This presentation reviews the judgments of the courts of the HKSAR between 2018 and 2021 on protests and protesters, which dealt with offences committed between 2014 and 2020. The review tends to show that from 2020, there emerges a developing strand of jurisprudence defining the nature of the protests and the action of protesters and giving guidance on their criminalization and punishment. With several judgments, the appellate courts have guided the trial courts to impose sentences that mete out punishment and deter offenders on defendants who took part in a riot, an unlawful assembly with violence, an unlawful assembly with little or no violence, and an unauthorized but largely peaceful assembly that caused city wide disruptions, with terms of imprisonment of more than 12 months being the norm. This presentation examines these turning points and their impact on the maintenance and improvement of the Rule of Law in Hong Kong.
Can legal professionalism defend the rule of law in authoritarian regimes? This paper differentiates legal professionalism in two forms, i.e. ‘comprador professionalism’ and ‘confrontational professionalism’, indicating the nature of the relationship between authoritarian states and legal profession alongside the trajectories of politicisation in the legal community. Based on a sociological investigation of the dynamics of Hong Kong’s legal profession between 2014 and 2020, this paper argues that, authoritarian regimes can intervene the self-regulatory legal profession by instituting comprador professionalism which appreciates the instrumental and economic values of the rule of law on one hand, yet relativises its substantive values of safeguarding civil liberties on the other. Although lawyers can exercise confrontational professionalism within professional bodies, the utility of resistance depreciates under unfavourable institutional and cultural settings within the legal community.
This paper argues that the relationship between the Chinese and HK legal orders has evolved from a form of legal pluralism found in the EU to a monist but bifurcated system – to a “dual state”, to borrow from Ernst Fraenkel’s theory. Recent events, including China’s imposition of a security law on HK, have consolidated that change. The picture that emerges is that Hong Kong’s common law system has become a dual state enfolded within China’s socialist legal system, which is itself a dual state. The analysis not only enables us to rationalise the developments in the two jurisdictions’ relationship, but has wider theoretical implications: it suggests a way of distinguishing a dual state from a fully liberal legal order, clarifies the relationship between theories of legal order and regime types, distils the similarities and differences between legal pluralism and dual state, and reveals the challenges of and potential for maintaining liberal values in an authoritarian regime.
On 30 June 2020, the Standing Committee of the National People’s Congress of the People’s Republic of China enacted the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong S.A.R (“the NSL”). The NSL was a response to political protest that engulfed Hong Kong in 2019. While ostensibly aimed at quelling a crisis, it has prompted disquiet about Hong Kong’s legal-political trajectory, both locally and internationally. We suggest the NSL marks a caesura in Hong Kong’s intertwined constitutional struggles: the struggle for democratic governance and the struggle to sustain rule of law. We argue that the substance of the NSL as well as the manner of its enactment profoundly damage the Hong Kong Basic Law’s already faltering status as a regional constitution. We highlight factors that make rule of law in Hong Kong fundamentally brittle, and problematize the concepts of hybrid constitutionalism and authoritarian legality based on the Hong Kong experience.