Courts should seek doctrinal principles that bear even-handed application across different contexts with differing ideological implications.
The Chief Executive of Hong Kong recently lamented that permitting democratic elections there would permit too many relatively poor people to vote. He fears that this group – comprised of those earning less than $1,800 per month, in his view – could vote themselves excessive benefits and endanger Hong Kong’s prosperity.
The irony is delicious – the Chief Executive, vetted for his position by the Communist Party of China, opposes democracy because it empowers the poor. May the communist slogans in China rest in peace!
But does the Chief Executive have a point, at least in the Hong Kong context? Hong Kong has prospered tremendously without real democracy. Between 1961 and 1997, when the British returned Hong Kong to China, real per capita income in Hong Kong grew by approximately 5.5 percent per year, on average, transforming the community into one of the wealthiest in the world. Since 1997, Hong Kong has continued to grow at a faster rate than most industrialized nations, albeit now at a slower rate than before. What needs fixing?
The most persuasive counterargument is that the growth happened either under British rule or in its immediate aftermath under institutions that the British established. Indirect rule by one of the great rights-respecting democracies differs profoundly from indirect rule by a communist dictatorship. More generally, the British had incentives to make Hong Kong successful: a flourishing outpost in Asia contributed to Britain’s own success. These conditions cannot be expected to be replicated indefinitely. Democracy is form of government with lower risk: while it might be less likely to reach the successes Hong Kong enjoyed in the past, it is much less likely to lead to disasters, including those of large-scale expropriation or state sponsored violence.
As for the concern that the poor may vote themselves benefits, a government that is plaything of local oligarchs (as some have accused Hong Kong’s of being) can become a racket of the rich. For instance, those with large properties may impose onerous zoning laws to keep their property values high at the expense of the less well-to-do.
But I do think the protestors of Hong Kong may be putting too much faith in simple democracy. Without a system of checks and balances and strong protections for individual rights, including those of property and contract, there is a danger that simple democracy can harm continued economic progress in Hong Kong. In other words, the introduction of democracy likely requires other changes in institutions that were better adapted to a less democratic regime. For instance, my cursory reading of the Hong Kong Constitution suggests that relatively few rights are expressly spelled out in the Constitution. International law rights are referenced but seem to depend on implementation by the legislature.
Here is a suggestion for Hong Kong’s democrats: Call for a new Hong Kong Constitution which would embed democracy in republican institutions, including strong rights of liberty of contract and property to be protected by judicial review. A bicameral legislature may also be useful, because it tends to slow down change and cool passions. Such a constitution might in fact appeal to a wider group of Hong Kong citizens, including those who fear that simple democracy may favor passion over reason. If such a constitution were passed by a supermajoritian consensus, its provisions would likely be good. And as importantly it would then have the kind of very widespread buy-in from Honk Kong society that China would have more difficulty resisting.