Which side is undermining the rule of law: protestors or the government? (Michael Davis)

[Mar. 3, 2015]

Student leader seeks judicial review on electoral reform

Yvonne Leung, a standing committee member of the Hong Kong Federation of Students, has lodged an application in the High Court for a judicial review on the second round of consultation on constitutional reform.

As student leader seeks judicial review, chief secretary insists restarting process is ‘unrealistic’

In a judicial review application filed yesterday, student leader Yvonne Leung Lai-kwok argued the local government had “misdirected” by relying heavily on the NPCSC decision. “Such matters [in the NPCSC decision] have no legal effect and are not legally binding to the institutions of HKSAR,” she said in the writ. “This is because these matters fall outside the scope of the provisions of the Basic Law and the 2004 NPCSC Interpretation.” She said that under the interpretation all the NPCSC could do at this stage was to say if there was a need to amend the electoral method, and no more. The High Court should therefore quash the second round of public consultation and order the government to restart it, she said.

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Occupy protests breaking law, but not undermining Hong Kong’s rule of law

Do protesters using civil disobedience to promote democracy and better secure Hong Kong’s core values pose the risks to the rule of law that officials and pro-government lawyers claim? It is important here to distinguish between breaking the law and undermining the rule of law. The non-violent protesters have clearly broken the law by not complying with the Public Order Ordinance and, further, by not clearing those areas covered by court orders. Both are purposeful law-breaking in furtherance of a non-violent civil disobedience campaign. We should bear in mind that civil disobedience by definition involves breaking the law in support of a higher ideal that is the aim of the civil disobedience campaign… By putting the Standing Committee above the law and redefining basic human rights guarantees in an unrecognisable manner, the State Council and the Standing Committee have put Hong Kong’s high degree of autonomy and rule of law in jeopardy. The failure of the local government to guard Hong Kong’s high degree of autonomy and its seemingly complicit role in the Standing Committee’s decision implicates it as well…

Disobedient civilians pale in comparison to blatant violation of guarantees in Basic Law  Denial of genuine vote harms rule of law more: Legal expert

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November 21, 2014 Davis speaks to RTHK’s The Pulse.

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Dec. 2, 2014 Hong Kong government must face up to responsibilities on human rights http://www.scmp.com/print/news/hong-kong/article/1653389/hong-kong-government-must-face-responsibilities-human-rights

As court orders, followed by more aggressive police tactics, seek to clear the streets in Mong Kok and Admiralty, the non-violent civil disobedience campaign in Hong Kong has reached a climax. For two months, the protesters have impressed the world with their peaceful sit-ins. Allegations that they are undermining the rule of law have met with scepticism. In this moment of difficulty, we should not lose sight of the fact that primary responsibility for maintaining the rule of law rests with the government. The administration cannot simply hide behind civil court orders and police powers in exercising its responsibility. How it tackles the many problems with the underlying reform process will be crucial…..

On Nov. 3: Lawyers say Occupy protests are undermining Hong Kong’s rule of law

Many Hong Kong people, including the protesters, are starting to lose their patience with continuing protests. Even democratic supporters would like to see protest leaders explore different strategies to keep pushing this important cause. (See What’s next?) But at the same time it should be appreciated that the occupied areas have shrunk over the past month and the society has largely adapted to these obstructions in their daily routines. Cries of economic disaster due to the occupy movement have largely proven false (see “hurt the economy?) . At this juncture it is important to recall that any immediate inconvenience due to continuing occupation pales in comparison to the fundamental damage done to Hong Kong in the roll back of Hong Kong’s autonomy, democracy and rule of law in the White Paper and NPS Standing Committee Decision.  As a professor who teaches our young people about the foundations of our legal system I have been amazed at how clearly our young people, even at the secondary level, have appreciated the risks these Beijing decisions entail. If pro-Beijing lawyers want to do a special service for our community they could accomplish much more by using the access to Beijing and Hong Kong Government leaders they enjoy to better convey the concerns so eloquently raised by Hong Kong’s young people.

Re: You’re tearing us apart, former Hong Kong leader Tung Chee-hwa tells protesters

CH Tung (a vice-chairman of the Chinese People’s Political Consultative Conference) again accused protesters of undermining the rule of law. We frequently hear accusations of protesters violating the rule of law. Of course, this accusation alone demonstrates a lack of understanding of that term. A civil disobedience movement typically violates the law, not the rule of law. We might speak of people undermining the rule of law. But if that is the accusation then clearly a government that takes great liberty with the constitutional text and frequently misrepresents its human rights policies may more reasonably be accused of undermining the rule of law. The rule of law requires that nobody is above the law and everyone is subject to the law applied in the ordinary manner. Claiming a vetted election conforms to the notion of universal suffrage when it clearly does not is an example of taking great liberty with constitutional human rights protections. Then accusing those who insist on compliance of undermining the rule of law is a bit rich.

The Bar is correct that courts have struggled over how to treat civil disobedience. Scholars have argued that tolerance should be greater in the face of a lack of democracy. Judges, no doubt struggle with the competing values involved. In Hong Kong attacks on protesters for undermining the rule of law would not ring so hollow if the Central and Local government had not made mincemeat out of the rule of law in the White Paper and the NPC SC decision. A few protesters engaged in civil disobedience to defend Hong Kong’s autonomy and rule of law are small potatoes compared to a regime that essentially proclaimed itself above the law in the White Paper and then proceeds to act upon that proclamation in the NPC SC decision to deny the promised universal suffrage. If words like universal suffrage and high degree of autonomy are meaningless how can the public even know what is guaranteed in the Basic Law until Beijing puts its expedient spin on it. That our local government has not seen fit to defend Hong Kong’s autonomy, with further consequences for the rule of law, is of even greater concern. These are clearly the conditions where tolerance for civil disobedience should be at its highest.
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The ‘rule of law’ is a concept at the very heart of the Organizationís mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

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[Nov. 9] The High Court ruled that the police can arrest Occupy Central protesters who defy bailiffs trying to clear their sit-in sites in Mong Kok and Admiralty. Police can arrest protesters who obstruct bailiffs, High Court rules. The Court order is available here.
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Lord Goldsmith QC speaks on the rule of law at C H Tung’s Our Hong Kong Foundation Inauguration Ceremony on 10 November 2014. Interesting that he agrees with activists scholars and lawyers rather than Tung. See  Interpreting the rule of law or watch his video.
“A civil court process was being invoked for what I feel is a public order issue.” He was “intrigued” by the actions and the fact the case was first heard on an ex parte basis, meaning the party affected was not present to defend the action. “The process of going to a court to seek an order behind the back of a person to be affected by the order is a most drastic remedy, because the unvarying principle of common law is no one’s interest should be affected without having been given an opportunity to be heard.”
Leonard Hoffmann likewise commented that civil disobedience has not damaged the rule of law: http://hk.apple.nextmedia.com/news/art/20141205/18958515 and http://www.post852.com/再有終院法官稱%E3%80%80佔領運動「現階段」未損法治/

[Jan. 12, 2015] Pearl Report Law & Disorder http://programme.tvb.com/news/pearlreport/episode/20150112/

[Jan. 12, 2015] Clash of views over the rule of law at the opening of the legal year 2015: Hong Kong’s legal big guns tussle over rule of law http://www.scmp.com/news/hong-kong/article/1678651/no-room-politics-judiciary-says-hong-kongs-top-judge-speech-extolling; Rule of law: Different strokes http://www.ejinsight.com/20130113-rule-of-law-what-it-means-for-people-and-the-govt/

The previous chair of the HK Bar Association Paul Shieh said:

there was an increasing tendency on the part of the executive in Hong Kong, in its public statements, to emphasise the “obey the law” aspect of “Rule of Law”. Comical it may sound, the Government in Hong Kong has become accustomed in recent years to preface almost every description of what it does by the phrase “doing so according to law”. For example it would say that elections to the legislature had been held according to law, police had arrested suspects according to law, the Government governs Hong Kong according to law, policies are formulated and implemented according to law. Everything is done according to law…

In fact it can be said that over-emphasis of the “obey the law” aspect of “Rule of Law” is the hallmark of a regime which is keen on using the law as a tool to constrain the governed, rather than as a means to constrain the way it governs…

in a system without a truly independent judiciary and where laws are arbitrarily enforced, the judiciary and the executive “co-operate” to ensure that laws are interpreted in a way preferred by the executive and are used to suppress persons or entities who do not find favour with the Government. This is often dressed up as “Rule of Law”, but is in fact “Rule by Law”. “Do things according to law” means “do things according to our will”.

Interview in Cantonese: https://www.facebook.com/video.php?v=696034743842116&set=vb.287013041410957&type=2&theater

In simple terms, the rule by law = rulers above the law; as opposed to the rule of law = rulers subject to the law.
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The concepts of public security and the rule of law should not simply be interpreted as meaning executing or obeying the law, exam authorities say in a report on this year’s secondary school exams… its response seems to go against what many government officials’ and pro-establishment politicians have said about the Occupy Central civil disobedience protests, which they say undermine Hong Kong’s public security and the rule of law.
The Examinations and Assessment Authority’s report is publicly available at http://www.hkeaa.edu.hk/en/
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See also:

Discussion on rule of law with Martin Lee & Dixon Sing

A Forum Organised by Faculty of Law, The University of Hong Kong

The Umbrella Movement: Unfolding the Rule of Law
Wednesday, 12 November 2014, 2.30pm – 4.30pm

林行止:香港難保普通法法治傳統 https://thestandnews.com/politics/林行止-香港難保普通法法治傳統/

Now that HK is losing the rule of law, it needs its share of “rights defense lawyers” as in mainland China:  法治既逝,維權須啟 —— 香港需要維權律師
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4 Comments

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4 responses to “Which side is undermining the rule of law: protestors or the government? (Michael Davis)

  1. Pingback: Which side is undermining the rule of law: protestors or the government? (Michael Davis) | Hong Kong's Umbrella Movement

  2. Pingback: HK protestors and American slaves | Hong Kong's Umbrella Movement

  3. Pingback: What’s next — Umbrella Movement into the second month | Hong Kong's Umbrella Movement

  4. Pingback: The “Freedom without Democracy” model is broken — why HK needs genuine universal suffrage | Hong Kong's Umbrella Movement

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