Hiding behind court orders and power of police won't make calls for universal suffrage go away
MICHAEL C. DAVIS
PUBLISHED : Tuesday, 02 December, 2014, 4:15am
UPDATED : Tuesday, 02 December, 2014, 4:36am
Hiding behind court orders and power of police won't make calls for universal suffrage go away. Photo: Reuters
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.
In the face of the court orders and strategies of escalation by both sides of the row, protesters committed to non-violence are now confronted with whether to stay on the streets and accept arrest or to withdraw peacefully.
They have posed little risk to the rule of law. Ignoring a court order might be a sign of disrespect, but resistance by private individuals must escalate to a more widespread level of lawlessness to undermine the rule of law in any substantial way.
That the campaign aims fundamentally to resist government infraction of the Basic Law may also be relevant to assessing the evolving situation.
Civil disobedience campaigns often articulate a strong concern for unjust laws and the denial of basic rights. While protesters must shoulder responsibility for responding peacefully to lawful court orders, the government must take greater responsibility for both alleviating the circumstances that gave rise to the protests and handling the protests in a measured and lawful manner.
Government indifference to public concerns about democracy and human rights and heavy-handedness in handling peaceful protests will surely undermine the rule of law.
The Occupy Central action was initially fuelled by Beijing's white paper in June that appears to greatly undermine Hong Kong's autonomy and consequently its rule of law. The National People's Congress Standing Committee's decision in August then brought people to the streets by taking great liberty with the Basic Law's commitment to universal suffrage.
Taking such liberty with human rights guarantees in the Basic Law and human rights treaties undermines the rule of law by undercutting the reliability of constitutional guarantees.
The government's duplicity in this decision by misrepresenting Hongkongers' views is widely known and clearly adds to the public's anger.
It has become apparent that the administration can ignore protesters' concerns at its peril. While it might use force to bring the occupation to an end, public outrage at its failure to keep Basic Law commitments to democracy and the rule of law will not subside quickly. Severe governance problems will persist as long as people lack confidence in the government's fundamental commitment to safeguard the city's autonomy.
While protest fatigue at the inconveniences posed by Occupy has become increasingly apparent in opinion surveys, public determination for democratic reform to better secure autonomy will surely grow. The government that is hiding behind contempt proceedings to clear the protest areas will not change this. Excessive force against protesters will just fuel more protests.
So, while the courts and protesters should take seriously compliance with court orders, this obligation does not relieve the government of its responsibility to uphold the Basic Law and guard human rights. Anything less will degrade our courts and law enforcement institutions.
Professor Michael C. Davis, of the University of Hong Kong, specialises in constitutional law and human rights
http://m.scmp.com/news/hong-kong/article/1653389/hong-kong-government-must-face-responsibilities-human-rights
