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Anti-Occupy Central groups protest outside the High Court as injunctions against Admiralty and Mong Kok occupiers were extended on Monday. Photo: Sam Tsang

Democracy can’t exist without respect for the rule of law

Ronny Tong says that without respect, the entire philosophy of the rule of law cannot flourish

Ask any lawyer to give a view on any topic and he will give you 10. Ask a good lawyer and he will probably give you 20. So the Occupy organisers today seem to be courting trouble by asking no less than five lawyers to give their views on something as nebulous as civil disobedience.

I said nebulous because if you care to look it up on the internet, you will find no definitive definition of civil disobedience.

In fact you will find there are as many views as there are different aspects of civil disobedience; from passive protest to active resistance; from pleading guilty to contesting guilt in a court of law; from protesting a law, to protesting a government policy, to protesting a government administration; even from something as fundamental as the use, or non-use of violence.

The difference of views appears to be infinite. But there is general consensus that at least one common factor can be found, and that is, a willingness to respect and accept the relevant legal system. That is the marked difference between civil disobedience and open revolt or armed revolution.

Note I said respect for the legal system, not a particular law. For although civil disobedience started out as a form of protest against a particular law, its proponents never advocate any form of escape from lawful punishment. A willingness to accept lawful punishment is the very essence of civil disobedience.

That in itself is a form of respect to the rule of law. Respect for the legal system is not so much as part of the content of the rule of law as the very foundation of it. For without respect, the entire philosophy of the rule of law cannot flourish.

This is quite different from respect for a particular law. Breaching a law is not necessarily an affront to the rule of law, although persistent and widespread disregard of a particular law can lead to an affront to the rule of law.

This is because no society in this world can boast of a crime-free environment. Every day, everywhere, at any time, there are people breaking the law; but that does not mean rule of law does not exist.

On the other hand, if you start disobeying a court’s decision, you are moving very close to challenging the legal system. You can disagree with a court decision; you may even openly criticise it; but you must comply with a court decision.

In doing so, you are not just complying with the wishes of a judge, but respecting the very office the judge is holding, which is an intricate part of the legal machinery. That legal machinery is what the rule of law all about. Without that, rule of law cannot subsist.

Some prominent public figures, themselves well known lawyers and advocates of civil disobedience argue that so long as participants ultimately turn themselves in and accept legal punishment, that is enough and the rule of law will not be harmed.

Such rhetoric suggests the speaker has confused or misunderstood the important difference between breaching a law and disobeying a court’s decision, which represents the very essence of the rule of law.

Before I leave this topic, I must also say a few words about persistent disobedience of a law and a court order. There is no doubt that widespread and persistent disobedience of the law is an affront to the rule of law. More so as regards a court order.

Someone said to me the other day that I should be happy that 75 per cent of people polled in Hong Kong said a court order must be obeyed. I cringed with fear and sadness. 75 per cent? What about the other 25 per cent? Can you imagine how many people that percentage will translate into? Two million!

I shudder to think what will happen to the rule of law if there are two hundred people defying a court order, let alone two million. I hope and pray the poll is wrong!

Recent events show not only we are not at all familiar with the very essence of democracy, which we never have been; but sadly, we are also not at all familiar with the very concept of the rule of law, which we all boast to be our core value and the fabric of this society we call home.

We must do more. Democracy cannot exist on its own; it goes hand in hand with the rule of law. We cannot, and must not, forsake one for the other. For democracy without the rule of law is but a political tyrant with a better name!