Can Bar get itself out of its protest quagmire?

In an interview touching on an unauthorized assembly case, Bar Association chairman Paul Harris said: "People have strong feelings and they need to find an outlet for those feelings; a peaceful demonstration is an outlet. If you don't allow it those feelings will not go away. They are very likely to turn to very damaging channels, which can include violence."

Harris told me this passage was made in relation to his book on peaceful demonstrations.

I. First implied misconception: If an act is 'peaceful' the law should not intervene

Yet "peaceful" acts can also do harm to society.

One can peacefully deceive another into losing their life savings; peacefully steal from a jewelry shop; peacefully incite youngsters to commit crimes etc on the "peaceful analysis" that the rule of law principle is not injured because offenders will be pursued; peacefully induce hatred by making flimsy accusations of "police brutality" (Judge Russell Coleman rightly rejected such nonsense in HCA1957/2019). Whether an act is a crime should be decided by the law, not by whether it is "peaceful."

II. The more damaging misconception: 'Strong feelings justify violence'

This suggests to avoid the possibility of violence the law should give way to "strong feelings." It implies that if there are two groups with strong feelings against the other the law should give way to the one with stronger feelings, ie, the one more prone to use violence. The law is debased to become the servant of those with "stronger feelings."

In recent years the theme of violence has been advocated by, among others, vocal barristers, that unlawful violence can sometimes solve problems. Others, notably some law lecturers and teachers, have helped disable the law by giving "moral halos," especially to youngsters, that the law should not apply if you are fighting for what you perceive to be "freedom" or "democracy."

The mentality of violence proliferated and was put into practice by many in 2019. In the latter half of that year, 4,000 firebombs were thrown and 10,000 seized.

This is distressing organized violence.

It has caused immense suffering to all sides, in particular innocent parents, who found their children radicalized. Many expected the Bar to unequivocally defend the rule of law by condemning such violence. They were disappointed.

III. Can desires or strong feelings for 'noble causes' such as freedom and democracy justify violence? False freedom should not be pursued and cannot justify violence.

Individual desires (often labeled as "human rights") are biological, amoral, irrational and mutually exclusive. As Hobbes has warned, unrestrained desires would lead to unending chaos and violence.

Blackstone is apprehensive about this "natural liberty without any restraint or control" and rightly suggests true freedom depends on establishing laws and legal obedience: " But every man, when he enters into society, gives up a part of his natural liberty as the price of so valuable a purchase.

Freedom is constituted by responsibility and legal order. Mutual freedom can only coexist under a legal system. It is nonsensical and counterproductive to try to pursue freedom through "repeated and escalating breaches of the law."

Ailing democracy should not be pursued and cannot justify violence

Responsible professionals should honestly and critically face the signs that even in "mature democracies" democracy is malfunctioning. It is increasingly plagued by polarization, poor governance, irrational and irresponsible voting practices, failing election promises and the incoherence of voting logic. And the failures of democracy are causing turmoil and grave sufferings in "developing democracies."

If democracy is sick Foreign Minister Wang Yi is right to be cautious: Coca-Cola is unlikely good for the health of all countries.

Many would find it absurd to implement a sick democracy by breaking down a healthy legal system. If democracy is ailing it must be nursed back to health. The common law has developed rational platforms to enable explorations of social improvements through responsible, critical processes.

The Bar should defend the rule of law by channeling any "strong feelings" about ailing democracy back to the constitutional and legal framework.

True civilization and social progress are sustained by responsibility, critical rationality, mutual respect and equality under legal orders, not by violence. The right way to defend malfunctioning "liberal values" is to responsibly and vigilantly explore better and workable new options. There is too much at stake in the well-being of future generations to allow professionals to let themselves be carried away by political slogans or "strong feelings."

Looking ahead

The Bar's independence is diminished when barristers indulge in isolating elitism. Its future is advanced by keeping desire-dominated "liberal" ideology and politics out of the law and by a respect of the people and of the different mode of development in the mainland.

For years some influential Bar members have indulged in an ideological quagmire, leading to a crisis not just about leadership but also about the fate of the law. The crisis is deep and the task of resolving it is arduous.

Robert S K Lee, Senior Counsel