The Dissolution of the Hong Kong National Party: Constitutionality under the ‘Militant Democracy’ Theory

Abstract

The unprecedented dissolution of the Hong Kong National Party, a localist political party advocating the independence of Hong Kong from China, has given rise to a constitutional dispute over the competing principles of protecting national security and upholding freedom of association. This article first analyses the theory of ‘militant democracy’, which refers to a form of constitutional democracy authorized to protect civil and political freedom by pre-emptively restricting the exercise of such freedoms, as applied in the case law of the European Court of Human Rights. It argues that a pre-emptive ban on a party can be justified by a government if the party pursues undemocratic aims or employs violence or incitement to violence to achieve its political goals. This article then assesses the constitutionality of the dissolution of the Hong Kong National Party in light of the theory of ‘militant democracy’ and submits that such a theory should equally apply to Hong Kong, allowing the government to act in a militant manner to dissolve any political parties such as the Hong Kong National Party if they have incited or resorted to violence to pursue their political agenda.