Melbourne Law School - Theses
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ItemPolitical dissent, law and legitimacy in China's Hong Kong( 2023-11)Hong Kong’s mass protest movements of the 2010s triggered clampdowns on fundamental rights, the closure of the political system, the denunciation of politically incorrect ideas, and the retreat of regional autonomy in favour of sovereign state power. This research challenges mainstream claims that Hong Kong’s rule of law was in good health during this period. It argues that by 2020 Hong Kong’s once-trusted legal institutions had reached a crisis of legitimacy due to sustained pressure from authoritarian politics. It substantiates the argument via an examination of law’s interactions with, and responses to, political dissent. Legitimacy, the extent to which an entity rightfully exercises its power, is central to the thesis. Drawing on literature on political legitimacy, democracy and authoritarianism, and the rule of law, I propose an original, multifaceted model for political and legal legitimacy. It comprises two main categories, intrinsic legitimacy and consequential legitimacy—or legitimacy drivers and effects—the presence or absence of which is indicative of an entity’s legitimacy. I posit that democratic systems have greater intrinsic legitimacy, largely derived from consent, and consequential legitimacy, with benefits including stability and liberty, compared with authoritarian systems where dissent and its suppression indicate illegitimacy. Legal legitimacy rests on comparable bases, with adherence to rule of law principles being a particularly important component of intrinsic legitimacy, and consequential legitimacy including rights protection and moderation of executive authority. Chapter 1 introduces the research and provides background on Hong Kong. Chapter 2 explains and justifies the analytical framework and outlines the legitimacy models of China and Hong Kong. The next four chapters are case studies of conflict, whereby political dissent triggering a politico-legal state response with legitimacy implications. Chapter 3 examines the use of national symbols to express dissent. It argues that contrary legislation protected an ideocratic authoritarian aesthetic lacking legitimacy in Hong Kong. The courts upheld that legislation in deference to political power, facilitating further repression and diminishing their rights-protection and independent institutional credentials. Chapter 4 considers protests before and during the 2014 protests, then before and during the 2019 protests. It argues that public order legislation, police conduct and political intransigence were contrary to norms and expectations shared by Hongkongers and the international community. The courts’ inconsistent record upholding protest freedoms and regulating contentious politics diminished their authority. Chapter 5 charts the state’s efforts to close down political opposition, demonstrating a retreat from democratic to authoritarian political ideals. In the face of executive power, the courts were unable to maintain their independent authority, and their rationalisation efforts rendered them agents of state authority. Chapter 6 completes the picture of a judiciary powerless to limit the state’s deployment of exceptional measures despite the excessive nature and popular rejection of those measures. The thesis concludes that Hong Kong’s legal apparatus, under pressure from authoritarian politics, wavered in its commitment to upholding rights and regulating power, detracting from its legitimacy, while fidelity to law’s technical requirements in furtherance of a repressive, undemocratic political agenda was also damaging to legal legitimacy.
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ItemWays of remembering: law, cinema and collective memory in the new India( 2018)This thesis explores the relationship between secular law and religious violence in contemporary India from a ‘law and aesthetics’ perspective. It offers an inquiry into and expands the understanding of secular law’s public life, by reading two narratives of collective memory produced in the wake of the 2002 Gujarat pogrom—postcolonial India’s most litigated and mediatized event of anti-Muslim mass violence. The first is a ‘factual’ narrative, contained in the texts of the judgments in the Best Bakery case (a key criminal trial related to the massacre of a Muslim family in Vadodara); and the second is a ‘fictional’ narrative captured in the images and sounds of three Bollywood films (whose plots prominently feature the pogrom). These two narratives—which are located both inside and outside conventional sources of law—have had a shared temporal journey. The three films span a period of nine years (2004–13), which closely coincides with the years through which the trials in the Best Bakery case ran (2003–12). Focusing on this post-pogrom decade, the thesis develops a ‘jurisprudential-aesthetic’ approach as an interpretive lens which treats the factual and the fictional as co-constitutive of imaginations of justice that shape collective memories of the pogrom. My reading shows that a shared narrative of the judgments and films engenders ways of remembering the pogrom that condemn the violence while simultaneously rationalizing it as aberrant. Such a reading makes visible the workings of a particular kind of postcolonial state-making and state-preserving rationality that orders collective memories of the pogrom. The workings of this rationality sustain a collective memory in which the reason of secular law triumphs over the violence of religious irrationality, and keeps intact the state’s ideological anti-Muslim foundations. This is increasingly marked by the combined rise of neoliberalism and Hindutva (right-wing Hindu nationalism). By simultaneously condemning and rationalizing the Gujarat pogrom in collective memory, this shared narrative of law and cinema both conceals and continues to perform the role that secular law plays in enabling religious mass violence in the state-making and state-preserving project of Indian postcoloniality.
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ItemLaw, change and socialisation: constructing an account of the role of NHRIs in addressing systemic human rights violations( 2017)National human rights institutions (NHRIs) are domestic statutory bodies established with broad mandates to protect and promote human rights within states. Over two decades since NHRIs agreed to minimum standards for independent institutions and set them out in the Paris Principles, scholarship has moved from its initial focus on the design, form and proliferation of NHRIs to examining their effectiveness, accountability role and contribution to social change. In my thesis I set out to answer the question: what, and how, do national inquiries conducted by NHRIs contribute to the socialisation of international human rights norms? I answer this question by exploring how NHRIs in the Asia-Pacific have utilised national inquiries to address systemic human rights violations. I privilege the experiences of NHRIs in conducting national inquires and adopt a constructivist grounded theory methodological approach. I explore three thematic areas: an NHRI’s foundation in law, what (if any) change has occurred, and the socialising dynamic which facilitates it. I analyse the mandate, functions and powers granted to NHRIs in their founding legislation including their capacity to undertake a national inquiry. I develop an anatomical conceptualisation of the national inquiry process to document the common procedural approaches taken by NHRIs. I begin my examination of the change created by national inquiries with the Mongolian Commission’s national inquiry on torture. From interviews with commissioners and Commission staff, judges, lawyers, prosecutors, police, prison guards, civil society representatives and leading NGOs, academics and donors I construct an account of the national inquiry process and the change it created. I also consider the change created by national inquiries in three jurisdictions across the Asia-Pacific. Focusing on process and impact, I review the Indian Commission’s national inquiry on the right to health care, the New Zealand Commission’s national inquiry addressing transgender discrimination and the Australian Commission’s national inquiry on the forced removal of indigenous children from their parents. I then analyse the socialisation processes evidenced through the national inquiries examined in the preceding chapters. I find that there are four core characteristics of the national inquiry which contribute to socialisation: a foundation in law, a relational dynamic, its public nature and orientation towards change. This complex socialisation process is a long-term project, and a national inquiry can be an influential part of it. While there are barriers to change and uncertainty about the extent of NHRI impact, the evidence does permit cautious optimism: national inquiries conducted by NHRIs offer an avenue to foster progressive and incremental domestic socialisation of international human rights norms.