'Occupy Central' at odds with principles of civil disobedience

Updated: 2014-11-17 07:08

By Thomas Chan(HK Edition)

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What is the rule of law? Is it a universal principle applicable indiscriminatingly to the whole population of society? Or is it simply a convenient political excuse to be used only selectively on a partisan basis? To the students of politics, in particular those who claim to be acknowledgeable on democratic practice in Europe and North America, the latter position is not only an anachronism against the evolution of the legal tradition in both traditions of common law and continental/civil law, it is also outright undemocratic in its implications and consequence.

The universalistic nature of the rule of law requires the submission of all citizens, irrespective of race, religion, political belief and social and economic status. The many revolutions in European societies in the last few centuries have tried to restrict the categories of people in a society/nation that are not entitled to the protection and punishment of the rule of law. The rule of law represents universal reason as established in the West during the era of the Enlightenment and has been considered as the essential element, and indeed the foundation, of the concept of modernity that has prevailed in the past centuries and has been regarded as the goal to be achieved even by non-Western societies: It is considered therefore not Euro-centric but universal for all societies.

We may criticize the hypocrisy of the West in the practice of the rule of law, especially when it is introduced to non-Western societies. It is however difficult to dismiss the concept altogether. In fact, even in the imperial legal codes of China, as well as those of other civilizations, there had long been a strong sense of universality in the rule of law: a means to restrict the imperial power and to protect the citizens and the country from unreasonable impeachment of law by the powerful.

'Occupy Central' at odds with principles of civil disobedience

In Hong Kong, whether under colonial rule or since 1997 under the Chinese "One Country, Two Systems" regime, the universality of the rule of law has been enshrined and honored. It has never been challenged except for a very short period during 1967 riots when the legitimacy of British colonial rule was questioned. The 1967 case showed that any challenge to the rule of law is in fact a direct challenge to the legitimacy of the regime, and it is inevitably revolutionary in nature and violent in form. The 1967 case was a tragedy and a political mismanagement that both the British and China subsequently tried to avoid, but it remains an example, and a cautionary note as to what any direct challenge to the rule of law in Hong Kong might lead to.

"Occupy Central" has been promoted as an act of civil disobedience. But civil disobedience is always passive in the sense that the resistance to certain laws of the government is not provocative and accepts the need to submit to the rule of law at the end of the day. Even in Mahatma Gandhi's case against British colonial rule in India, his followers were required to never get angry or retaliate, submit to the government's orders and assaults, submit to arrest, surrender personal property when confiscated, refrain from swearing and insults, and protect officials from insults and assaults.

In the one and half months of the "Occupy" protests, despite the claim for "love and peace", these rules have invariably been violated rather than observed. Civil disobedience should have its well-focused target. If the goal is not to overthrow the present regime or change the present administration of the government, and thus not revolutionary in nature, unlike the case of Gandhi, the target will then be certain laws and policies, not a sweeping denial of all laws and policies of the government.

However, the demands of "Occupy" protesters have been shifting. At one stage they asked for a change of the decision on Hong Kong political reform, which had been made by the National People's Congress Standing Committee (NPCSC), in which case it seems wrong to stage the civil disobedience in Hong Kong rather than in Beijing. At another stage they called for the resignation of the Chief Executive and his senior officials, thus turning a civil disobedience movement into a political campaign. The occupation and barricading of major thoroughfares in Hong Kong Island and Kowloon are also unrelated to their demands, if one accepts any one of them. Their moves have hurt ordinary road users, citizens and traders. Civil disobedience should not hurt other citizens; the target should be the government. It seems the organizers and protesters have turned to hijacking society as a whole in order to pressure the government. This is political struggle, not civil disobedience.

It is argued that political issues have to be resolved by political means. The actual message the protesters have delivered is that the government should not implement the rule of law against them and should negotiate with them for a solution. This step also deviates far from the idea of civil disobedience. The main political issue is the eventual passing of the government bill on political reform in the Legislative Council (LegCo). Those political parties behind the "Occupy" movement feel that they may lose the vote in LegCo. So the so-called civil disobedience is employed to preempt the voting, by forcing the government to change the undrafted bill to fit their demands. If the rule of political issues is to be resolved by political means, the battle should be staged in the LegCo by means of negotiation and lobbying. The present extra-political approach is, essentially, an act to denounce democratic procedure and voting in the legislature and give up on the legislative process altogether. If policies must always be decided on the streets, through demonstration, sit-ins and blockading roads, the entire political mechanism of the SAR government, including its rule of law, collapses. It degenerates into the politics of the mob, a show of radicalism and repeated breaches of the law. That's when the situation is close to anarchy. It is never an act of civil disobedience.

Leaders of some local political parties have put forth the worst arguments lately; they said they would not obey the laws if those laws served a brutal government. This amounts to a declaration of war against the government and the rule of law it represents. However they have provided no evidence that Hong Kong's present administration is anything remotely resembling a brutal government; in fact these leaders took part in previous Chief Executive elections.

The excuse that the government not answering their demands, which are always shifting, ambivalent and beyond the constitutional authority of the SAR government, justifies their disobeying any law is totally unfounded and unconvincing. Unless they directly challenge the legitimacy of the government and declare themselves to be doing so, the current administration must uphold the rule of law as should everyone in Hong Kong including the "Occupy" protesters, some of whom are legal practitioners. They are not above the rule of law. What makes them believe they are superior to the ordinary citizens of Hong Kong and above the law of the city?

There are suspicions that those linked to "Occupy" intend to stage a "color revolution" for regime change in Hong Kong. Perhaps what they are doing now is preparing the stage for such an eventuality. But their public argument against the rule of law has exposed their secret aims. They are not social activists or political reformers. They are trying to be revolutionaries with ties overseas.

The writer is director of Public Policy Research Institute and head of China Business Centre at the Hong Kong Polytechnic University.

(HK Edition 11/17/2014 page9)