Generation 40s – 四十世代

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Hong Kong’s rule of law has passed the Occupy test – so far

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South China Morning Post
Comment›Insight & Opinion

Cliff Buddle

Cliff Buddle says though tested by the illegal Occupy protests and related infractions, the rule of law remains intact in Hong Kong. In fact, it is all the stronger for having weathered the storm so far

The surrender to police by Occupy Central leaders brings their civil disobedience campaign to a symbolic end, almost
two years after it was first proposed. The pro-democracy protests, which they long ago lost control of, still occupy Hong Kong streets. But, as the police continue clearance operations amid waning public support for the protests, we are surely reaching the end of this extraordinary chapter in Hong Kong’s history.

There has been much discussion, over the nine weeks of protest, about the impact of the Occupy movement on Hong Kong’s rule of law. We have, regrettably, seen violent clashes on the streets, with protesters, their opponents and the police all culpable at times. There has been sustained breaking of the law, through the occupation of the streets, causing businesses to suffer and people to be inconvenienced. And, amid a political deadlock, our courts have been dragged into the affair.

The rule of law has been sorely tested. But I suggest it has passed that test and will, if anything, emerge stronger from these difficult times.

The term “the rule of law” is bandied about as if it only has one meaning. But it is open to different interpretations. Core elements of Hong Kong’s rule of law include government power to be limited by the law and the law to apply equally to everyone. There must be adequate legal protection of people’s rights and disputes are to be decided freely and fairly by an independent judiciary. There is much more to the concept than simply obeying the law.

Judges in the United Kingdom have disagreed on the question of whether civil disobedience is compatible with the rule of law. It is clear, however, that breaking the law is not, in itself, a threat to the rule of law.

Even widespread illegality need not necessarily undermine it. The occupation of the streets is not the only example of this in Hong Kong. Two years ago, all the talk was of illegal structures in flagrant breach of building regulations. Warnings were issued to 200,000 owners of village houses. Then we have smoking in public places, idling engines, unlawful dumping in the New Territories and illegal parking. While Hong Kong deserves its reputation as an orderly and lawful place, we are no strangers to widespread breaking of the law.

The nature and scale of the Occupy protests presents more of a threat. There was always the danger that prolonged occupation of key parts of Hong Kong would lead to violent clashes. People affected by the protests sought to take the law into their own hands. Opponents – some of them triad gangsters – attacked demonstrators and members of the transport sector sought to remove barriers themselves, sparking clashes. Then, on Sunday, masked men supporting the protests tried to force their way into government headquarters. There have also been examples of police violence and abuse of power.

A widespread breakdown of law and order would threaten the rule of law. But that is not what we have seen. Most of the protesters have remained peaceful. There has been no looting or rampant damaging of private property. It has been possible, for much of the past nine weeks, to stroll through protest sites without feeling unsafe. On the whole, this has been a peaceful form of civil disobedience.

We have also seen Hong Kong’s rule of law at work during the protests. There have been many arrests and court appearances for those alleged to have broken the law.

One notable court hearing was that involving Joshua Wong Chi-fung, student group Scholarism’s 18-year-old leader, who was freed by a High Court judge after being detained by police for more than 40 hours. The judge granted a writ of habeas corpus, an ancient legal safeguard against arbitrary detention. It was a striking example both of the government being subject to the law and this being enforced by an independent judiciary.

The protests have adversely affected the rights of business owners and others. But the courts have granted injunctions to private parties wanting certain streets cleared. Bailiffs have executed those court orders with the help of the police. While the rights and wrongs of the court decisions are, as always, open to debate, the legal process has followed its course.

The government has largely tolerated the protests, but it seems its patience is now running out. By not moving in earlier to clear the streets, it has allowed views to be aired and the protesters to make their point. Thankfully, fears that the central government would send in the People’s Liberation Army to clear the streets have not been realised.

Under the Basic Law, Beijing can apply national laws to Hong Kong if the National People’s Congress Standing Committee declares a state of emergency in the city, perhaps as a result of turmoil. However much disruption the Occupy movement has caused, it – rightly – has not been deemed serious enough to fall into that category.

What the Hong Kong government has not done is reach out to the protesters to see if a peaceful end can be achieved through dialogue. There was a televised debate, but this was not sufficient. There is a need for engagement and, indeed, for a much more inclusive approach by the government to constitutional reform if we are to move forward.

The Basic Law, which also brings into play the International Covenant on Civil and Political Rights, seems to envisage a more liberal form of universal suffrage than the one shaped by the NPC Standing Committee decision that sparked the protests. Upholding that promise is also important if the rule of law is to prevail.

The surrender to police of the Occupy leaders may be seen as a political stunt or, perhaps, a genuine attempt to help bring the protests to an end.

But the symbolism is important. Occupy leaders have always said their civil disobedience campaign would involve breaking the law and that they would accept the consequences. This is in keeping with the rule of law, not a breach of it.

Cliff Buddle is the Post’s editor, special projects


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