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Occupy Central

With jailing of Joshua Wong and fellow activists, civil disobedience loses its allure in Hong Kong as rational thought returns

Tian Feilong says from the start, the political concept of civil disobedience did not befit the circumstances in Hong Kong, and the local version of the movement proved to be a dud, but with disastrous consequences

PUBLISHED : Thursday, 31 August, 2017, 5:02pm
UPDATED : Thursday, 31 August, 2017, 7:09pm

In recent days, the Hong Kong judiciary has underlined its intention to protect public order. First, Joshua Wong Chi-fung and two other young activists received tougher penalties for their involvement in an Occupy Central-related protest. Then, the Court of Final Appeal rejected a final bid by ousted pro-independence lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching to regain their Legislative Council seats.

To a certain extent, the second case is the result of the first. After all, the Occupy protests fostered the rise of radical localism and undermined the rule of law.

Beijing understood the seriousness of the situation, but could not directly address the problem because of the “one country, two systems” constitutional framework set out in the Basic Law. Thus, the judiciary’s response was vital.

In the Occupy case, the magistrate overseeing the sentencing was sympathetic to the protesters’ motivation, and said there were grounds for leniency as they were driven by their ideals to break the law. But her sentences of community service orders for two offenders (and a suspended jail term for the third) only had the effect of fanning radicalism, undermining the city’s rule of law. Thus, the Court of Appeal’s decision to jail the activists, and the top court’s refusal of Leung and Yau’s appeal, reflected the judiciary’s awareness of the public order crisis and its rational move to shoulder the constitutional responsibility.

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In its decision to jail the activists, the Court of Appeal made clear there were no grounds for breaking the law to achieve a social goal.

Can breaking the law ever be justified? Hong Kong’s pro-democracy protesters have put their trust in the Western protest tactic of civil disobedience, and believe they could break the law to achieve a higher constitutional goal.

Not only was civil obedience a poor fit in Hong Kong, but the local version also deviated from some of its traditional principles

Historically, civil disobedience has been used as a tool to raise social awareness and accelerate institutional development, from Henry David Thoreau’s refusal to pay his taxes to protest against the Mexican-American war and the expansion of slavery in the 1800s, to the civil rights movement in America, the non-cooperation movement in British India and the anti-apartheid movement in South Africa in more recent times.

So when the advocates of universal suffrage in post-handover Hong Kong saw their moderate push going nowhere, some in their camp began to regard civil disobedience as a powerful tool that could be deployed as a “nuclear deterrent” in negotiations with Beijing, to try and ease the restrictions imposed on Hong Kong elections. In early 2013, Benny Tai Yiu-ting, an associate professor of law at the University of Hong Kong, effectively launched Hong Kong’s version of a civil disobedience movement by publishing the article, “The Most Lethal Weapon of Civil Disobedience”, in the Hong Kong Economic Journal, ushering in the Occupy Central protest movement.

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Today, many young people, including Joshua Wong, are paying the price for their involvement in Occupy, having been charged or convicted. Increasingly, Hongkongers from different walks of life, including those in the legal profession, are becoming aware of the misuse here of the theory of civil disobedience and the harm of Tai’s tactic. Tai himself is facing charges related to the protests.

Not only was civil disobedience a poor fit in Hong Kong, but the local version also deviated from some of its traditional principles. First, Hong Kong is a highly developed capitalist society, where democracy is advancing in an orderly way under the Basic Law. There were no serious constitutional defects or any political tyranny to warrant the use of civil disobedience.

Second, the Occupy organisers mobilised young people, even underage secondary school students, to join the front lines, and used them as a shield to dodge their own responsibilities. This runs counter to the noble spirit of civil disobedience.

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Third, the Occupy organisers ignored the constitutional authority of the Basic Law and the “one country, two systems” principle. This defies logic as civil disobedience advocates generally keep faith with higher constitutional principles, and use them as a basis to criticise unjust laws. Moreover, the Occupy organisers put forward demands for universal suffrage which do not comply with the Basic Law.

In short, civil disobedience does not have widespread support in Hong Kong. Nor is the concept deeply rooted in local academia. As became clear, it was a conceptual tool used in a social experiment by a few elite members of society.

Neither Hong Kong society nor the government knew how to deal with it. Thus, by claiming they were fighting for universal suffrage, the Occupy organisers found it easy at first to win public support both at home and abroad, with some dire political consequences.

Can a civil disobedience movement ever succeed in Hong Kong?

On the one hand, young people have become more radical, as they think they have the right to protest, fanning the rise of localism and independence advocacy. Some have formed groups after Occupy, finding voice on the local stage and even acting as international spokespeople for the political opposition here. On the other hand, Occupy has led Beijing to be even more cautious about the development of universal suffrage in Hong Kong. If there hadn’t been growing support for such a movement, the electoral framework set out by the National People’s Congress on August 31, 2014 may well have been less strict.

As a result of these developments, hopes of a compromise on political reform have dimmed.

Over time, however, Hong Kong’s legal professionals have become more aware of the theoretical flaws and negative consequences of this Hong Kong-style civil disobedience, and are now more critical of it.

In the midst of the Occupy protests in 2014, the Bar Association issued public statements to explain its views on the philosophical tradition of civil disobedience and its relation to the rule of law, cited precedents and warned that, by deliberately flouting a court injunction, the Occupy protesters risked damaging the rule of law. However, the warning was not taken seriously.

Watch: Three prominent Occupy student leaders jailed for storming government buildings

Politics played no part in Hong Kong court’s decision to jail young activists

More recently, in response to fierce criticism of the Court of Appeal decision to jail Wong and company, the Bar Association and Law Society issued a joint statement to defend Hong Kong’s judicial independence.

In separate media interviews, former Bar Association chairman Paul Shieh Wing-tai also rejected criticism that the ruling amounted to political persecution, pointing out that those who took part in civil disobedience should be prepared to pay the price for breaking the law. Paraphrasing Mao Zedong when noting that “civil disobedience is not a dinner party”, Shieh said Tai bore responsibility for encouraging unrealistic expectations of what the movement entailed.

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As set down in the Basic Law and framed by the “one country, two systems” principle, the Hong Kong constitution bears the hallmarks of the conservatism of British common law; it emphasises the importance of representation, ethical responsibility, political ethics and equal participation, while rejecting unchecked populism. The Hong Kong brand of civil disobedience is not academically rigorous in theory, relied too much on the support of the young in practice, and undermines the rule of law in consequence.

The ruling to jail Wong and company marked a return to a conservative rationality backed by the rule of law.

Tian Feilong is an associate professor at Beihang University’s Law School in Beijing, and a director of the Chinese Association of Hong Kong and Macau Studies