Hong Kong's Civil Disobedience Under China's Authoritarianism

• Citation: Vol. 35 No. 1
• Publication year: 2021
• topic: Civil Rights,Constitutional Law,Criminal Law

Hong Kong's Civil Disobedience Under China's Authoritarianism

Shucheng Wang

HONG KONG'S CIVIL DISOBEDIENCE UNDER CHINA'S AUTHORITARIANISM

Shucheng Wang^*

Abstract

Acts of civil disobedience have significantly impacted Hong Kong's liberal constitutional order, existing as it does under China's authoritarian governance. Existing theories of civil disobedience have primarily paid attention to the situations of liberal democracies but find it difficult to explain the unique case of the semi-democracy of Hong Kong. Based on a descriptive analysis of the practice of civil disobedience in Hong Kong, taking the Occupy Central Movement (OCM) of 2014 and the Anti-Extradition Law Amendment Bill (Anti-ELAB) movement of 2019 as examples, this Article explores the extent to which and how civil disobedience can be justified in Hong Kong's rule of law-based order under China's authoritarian system, and further aims to develop a conditional theory of civil disobedience for Hong Kong that goes beyond traditional liberal accounts. More specifically, it is argued that an act of civil disobedience targeted at the actions of the central government, which has no democratic accountability to the people of Hong Kong, is one aimed outside the domain of Hong Kong's autonomy, and is thus unlikely to succeed in the Hong Kong context. By contrast, an act of civil disobedience intended to push against the government of Hong Kong acting within its domain of autonomy largely fits into Hong Kong's semi-democratic system. Moreover, it is suggested that both forms of civil disobedience have had significant utilitarian value as a civic educational tool. Finally, this Article reconciles unlawful acts of civil disobedience with Hong Kong's rule of law by establishing clear limitations on permissible conduct, with particular attention paid to non-violence as a fundamental condition, albeit without excluding the use of limited forms of violence as an appropriate strategy, e.g., to invigorate political participation, in particular when available democratic and peaceful channels have been exhausted.

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Keywords: civil disobedience; civic education; Hong Kong; rule of law; authoritarianism

Introduction

Questions regarding the justification and ethics of civil disobedience have long perplexed academics. It was even claimed that, after Martin Luther King Jr was assassinated, civil disobedience was no longer relevant to life today and thus likely to die out.¹ However, it is very clear that this is not the case for Hong Kong. For example, it is widely accepted that the Occupy Central Movement (OCM) in 2013 was a civil disobedience movement in which leaders mobilized protesters to stage a mass sit-in in order to blockade Hong Kong's Central District; the aim of this movement was to force Beijing to give the people of Hong Kong what they demanded, namely genuine universal suffrage.² In other words, the OCM intended to pressure China's Central Government into withdrawing the framework it had proposed to govern the election of the Chief Executive of Hong Kong. Instead it compelled it to adopt an electoral system that was in accordance with international standards of universal suffrage with respect to the civic nomination for the election of the Chief Executive.³

Furthermore, the ongoing Anti-Extradition Law Amendment Bill (Anti-ELAB) movement has aimed to oppose the enactment of the Fugitive Offenders and Mutual Legal Assistant in Criminal Matters Legislation (Amendment) Bill 2019 ("the Bill") proposed by the Hong Kong government.⁴ The Bill allows fugitives to be transferred to the jurisdiction of Mainland China for trial. Initially, the Bill was proposed in response to a case in which a felon had flown to Hong Kong from Taiwan and could not subsequently be extradited due to the lack of relevant agreement between the two jurisdictions.⁵ Although extradition had been practiced in the past between Hong Kong and other Commonwealth jurisdictions, there was no extradition agreement between Hong Kong and

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Mainland China.⁶ However, the protesters feared that if the Bill passed, residents of Hong Kong and other foreign individuals could be sent to Mainland China and subjected to politically motivated persecution and subsequent unfair trial.⁷

It cannot be denied that the Anti-ELAB movement has been involved with acts of civil disobedience, sometimes even including violence in addition to these lawful protests.⁸ For example, in the three-day, citywide strike at the beginning of August 2019, protesters stormed highways, blocked the Cross-Harbour Tunnel, and occupied the airport; among other actions, marches have frequently escalated into violent clashes with police.⁹

Needless to say, civil disobedience is an issue that has been frequently discussed in literature.¹⁰ According to John Rawls' seminal definition, it is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government."¹¹ Moreover, in justifying civil disobedience, "one invokes the commonly shared conception of justice that underlies the political order. It is assumed that in a reasonably just democratic regime there is a public conception of justice by reference to which citizens regulate their political affairs and interpret the constitution."¹² Of course, this definition has been hotly debated and even challenged by subsequent scholarship. For example, it has been argued that some limited forms of violence, if used strategically to achieve a specific objective and to enhance the quality of communication by providing "an eloquent statement of both the dissenter's frustration and the importance of the issues he addresses," can be justified in the civil disobedience context.¹³ Indeed,

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some limited forms of violence have also been witnessed in the specific acts of civil disobedience involved in the Anti-ELAB movement, as noted above.

Furthermore, it is generally argued that citizens of a nearly just liberal-democratic state have a morally justified claim to political authority and that they enjoy a moral right to engage in acts of suitably constrained civil disobedience or a moral right to public disobedience.¹⁴ It would be erroneous to conflate the general situation of liberal democracies with the situation in Hong Kong; this is because the latter, despite enjoying a number of democratic characteristics, is not a genuine democracy. For example, only half of the legislators of the Legislative Council are elected by their geographic constituencies, in which the vote is allocated on a one person, one vote basis.¹⁵ Of course, Hong Kong has a robust rule of law, judicial independence, and a mini constitution, i.e., the Hong Kong Basic Law, the highest law within the region.¹⁶ Moreover, China's national laws, at least in principle, do not apply within Hong Kong unless they are listed in the Annex of the Hong Kong Basic Law.¹⁷ Notwithstanding this, the Hong Kong Basic Law ultimately gives the National People's Congress Standing Committee (NPCSC) in Beijing the authority to determine the pace of democratic reform in Hong Kong.¹⁸

To be sure, there has been an ongoing political debate over the shape of Hong Kong's future constitutional order, particularly during these demonstrations.¹⁹ However, very little attention has been paid to the civil disobedience itself, under the banner of which a large number of protesters carry out "unlawful" acts, particularly in the liberal context of Hong Kong under China's authoritarian governance. Therefore, this Article addresses the inescapable and challenging issue of civil disobedience in post-handover Hong Kong, aiming to enrich the existing scholarship regarding civil disobedience from Hong Kong's perspective. It does so by examining the following: (1) the nature of civil disobedience, using the OCM and the anti-extradition bill protests as examples; (2) the extent to which civil disobedience can be justified, particularly with regard to the "One Country, Two Systems" rubric; and (3) the extent to which

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civil disobedience can be reconciled with the rule of law and democratic processes in Hong Kong.

More specifically, the present Article points out that, on its face, the OCM was a form of civil disobedience that was not only "unlawful" from a purely legal perspective, but was also questionable in terms of its utility, given the fact that the region is ultimately subject to the sovereign power of China's authoritarian regime. Thus, Beijing possesses the final authority regarding Hong Kong's political development to a large extent.²⁰ Moreover, the OCM did not achieve its original political goal, as the government made no concession to the demands of the large number of protesters.²¹ This is not to say, of course, that peaceful civil disobedience is of no value in retaining Hong Kong's liberal order; in fact, retaining its liberal tradition of civic education and public participation in the face of China's authoritarian influence is of extreme importance.

Considering this importance, the present Article goes on to examine the utilitarian value of civil disobedience as a modern form of civic education in Hong Kong. In turn, it seeks to reconcile the utilitarian justifications for civil disobedience with the rule of law by identifying clear limitations on permissible disobedient acts, including the absence of violence as an essential precondition for justifying civil disobedience. In doing so, this paper further contends that, civil disobedience of a kind plays a vital role in civic education which may go some way towards justifying its means. This, in turn, lends support to judicial approaches that place greater emphasis on the fundamental rights of those who exercise civil disobedience when determining whether certain acts of civil disobedience contravene the law. Finally, this Article argues that violent acts in principle cannot and do not...