: Dilemmas of Participation in Europe and Canada (Basingstoke: Palgrave Macmillan, 2009) at 234.

133. GUIBERNAU, Montserrat, ROCHER, Francois, and ADAM, Elisenda Casanas, “Introduction: A Special Section on Self-Determination and the Use of Referendums: Catalonia, Quebec and Scotland” (2014) 27 International Journal of Politics, Culture, and Society 1 at 1-2.

134. TELFORD, Hamish, “The Province that Cried Wolf: Quebec and the Future of Canada” (2013) 102 The Round Table: The Commonwealth Journal of International Affairs 97 at 98.

135. LEDUC, Lawrence, “Electoral Reform and Direct Democracy in Canada: When Citizens Become Involved” (2011) 34(3) West European Politics 551 at 552.

136. UK Parliament, “Referendums Held in the UK”, online: UK Parliament <http://www.parliament.uk/get-involved/elections/referendums-held-in-the-uk/>.

137. Ibid.; UK, HC, “AV and Electoral Reform”, Standard Note: SN/PC/05317 (12 July 2011) at 3, online: UK Parliament <http://researchbriefings.files.parliament.uk/documents/SN05317/SN05317.pdf>.

138. Ibid. at 4.

139. Ibid. at 14. The key arguments forwarded by the “No” campaign were that AV was costly, complex, and unfair, and would result in more hung Parliaments and backroom dealings, while the “Yes” campaign argued that the AV system would target the complacency of “career politicians”, give voters a bigger say in who their local member of Parliament (MP) was by allowing them to rank favourites in order, and would lead to more MPs being elected with more than 50 percent of the vote. Ibid. at 16.

140. Ibid. at 15.

141. Ibid.

142. UK, HC, “Alternative Vote Referendum 2011: Analysis of Results”, Research Paper 11/44 (19 May 2011), online: UK Parliament <http://researchbriefings.files.parliament.uk/documents/RP11-44/RP11-44.pdf>: This paper provides full analysis and discussion of the results of this referendum.

143. Ibid.

144. UK Government Scotland Office, “Scottish Independence Referendum – What’s Next?” (19 September 2014), online: UK Government <https://www.gov.uk/government/news/scottish-independence-referendum-whats-next>.

145. Ibid.

146. Scottish Government, Choosing Scotland’s Future: A National Conversation: Independence and Responsibility in the Modern World (August 2007), online: Scottish Government <http://www.gov.scot/Resource/Doc/194791/0052321.pdf>.

147. Commission on Scottish Devolution, The Future of Scottish Devolution within the Union: A First Report (December 2008), online: BBC News <http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/02_12_08_calman.pdf>.

148. Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century: Final Report (June 2009), online: BBC News <http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/15_06_09_calman.pdf>.

149. Scottish Government, Your Scotland, Your Voice: A National Conversation (November 2009), online: Scottish Government <http://www.scotland.gov.uk/Resource/Doc/293639/0090721.pdf>.

150. Scottish Government, Your Scotland, Your Referendum (January 2012), online: Scottish Government <http://www.scotland.gov.uk/Resource/0038/00386122.pdf>.

151. Scotland Act 2012 (UK), c. 11.

152. The Draft Section 30 order is approved by the Scottish Parliament in December 2012, and then by the UK House of Commons and House of Lords in January of 2013.

153. Scottish Government, The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (June 2014), online: Scottish Government <http://www.scotland.gov.uk/resource/0045/00452762.pdf>.

154. “Scottish Independence: Cameron, Miliband and Clegg Sign ‘No’ Vote Pledge” BBC News (16 September 2014), online: BBC News <http://www.bbc.com/news/uk-scotland-scotland-politics-29213418>.

155. JGALLAGHER, im, “The Day After Judgment: Scotland and the UK After the Referendum” (29 September 2014) Policy Scotland Research Paper, online: Policy Scotland, University of Glasgow <http://policyscotland.gla.ac.uk/wp-content/uploads/2014/09/THE-DAY-AFTER-JUDGEMENT-final.pdf>.

156. Ibid. at Preface.

157. TOMKINS, Adam, “Scotland’s Choice, Britain’s Future” (2014) 130 The Law Quarterly Review 215 at 230.

158. Ibid. at 228.

159. QVORTRUP, Matt, “The Neverendum? A History of Referendums and Independence” (2013) 4(2) Political Insight 4 at 6; QVORTRUP, Matt, Referendums and Ethnic Conflict (Philadelphia: University of Pennsylvania Press, 2014) at 141-142.

160. TIERNEY, Stephen and SUTEU, Silvia, “Towards a Democratic and Deliberative Referendum? Analysing the Scottish Independence Referendum Bill and the Scottish Independence Referendum (Franchise Bill)” (21 August 2013), online: Scottish Constitutional Futures Forum <http://www.scottishconstitutionalfutures.org/portals/29/tierney%20and%20suteu.pdf>.

161. New Zealand Electoral Commission, supra note 70.

162. New Zealand Office of the Clerk of the House of Representatives, “Chapter 41: Referendums” (14 October 2010), online: New Zealand Parliament <http://www.parliament.nz/en-nz/about-parliament/how-parliament-works/ppnz/00HOOOCPPNZ_411/chapter-41-referendums>.The binding effect of a referendum is achieved by the enactment of a “statutory trigger”, i.e. specific wording within the legislation.

163. Electoral Referendum Act 1993 (NZ).

164. Electoral Referendum Act 2010 (NZ).

165. New Zealand Office of the Clerk of the House of Representatives, supra note 162.

166. On a compulsory retirement savings scheme in 1997, changes in term limits in both 1967 and 1990, and changes to the electoral system in 1992.

167. In other words, “[i]n each case it would have been necessary for the Parliament to have passed further legislation giving effect to the electorate’s wishes”. New Zealand Office of the Clerk of the House of Representatives, supra note 162.

168. Electoral Referendum Act 1991 (NZ).

169. New Zealand Office of the Clerk of the House of Representatives, supra note 162.

170. Electoral Act 1993 (NZ).

171. New Zealand Electoral Commission, supra note 70. The 1992 non-binding referendum resulted in a 84.7 percent vote in favour of change, with 70.5 percent voting for that change to be to a Mixed Member Plurality system.

172. Ibid.

173. Ibid.

174. HAYWARD, J., “Rethinking Electoral Reform in New Zealand: The Benefits of Citizens’ Assemblies” (2014) 9 New Zealand Journal of Social Sciences Online 11 at 12.

175. Ibid.

176. BANDUCCI, Susan, DONOVAN, Todd, and KARP, Jeffrey A., “Proportional Representation and Attitudes About Politics: Results From New Zealand” (1999) 18(4) Electoral Studies 533 at 534.

177. Ibid. at 537.

178. Linder provides a full listing of all Swiss referenda and initiative from 1848-2006. See LINDER, Wolf, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies, 3rd rev. ed. (Basingstoke: Palgrave Macmillan, 2010) at 19.

179. Ibid. at 101.

180. LADNER, Andreas, “Switzerland: Subsidiarity, Power-sharing, and Direct Democracy” in John LOUGHLIN, Frank HENDRIKS, and Anders LIDSTROEM, eds., The Oxford Handbook of Local and Regional Democracy in Europe (Oxford: Oxford University Press, 2012), 196 at 199.

181. Ibid. at 205-206.

182. See Linder, supra note 178 at 102 (noting that from 1848 to 2006, 2260 Bills were subject to referendums although only 73 such challenges were successful).

183. Ibid. at 103-104.

184. Ibid. at 122.

185. California Secretary of State, “Statewide Initiative Guide”, supra note 98.

186. California Secretary of State, “Referendum”, supra note 95.

187. Ibid. These were related to the reapportionment of Congressional or Senate districts.

188. California Secretary of State, “History of California Initiatives”, online: California Secretary of State <http://www.sos.ca.gov/elections/ballot-measures/resources-and-historical-information/history-california-initiatives/>.

189. Ibid. For example: a 2010 vote increasing the legislative vote requirement to two-thirds for state levies and charges; a 1998 vote limiting congressional terms; a 1996 vote on campaign contributions and spending limits; and several votes on reapportionment of Congressional or Senate districts.

190. GORDON, Tracy, The Local Initiative in California (Public Policy Institute of California, 2004), online: Public Policy Institute of California <http://www.ppic.org/content/pubs/report/R_904TGR.pdf>.

191. DAMORE, David, BOWLER, Shaun, and NICHOLSON, Stephen P., “Agenda Setting by Direct Democracy: Comparing the Initiative and the Referendum” (2012) 12(4) State Politics & Policy Quarterly 367 at 369.

192. GENDZEL, Glen, “The People Versus the Octopus: California Progressives and the Origins of Direct Democracy” (2013) 37 Siècles 2 at 6.

193. TWOMEY, Anne, “Dangerous Democracy – Citizens’ Initiated Referenda in California” (2010) Sydney Law School Legal Studies Research Paper No. 10/116 at 2, online: Social Science Research Network (SSRN) <http://ssrn.com/abstract=1703201>.

194. Ibid. at 2-3.

195. Ibid.

196. See, online: Central Election Commission <http://engweb.cec.gov.tw/files/11-1030-3863.php>.

197. “Profile: Chen Shui-bian” BBC News (11 June 2010), online: BBC News <http://news.bbc.co.uk/2/hi/asia-pacific/2172980.stm>.

198. See the official statement issued by Chinese Government on 20 March 2004: LI Si, “Taiwan Dangju Zhiyi Juban Suowei ‘Heping Gongtou’ (臺灣當局執意舉辦所謂‘和平公投’) [The Authorities in Taiwan Insist on Holding the So-Called ‘Peaceful Referendum’]” Lishi shang de Jintian (歷史上的今天) [Today on History] (10 July 2012), online: Today on History <http://www.todayonhistory.com/3/20/TaiWanDangJuZhiYiJuBanSuoWei-HePingGongTou.html>.

199. Xinhua News Agency, “Referendum of Taiwan Independence Criticized” china.org.cn (6 August 2002), online: china.org.cn <http://www.china.org.cn/english/2002/Aug/38721.htm>. US President George Bush also objected to the referendum because he did not want to upset the status quo between the two governments. Corbett B. DALY and Greg ROBB, “Bush Opposes Taiwan Referendum” MarketWatch (9 December 2003), online: MarketWatch <http://www.marketwatch.com/story/bush-says-us-opposes-taiwan-independence-referendum>.

200. Xinhua News Agency, “Zhongfang Xiwang Mei Ri Qieshi Lüxing Buzhichi ‘Taidu’ Chengnuo (中方希望美日切實履行不支持‘台獨’承諾) [China Hopes the US Would Duly Honour Its Promise of not Supporting ‘Taiwan Independence’]” Sohu Xinwen (搜狐新聞) [Sohu News] (21 March 2008), online: Sohu News <http://news.sohu.com/20080321/n255845284.shtml>.

201. See, online: Central Election Commission <http://engweb.cec.gov.tw/files/11-1030-3863.php>; HUANG, Chi, “Referendum and Democracy: The Experience of Taiwan” in Philip PAOLINO and James MEERNIK, eds., Democratization in Taiwan: Challenges in Transformation (Aldershot: Ashgate, 2008), 121 at 125; Lin, supra note 102 at 145.

202. FUNG, Fanny and LEUNG, Ambrose, “Five Quit to Force ‘Referendum’ Despite Mounting Criticism” South China Morning Post (27 January 2010), online: South China Morning Post <http://www.scmp.com/article/704719/five-quit-force-referendum-despite-mounting-criticism>.

203. Ibid.

204. Ibid.

205. GHAI, Yash, “Putting the Cat Among the Pigeons: The Politics of the Referendum” (2004) 34 Hong Kong Law Journal 433.

206. Ibid. at 435-436.

207. LAM, Jeffie, “Democratic Party Caught in Dilemma over Albert Ho’s ‘Referendum’ Plan” South China Morning Post (3 February 2015), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1701140/democratic-party-caught-dilemma-over-albert-hos-referendum-plan> (on file with the authors).

208. Tierney, supra note 3 at 6.

209. Ghai, supra note 205 at 441.

210. Ibid.

211. Ibid. at 444.

212. The authors note that in 1993 only one-third of the electorate agreed that they could trust government to do what was right most of the time, while confidence in parliament declined from 33 percent in 1975 to single figures by 1988. See Banducci, Donovan, and Karp, supra note 176 at 534.

213. Tierney, supra note 3 at 8.

214. “1.2 Million People Took Part in Occupy Protests, Poll Shows” ejinsight on the pulse (19 December 2014), online: ejinsight on the pulse <http://www.ejinsight.com/20141229-1.2-million-people-took-part-in-occupy-protests-poll-shows/>.

215. CHEN, Albert, “Ideas for Post-Occupy Political Reform” HKU Legal Scholarship Blog (25 December 2014), online: HKU Legal Scholarship Blog <http://researchblog.law.hku.hk/2014/12/albert-chen-on-ideas-for-post-occupy.html>.

216. YOUNG, Simon, “Realising Universal Suffrage in Hong Kong after the Standing Committee’s Decision” (2014) 44 Hong Kong Law Journal 689.

217. Basic Law, supra note 6, art. 74.

218. Ibid.

219. Ibid., Annex II.

220. Ibid.

221. For more information on the UK Electoral Commission, see, online: UK Electoral Commission <http://www.electoralcommission.org.uk/>.

222. Ibid. at 7.

* Professor of Law, Associate Dean, Director of Centre for Chinese and Comparative Law, School of Law, City University of Hong Kong; barrister, Hong Kong; member, Law Reform Commission of Hong Kong; Co-Editor-in-Chief, Asia Pacific Law Review.

** Hon. B.A., M.A. (Toronto); LL.M. (Osgoode); D.Phil. (Oxon.). Assistant Professor, Department of Criminology, Ryerson University, Toronto, Ontario, Canada. The authors would like to thank the anonymous reviewer for his valuable and constructive comments.