Friday, August 4, 2017

Benny Tai on Civil Disobedience and the Rule of Law (new book chapter)

"Civil Disobedience and the Rule of Law"
Introduction: What is the relationship between civil disobedience and the rule of law? Is civil disobedience an inroad into the rule of law? Is it a legitimate consideration for the court in determining whether an offender is guilty and what the penalty should be? Does a citizen have a right to civil disobedience? Is civil disobedience momentous to advancement of the rule of law? These questions were hotly debated during the Occupy Central movement in Hong Kong. During a 79-day period between September and December 2014, thousands of Hong Kong citizens occupied the main streets of several busy districts to demonstrate against the territory’s undemocratic election system. 
     Peaceful protesters in Hong Kong advocate the view that the Occupy action, although illegal, was based on the spirit of civil disobedience. The aim of the civil disobedience movement was to bring constitutional and political change to the governance system of Hong Kong, making it more just. The protesters assert that their action is consistent with the rule of law because the ultimate goal of the law under the rule of law should be the achievement of justice. Albeit paradoxical, the purpose of breaking the law is to make the law better. 
     In the opening ceremony of the 2015 legal year, prominent figures in the Hong Kong legal community tried to answer the above questions, and presented differing views on the ‘proper’ relationship between civil disobedience and the rule of law. 
     Hong Kong Secretary for Justice Rimsky Yuen, criticised the ‘unlawful’ Occupy movement as a blatant challenge to the rule of law. To him, the rule of law is all about obedience to the law or acting in accordance with it. Yuen believes that resorting to unlawful means for the purpose of pursuing democratic change can never be justified. Doing so can only erode the rule of law. 
     Paul Shieh, then Chairman of the Hong Kong Bar Association, in contrast, ridiculed the government’s overemphasis on the ‘obeying the law’ aspect of the rule of law, dubbing it a hallmark of a regime that is keen on using the law as a tool to constrain the governed rather than as a means of constraining the way it governs. Shieh agreed there are historical examples of civil disobedience bringing about political or social change. However, he pointed out, there are limits to civil disobedience action: those engaged in it must not cause excessive damage or inconvenience. Shieh then expressed the belief that the conduct of some protesters during the ‘occupation’ may have overstepped these legitimate limits. 
     Geoffrey Ma, Chief Justice of the Hong Kong Court of Final Appeal, averred that most people had demonstrated respect for the rule of law during the protests. Ma’s understanding of the rule of law is broader than Yuen’s, and more akin to Shieh’s. Equality before the law, fidelity to the law and its spirit, and judicial independence are fundamentals of the rule of law in his eyes. As a judge, it is natural for Ma to emphasise this particular aspect of the rule of law. He repeatedly stressed that the administration of justice by the courts must not be affected by extraneous factors, including political factors. 
     An incident that took place during the Occupy movement serves to illustrate the three men’s sharply conflicting views on the relationship between the rule of law and civil disobedience. A taxi driver association applied to the court for injunction orders prohibiting any person from continuing to obstruct sections of specified roads in the occupied areas. It asserted that the business of its members had been seriously affected by the obstruction caused by the protesters. Injunction orders were granted on the grounds that the obstruction constituted a form of public nuisance. Taxi drivers were entitled to have the specified sections of the roads cleared, and bailiffs were sent to assist the plaintiff in doing so. However, some protesters refused to leave. The police who were there to provide support to the bailiffs arrested them. The charge was criminal contempt of court for failing to comply with the orders of the court.
     Yuen would consider the protesters to be acting unlawfully and that their actions could not be justified in any circumstances. Shieh might recognise their actions as civil disobedience. However, he could not accept any non-compliance with a court order properly issued, and would see the protesters as having crossed the legitimate limits of such disobedience. Finally, Ma would view the injunction orders as having been issued and implemented in accordance with his list of requirements for the rule of law. Hence, he would expect the court orders to be accepted and respected by all members of the community.
     Yuen, Shieh and Ma are all legal professionals, and their concerns are naturally concentrated on the administration of justice in the courts. The peaceful protesters, in contrast, perceive the law as going beyond the letter of legal rules. Although the requirements for the rule of law include an orientation towards respecting the law by obeying it on the part of the people, that orientation can hardly be the main component of the rule of law. The rule of law cannot demand that citizens obey the law unconditionally and unreflectively.
    To the peaceful protesters, the rule of law is more about limiting the powers of the government and ensuring adequate protection for the fundamental rights of the people. Justice means more than legal justice that can only be reached in court. An independent judiciary is surely one of the main pillars of the rule of law, as it can impose the necessary limitations on all public powers. However, independent courts under the rule of law still encounter constraints in achieving justice. Judges cannot go beyond the legal issues tabled before them to address the systemic injustices that caused so many people to leave the safety of their homes to fight for their fundamental rights in the streets. Under special circumstances and conditions, people may be justified in resorting to unlawful means to achieve justice, and even to act against a court order issued by an independent court, if justice cannot be done through the courts. 
     The contrasting views of the peaceful protesters and those of Yuen, Shieh and Ma reflect the complexity of the relationship between civil disobedience and the rule of law. Their differences may be caused by their limited understanding of civil disobedience or divergent understandings of the rule of law. I am not asserting that civil disobedience is not unlawful. The real issue is whether that unlawfulness can be justified and, if so, justified by what. 
     The aim of this chapter is to establish a thesis: civil disobedience is justified by the rule of law. To establish this thesis, I have to illustrate that the goal that civil disobedience claims to achieve is also the goal that the rule of law pursues and to demonstrate that civil disobedience is an effective way of securing the attainment of this common goal, at least in the long run, by creating a climate within which other means can be used to achieve that goal. 
     Civil disobedience is first defined in Part I by showing that its goal is to do justice. Part II advances a level approach to the rule of law, which integrates different understandings of the concept and necessitates a more substantive goal for the rule of law, i.e. achieving justice. In Part III, I argue that civil disobedience plays a pivotal role in the development of the rule of law in attaining its substantive goal of achieving justice. Finally, in Part IV, I conclude the chapter by proposing a developmental model of the rule of law that provides justification for civil disobedience within the framework of the rule of law.

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