A regular primary claim made by those involved in the “35+” movement as well as some commentators is that the Basic Law of the Hong Kong Special Administrative Region, in Article 52, provides that the SAR’s chief executive must resign under certain circumstances, including when the Legislative Council (LegCo) — and a re-elected LegCo — have each refused to pass the budget. This is accurate, as far as it goes.

But next, it was argued, implicitly or explicitly, that wider contextual considerations should not qualify this deliberately narrow emphasis. This methodically literal analysis was focused on the bare words in the Basic Law in order to support a devious argument that the Basic Law permitted the “35+” project  — at least prior to the promulgation of the National Security Law for Hong Kong on June 30, 2020.

In essence, the argument relied on avoiding reference, as far as possible, to the real-world context within which the Basic Law operates to establish a legalistic, rarified zone for interpretation of what Article 52 means — and allows.

This de-contextualizing approach is not novel. Lawyers have long applied it in the common law world, with varying degrees of success, in various circumstances.

Arguably, the most striking use of this technique emerged in the United Kingdom and the United States as the industrial revolution gathered pace. The huge uplift in wealth generated by that revolution was massively beneficial to the factory-owning class but far less so to the millions of workers who generated that wealth through their labor.

Those early factories, coal mines and the like were often hazardous and prone to frequent accidents that sometimes left people maimed.

The question, thus, arose: Who was responsible for all this death and impairment. Should the factory owners compensate all workers harmed at work (and their families)? The factory owners begged to disagree and after legal arguments ensued, the superior common law courts significantly confirmed their right to do so.

New legal doctrines were established by the courts to secure this outcome, including “voluntary assumption of risk”, the “fellow-employee rule”, and “contributory negligence”.

Underpinning these rules, denying employer liability in countless cases, was the legal argument that employees — like employers — enjoyed comparable “agency”, which both sides exercised in “freely entering” the applicable employment contract. Thus, employees “agreed” in these contracts to assume risks encountered in the workplace and if they were injured due any negligence on the part of a fellow-worker, or if they contributed in any arguable way to a given accident at work, then compensation could be denied or greatly reduced under those same contracts of employment.

And when this methodically legalistic reasoning is properly considered within the context of the relevant, real-life circumstances leading up to the “35+” project, its persuasive power dissolves completely. That crucial, undeniable context was acutely summarized by the former Court of Final Appeal judge, Henry Litton, in this way: “What Hong Kong faced [in 2019] was an insurgency, the overthrow of the government, nothing less.”

The real-life context of often impoverished workers, having little if any freedom of choice, and typically wealthy and independent factory owners, too often operating what came to be known as “satanic mills”, was swept out of sight in these judgments. There was no “agency equivalence” between employees and a given factory-owning employer in real life, but in the rarified, legalized view of factory work, there was.

A related pattern, relying on similar reasoning and drawing on the “due process” provision in the US Constitution, saw the US Supreme Court strike down certain federal and state laws designed to offer a range of workplace protections to employees and to end the use of child labor. The Supreme Court confirmed, in Lochner’s case in 1905, that the constitution protected the rights of both parties to enter freely into employment contracts without being subject to improper legislative interference. Once again, the real-life context was smothered, and confining legalism triumphed — until this “Lochner doctrine” was overturned in 1937.

Before we consider the real-life context within which the “35+” plan evolved and was set to be applied, it is useful to look, once more, at the wording of Basic Law Article 52 (and related articles).

First, nowhere in the wording of these articles is there even a hint affirming that the provisions might legitimately be used as the foundational means to implement the 10-step laam chau (or mutually assured destruction) program, which stipulated the hugely disruptive political outcomes foreseen by those planning this project.

Next, Professor Yash Ghai discussed these Basic Law articles in his seminal book, Hong Kong’s New Constitutional Order. In Chapter 7, he envisaged possible disputes between the LegCo and the executive branch of the Hong Kong Special Administrative Region government over taxation rates or certain public expenditures, which could give rise to resorting to these Basic Law provisions. Nowhere in his review of these articles did he anticipate that they might be used as a very powerful indirect means of coercing radical policy changes unrelated to the budget.

Now consider the fundamentally important context which gave rise to the “35+” plan and within which it was meant to unfold. Many political disruptive events preceded the multi-month insurrection, which began in Hong Kong in mid-2019. There were major protest marches at the start of that insurgency, but the continuous, intense levels of violence and mass destruction, which spun-off from those marches, was staggeringly harmful for Hong Kong and its residents.

Moreover, we saw how the LegCo was rendered inoperable because of massive, riot-driven vandalism for about three months from July 1, 2019. Then, once the LegCo reopened, it was brought close to a functional standstill for many more months (not least by those later supporting the “35+” project) as a result of the opposition’s procedural manipulation.

To argue that the complete “35+” political scheme was compliant with the Basic Law because a literal reading of the relevant Basic Law articles allowed the core of this strategy (often called “a denial of supply”) to be adopted and applied ignores the clear, restricted purpose of those provisions. These articles were not put in the Basic Law to allow the implementation of a brazen plan to paralyze normal governance in order to compel radical political change through legalized, financial intimidation, where serious political violence was also envisaged.

And when this methodically legalistic reasoning is properly considered within the context of the relevant, real-life circumstances leading up to the “35+” project, its persuasive power dissolves completely. That crucial, undeniable context was acutely summarized by the former Court of Final Appeal judge, Henry Litton, in this way: “What Hong Kong faced [in 2019] was an insurgency, the overthrow of the government, nothing less.”

The author is an adjunct professor in the law faculty of Hong Kong University.

The views do not necessarily reflect those of China Daily.