December Opinion Article

source - https://slate.com/news-and-politics/2019/10/hong-kong-china-protests-endgame.html

About the Author

Matthew Chan is a HongKonger who does Combined Social Sciences in Durham University. He has personally participated in the protests in Hong Kong during the summer of 2019. Through his article, he wishes to extend a different perspective towards a larger audience. While witnessing aggressive protestors’ actions, he thought about the morality of their actions and whether the ends justify the means and seeks to contemplate the issue from a legal perspective while writing for the Durham Law Review.

To what extent is violence justifiable in the protests to maintain the rule of law in Hong Kong?

According to Reidy, a legal system is a coercively enforced system of public rules regulating the conduct of rational people and providing a framework for social cooperation for the greater common good. One of the minimum requirements for maintaining the rule of law is the ‘regular and impartial administration of these rules’ (Reidy 2015). With this in mind, the protests in Hong Kong to maintain the rule of law therefore implies the failure to carry out the ‘regular and impartial administration’ by the government. In a legal regime, violence is never justifiable to maintain the rule of law as the society trusts the institution and its ‘regular and impartial administration’ that the legality could be refined peacefully and effectively for the greater common good. But is this prohibition against violence absolute? If there is injustice done by the government who professes to uphold the rule of law, would there be a time when violence is necessary and justifiable under the common-law doctrine of self-defence?

Assuming that the rule of law in a legal society is for the greater common good and that a legal system is a coercively enforced system of public rules and violence is the coercive impetus that break those rules, then violence is not justifiable in maintaining the ‘regular and impartial administration’ of public rules as the breach of law itself disrupts the basis of a legal society. Instead, institutional means within the legal system could be taken to express disagreement: protesting, suing, or deciding by a majority vote. However, in the case of Hong Kong, recent events like Ms Carrie Lam’s decision to bypass the legislature in October and invoke emergency powers show the breakdown of the rule of law in Hong Kong. In this case, the legitimacy of law would be gradually impaired (Kramer, 2009) and finally, resulting in the collapse of the whole system itself. Therefore, only in a society where there is injustice or wrongdoing by the government can the use of violence be used as a last resort to enforce the protestors’ demands and restore the legality of the society. The argument here is, so long as the legal system is perceived to be legitimate and the rule of law is present, the one and only justifiable way to maintain the rule of law is within the legal system itself. When the legal system is undermined by political influences, it suggests that the system itself is not legitimate, and opposition towards this prejudice should be shown.

In the case of Hong Kong, evidence shows that it is slipping further away from legal governance as defined by Lon Fuller’s formulation of the eight precepts of legality (Kramer, 2009). The precepts outlined include logical consistency of governance norms and its joint fulfilment of obligations and the formation of norms to be congruent with the ways they are implemented. The extradition bill that sparked the protests violated the ‘one country two system’ principle stated in the Basic Law, thus posing contradicting and unharmonised norms. Moreover, with the crumbling legitimacy of the HK government, laws proposed were contempt by the people (for instance the letter of no objection for public assembly and the anti-mask law) for many times. In such a regime, legal institutions are futile to restore its own legitimacy and legality, and therefore violence becomes the sole means to achieve change and thus is justifiable as a last resort after all other peaceful and legal means have proven to be in vain.

Works referenced: 

Reidy, D. A. (2015). ‘Rule of Law’ in Mandle, J. et al. (ed.) The Cambridge Rawls Lexicon. Cambridge University Press. pp. 745 – 749.

Kramer, M. (2009). Objectivity and the Rule of Law. Cambridge University Press.