Students' protest in no way undermines our rule of law
Kelley Loper says student protesters are not undermining Hong Kong's rule of law, but are opposing the use of the law as a tool of oppression
Like many others, I have been inspired by the recent demonstrations for genuine democracy in Hong Kong. I admire the courage and conviction of Hong Kong's younger generation and others who are working to effect positive change through peaceful means. The students' display of civic-mindedness and their desire to participate in the political process bode well for Hong Kong's future.
Some commentators, however, claim that the protesters are hurting Hong Kong and even undermining the rule of law, a core value and an important feature of Hong Kong's collective identity. This view, however, fails to take into account the richness and complexity of the rule of law.
The rule of law does not demand unquestioning obedience to existing regulations; in fact, defending the rule of law may sometimes require breaking rules. The rule of law is, first and foremost, a means of ensuring that those in power do not overstep the limits of their mandate to govern and that they protect human rights and fundamental freedoms.
In other words, the rule of law means government accountability. Democratic principles reflected in international human rights standards underpin accountability and are prerequisite to the full realisation of the rule of law. Without such accountability, the "rule of law" can become "rule by law".
When "rule by law" prevails, the law may become a tool of oppression. In a "rule by law" society, any law on the books - however unjust it may be - is considered valid. The rule of law is threatened when political leaders are selected and make laws within a system that does not permit equal participation.
So the political process as well as the substance of the law matter: both must comply with universal human rights. Beijing has extended to Hong Kong core human rights treaties - which are binding agreements - that require the government to establish mechanisms that allow for equal, meaningful participation in public life. The proposed method for selecting the chief executive fails to meet these standards.
The rule of law and human rights values are core components of Hong Kong's domestic legal order, endorsed by the central authorities in accordance with the "one country, two systems" formula. The Basic Law provides for the independence of the judiciary and incorporates international human rights norms.
The demonstrators are merely attempting to expose the gap that exists between these legally binding promises and the actual lack of genuine democracy. The students understand that they not only have a right to participate, but that they also have a civic duty to speak up when their core values are at stake.
The rule of law, respect for human rights, and genuine democracy are overlapping, interconnected and mutually reinforcing principles. When one of these elements is absent, the others may be at risk. The missing piece in Hong Kong, of course, is meaningful political participation. When governments block avenues for citizens' voices to be heard, peaceful protest may be the only option.
