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La profession dans le monde
Update on the Occupation Movement and the Rule of Law in Hong Kong
by Paul Shieh
Chairman of the Hong Kong Bar Association
The recent “Occupation Movement” (or Umbrella Movement) in Hong Kong started off by an article written an associate of law at the University of Hong Kong, Benny Tai, in an article in the Hong Kong Economic Journal (an influential newspaper) in January 2013.
The thesis of the article was simple – the Central People’s Government (“CPG”) of the People’s Republic of China was unlikely to allow Hong Kong people genuine universal suffrage in electing their Chief Executive in 2017. In order to influence or persuade the CPG into allowing genuine universal suffrage, Tai proposed a massive campaign of civil disobedience whereby participants would peacefully “Occupy Central” (being the main business district in Hong Kong) with a view to paralyzing it and causing inconvenience and economic damage. It was proposed by way of a threat, and it was contemplated that the “occupation” would not be resorted to except as a last resort.
The article then gathered momentum. Reverend Chu Yiu Ming and Professor Chan Kin-Man (the latter of the Chinese University of Hong Kong) joined forces with Tai and they became known as “the three sons of Occupy Central”. Democratic politicians supported the movement. There was widespread discussion for over a year from 2013 to 2014 as to when it would be most appropriate to occupy Central (“OC” in short) and how to do it, and whether it should be done at all. The Hong Kong Government and the Mainland Government took a hard line: anything which is “against the law” will not be tolerated. The proponents tried to educate the public about the virtues and theoretical basis of civil disobedience, quoting examples of Ghandi and Martin Luther King Jr.
On 31st August 2014, the National People’s Congress Standing Committee (NPCSC”) promulgated a decision which defined the parameters of possible Chief Executive elections in 2017. It was regarded by many (including the Hong Kong Bar Association) as placing unreasonable restrictions on Hong Kong residents’ right to elect and right to be elected. The democratic politicians immediately vowed to veto the proposal. Meanwhile, the “Three Sons” suggested 1st October (China’s National Day) as the date on which OC would commence. At the same time, student bodies organized class boycotts and held large scale public rallies assemblies near the Government headquarters. In the early morning of 28th September 2014, Benny Tai declared the commencement of OC, three days earlier than planned.
The police used tear gas to disperse the peaceful crowds on 28th September 2014. This provoked a serious backlash and the “occupation” extended to other regions in Hong Kong including Causeway Bay and Mongkok. A few main roads had to be blocked off. The prolonged occupation was unlawful.
The “occupation” in various areas then continued for a few weeks. There were increasing noises from various quarters that the occupation was unduly disruptive of people’s daily lives. The occupants apologized for such disruption but counter-argued that such disruption and inconvenience is a necessary and proportionate price to pay for democracy. The situation was made more complicated by the fact that by then, there was no commonly recognized “leader” of the movement. None of the Three Sons, the student organizers or politicians of the democratic camp can claim to enjoy any mandate to decide on the future course of the movement – many participants were self-motivated.
While the police undoubtedly possess public law power to disperse the occupant and to make arrests, the Police had not sought to exercise such powers. Instead, some private and commercial entities (a building owner and minibus/taxi companies) applied for (and obtained) civil law injunctions based on the tort of public nuisance. The injunctions contained detailed directions concerning the circumstances under which the bailiff may request assistance from the police in enforcement. They had been enforced with the aid of the bailiff and the police, but they only covered some of the occupied areas. The occupation of other areas continued.
A number of “Rule of Law” issues have arisen as a result of the movement.
The Hong Kong Bar Association has issued two public statements on some of these issues and they can be accessed at:
The first question is obviously the extent to which acts of civil disobedience are consistent with the maintenance of the Rule of Law. Civil disobedience is an immensely controversial political subject. This is particularly so in the present case because we are concerned not with “direct civil disobedience” (where one disobeys the very law that is being objected to) but, rather, “indirect civil disobedience” where one breaks an ordinary innocuous to protest against what perceived to be an unjust or unsatisfactory system. While some people subscribe to the view that anything that breaks the law is against the concept of the Rule of Law, some acts of civil disobedience had brought about positive results in history. The Hong Kong Bar Association did not regard it possible to make any general or sweeping condemnation of acts of civil disobedience simply because they “break the law”.
That said, there must be some limits to the way in which civil disobedience can be practised consistently with the maintenance of the Rule of Law. Each of the two statements of the Hong Kong Bar Association addressed a specific limitation.
First, legitimate acts of civil disobedience must be peaceful and must not cause excessive damage or inconvenience to others (cf. R v Jones [2007] 1 AC 136 at para 89 per Lord Hoffmann). It can legitimately be argued that days, if not weeks, of blockage of main roads had already caused excessive damage and inconvenience to others.
Second, in a system (like Hong Kong) with a truly independent judiciary and where courts have traditionally been held in high regard, acts of civil disobedience must not extend to disobeying an order made by the court. In such a system it is the Courts that one relies on to interpret the law and to protect one’s fundamental rights. Any disobedience of a court order, however much one disagrees with it, must constitute an affront and erosion of Rule of Law. Regrettably some politicians (many with legal training) and academics refused to accept this, and had been spreading the message that disobedience of civil court orders did not constitute an affront to the Rule of Law as long as it is “for a higher cause” and because “Rule of Law does not mean blind compliance with the law”. Any attempts to criticize the conduct of the participants in the movement in breaching court orders were immediately rejected or criticized (wrongly) by them (or by commentators sympathetic to them) on the ground that this is “Rule by Law” and not “Rule of Law”. There are many such views about “civil disobedience” which, albeit perhaps well intentioned, constitute (at best) partisan or (at worst) distorted views and which the Hong Kong Bar Association regards as necessary to put right in the minds of certain parts of the public.
Fortunately, in respect of perhaps the most important facet of the concept of the Rule of Law namely that of judicial independence, that has been unaffected by the movement. Courts remain completely independent from the executive and the public continue to repose trust in the courts as being able to adjudicate cases free from political influence. Once court injunctions were issued, the general consensus of public opinion was that however much one disagrees with the court order, they should still be complied with even in the context of a civil disobedience movement. When the movement began, a student leader was arrested by the police and not released for some time. He was eventually released upon a writ of habeas corpus issued by the court.
Looking forward, there are at least two ways in which the occupation movement has had an impact on the Rule of Law in Hong Kong.
First, it provoked society-wide discussions on the theoretical and thought-provoking concept of civil disobedience. This can be viewed in a positive and healthy light because over emphasis on merely “obeying the law” could be the hallmark of a “Rule by Law” society. Second, however, some sectors of the community had taken the matter to the other extreme and developed an unfortunate and distorted (some would say overly radical) view of civil disobedience, which would take some time and effort to put right by way of public education.
Lastly, and lest it be forgotten, the root cause of the movement was widespread public discontent (especially about the younger generation) about the way in which the 31st August 2014 placed unreasonable restrictions on the election rights of Hong Kong people. The fact that controversial means had been used to protest against the decision should not diminish the significance of this underlying cause. If this underlying cause is not properly addressed by the CPG and the Hong Kong Government, any temporary resolution of the Occupation Movement would, as many have said, be paper over cracks. And to address the underlying cause requires a good deal of political wisdom, humility and enlightenment on the part of the powers that be, and there is a limit as to what the law, or the “Rule of Law” can do in this regard.
Paul Shieh, Chairman of the Hong Kong Bar Association
