Hong Kong has been engulfed in very serious violence over the past year, following months of increasingly fierce confrontations between revolutionary rioters (who object fiercely to being described as rioters) and the police – culminating, as I write this article, in the shooting of an unarmed demonstrator in circumstances which seem to me to be indefensible.

The role of street demonstrations in Hong Kong culture and politics

Hong Kong has one of the most highly developed street demonstration cultures in the world. There are several reasons for this. The city is compact and high density, so that it is easy to convene very large demonstrations, on occasion up to a million people. More significantly, the city has had free speech and freedom of assembly for a long time, but it does not have full democracy. Street demonstrations therefore provide the main outlet for bringing political pressure to bear on the non-elected government of the Hong Kong Special Administrative Region of China, whose Chief Executive is appointed by a small circle of Beijing chosen nominators.

The Sino-British Joint Declaration on the Future of Hong Kong, signed by the UK and China in 1984, is a binding international treaty committing China to keep Hong Kong and its non-Communist way of life unchanged until 2047. The Joint Declaration is implemented through the Basic Law of the Hong Kong Special Administrative Region, often referred to as Hong Kong’s mini constitution. The Basic Law entrenches most internationally recognised human rights, some of which are contained in its text, while others are incorporated by reference by Basic Law Article 39, which provides that Hong Kong shall continue to observe the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. The ICCPR is applied in Hong Kong by the Hong Kong Bill of Rights, enacted in 1992, five years before the handover to China and the coming into force of the Basic Law.

Constitutional review

As a result of these constitutional provisions, freedom of speech, association and assembly are constitutionally protected in Hong Kong. Hong Kong operates a system of constitutional review similar to the United States, Australia and Canada, whereby both ordinary laws and executive acts may be struck down if they are found to be inconsistent with the Basic Law. Judges from the UK, Australia, Canada and New Zealand sit on Hong Kong’s highest court, the Court of Final Appeal.

‘Interpretations’: the Achilles heel?

This is a reasonably comprehensive system for legal protection of human rights. However, it has one gap which may prove to be its Achilles heel. Before taking a decision on matters which affect the Central People’s Government, the Hong Kong Court of Final Appeal is required to seek an interpretation of the issue of law before it from the Standing Committee of the Chinese National People’s Congress. This is a rubber stamp body in Beijing which simply carries out the orders of the Beijing government.

For the first 20 years after 1997 this system worked reasonably well, with only a few interpretations by the National People’s Congress (NPC). More recently, however, the system has been eroded by an ‘interpretation’ by the NPC before any reference to it from Hong Kong. This interpretation is to the effect that the requirement that Hong Kong legislators must uphold the Basic Law means that any candidate for election to the Legislative Council who has ever, in the judgment of the returning officer, advocated independence for Hong Kong, is not eligible to be a candidate. This was not previously the law of Hong Kong, and the use of the interpretation to disqualify several elected legislators has massively inflamed tension.

The Basic Law is unusual in containing, in Article 27, a specific right of demonstration, in addition to the more general freedom of assembly. The issue of what this meant in practice came under scrutiny in Yeung May Wan & Ors v HKSAR [2005] 2 HKLRD 212, in which I appeared for the defendants on several charges of pavement obstruction. I argued that the right of demonstration had to include a right to a certain reasonable amount of pavement obstruction otherwise it could never be exercised, and that the law against pavement obstruction had to be ‘read down’ to respect this constitutional right. After a torrid trial in the magistrates’ court this argument was eventually accepted by the Court of Final Appeal and remains the law in Hong Kong today.

It remains to be seen whether Hong Kong’s tradition of legally and constitutionally protected peaceful demonstrations will survive the present crisis.