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Is staying on to serve on the Legco against the principle of democracy?


(Editor's note: this article was originally published in Chinese and has been translated into English by CitizenNews.)

Should pro-democracy lawmakers serve another year on the Legislative Council (or LegCo)? This is an extremely complicated question; both sides, for and against, have their own grounds.
 
As a scholar of political philosophy, I give special consideration to arguments that invoke the principle of democracy. In particular, some have argued that the pan-democrats’ staying on the extended term of the Legco would violate the democratic principle. Is this argument sound?

The pro-democracy lawmakers take a group picture after the last meeting of this current session in the Legislative Council chamber.  Photo: Alex Chow

To answer this question, we have to first clarify some concepts. It’s no easy task, if not controversial, to explain conceptual issues, and it goes without saying that I may not be right. As an academic, I am often sceptical about my own views, and I am not as self-assured as some KOLs. I urge my readers to read what follows with a healthy dose of scepticism. Comments are most welcome.
 
First and foremost, we have to distinguish the following views.
 
1. The principle of democracy- governments should be elected by universal suffrage in terms of free and competitive elections.
 
2. Ideal situations - In a healthy democracy, politicians should participate in politics in accordance with the principle of democracy.
 
3. Practical situations - In a defective democracy, or under an undemocratic system, politicians should still act according to the principle of democracy, including not to join a legislature that lacks a democratic mandate.
 
I want to argue that the second point does not entail the third, for these are issues at two different levels.
 
The assumption behind the second point is that, under a robust democracy, politicians following the rules of the political system would, in general (assuming no tyranny of the majority), uphold the values that the society pursues, such as respect for people’s will, protection of liberties and rights, the rule of law, and so on. In other words, the values pursued under a democracy could generally be upheld by following the principle of democracy. Under this ideal situation, democracy is a side-constraint principle that politicians should not violate.
 
But in reality, when a political system is not democratic, refusing to participate in it according to the principle of democracy does not necessary help achieve democracy or actualise other values. We should see democracy not as a side-constraint of one’s action, but rather an objective to pursue.
 
The means to pursue democracy does not always have to comply with principle of democracy. The ethics of political activism under a non-ideal situation is an extremely complicated topic. Should one consider civil disobedience? Is violent resistance moral? Is it reasonable to participate in an undemocratic system? Consequentialist thinking plays a crucial role in debating these topics. We have to consider multiple factors, instead of just complying with the principle of democracy. Otherwise, the joining of the elections of the Chief Executive, Legco’s functional constituency, and the appointed Legislative Council during the colonial era  would be excluded as a matter of principle, since they all lack a democratic mandate.
 
Let us get back to the question of whether the pan-democrats should stay on the LegCo or resign. If the legislators’  staying on could stop or delay the Legco from passing bills that seriously violate Hong Kong people’s interests, or arouse the public’s attention to those problems and encourage people to take public action, then it should not be ruled out simply because the Legco lacks a public mandate.
 
Let us compare the following two scenarios:
 
1.    A Legco without a public mandate and without the pro-democracy camp;
 
2.    A Legco without a public mandate and with some pro-democracy lawmakers, and thus it is a Legco that, to some extent, reflects the views of pro-democracy voters.
 
Which scenario is better? I would suggest it’s the second one.
 
Perhaps one might argue that the pro-democracy lawmakers, by participating in a legislature without a public mandate, and subsequently exercising their power under the legislature’s rules and procedures, would be endorsing the legitimacy and the authority of the legislature. I am afraid I cannot agree.
 
If the pro-democracy lawmakers participate in the legislature with an attitude of resistance, and try hard to amend unreasonable rules while in power, and when not in power, resist or even run afoul of such rules, why would these defying participants be submitting to the authority of the legislature? They are only putting up a fight with a sense of pragmatism – fight or play by the rules whenever appropriate, all based on whether or not doing so can advance democracy or obstruct the deplorable governance of an authoritarian regime. For those who participated in the recent pro-democracy primaries, were they not positioning themselves likewise?
 
If one’s argument against serving on the extended term of the Legco is hinged on the distrust of the incumbent pro-democracy legislators, questioning their determination to fight their might in the legislature, then the argument is not about the side constraint of the principle of democracy; it is about the bad consequences of staying on. I have some thoughts on this matter, but will leave it to another piece.
 
Finally, let’s consider Mr. Leung Chun-ying’s challenge against the pro-democracy lawmakers. He attacked the pro-democracy camp for being inconsistent with their earlier position. Mr. Leung said that since those legislators had already opposed the extension of the Legco term for another year on the ground of legitimacy or constitutionality, it would be inconsistent for them to stay on in the extended period. 
 
In my view, Mr. Leung’s argument does not hold water. As I have argued above, criticising an election or a parliament for lacking legitimacy does not mean that one cannot participate in it. The former is based on the assessment of the reality in relation to the ideal principle of democracy, while the latter is about the ethics of political action in nonideal situations. The two issues do not necessarily have tight logical connections. At best, the former constitutes one of the considerations of the latter. Arguments aside, one could treat Mr. Leung’s criticism the other way round – the more he tries to goad the democrats into boycotting the Legco, the more the democrats should refrain from doing so.

中文原文:民主派議員留任立法會是否違反民主原則?


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