The Limits of Civil Disobedience in Hong Kong
On 9 April 2019, a district court in Hong Kong found nine participants in the 2014 Umbrella Movement guilty of several charges of causing, conspiring and inciting a public nuisance. The same court then sentenced four of the nine defendants to prison sentences of up to 16 months on 24 April. The judgment (which may be appealed by both parties) is part of a long series brought by the Hong Kong Department of Justice (which oversees prosecutions) over the last four years to substantiate the characterization of the Umbrella Movement as “illegal,” systematically adopted by the government since the movement took place in the fall of 2014.
Civil disobedience, theorized by Thoreau, Gandhi, Martin Luther King and others, is classically defined as a pledge to deliberately and overtly disobey a law that is deemed unjust, without resorting to violence, and to accept the penalties associated with the violation of the law. It has been much discussed and praised in recent years for its ability to achieve results even in highly repressive contexts. Maria Stephan and Erica Chenoweth have argued that throughout the twentieth century, nonviolent campaigns worldwide were twice as likely to succeed outright as violent insurgencies, adding that “civil resistance” has been growing in frequency and efficacy over time. They further make the case that no campaigns have failed once they had achieved the active and sustained participation of 3.5% of the population. Jan-Werner Müller has noted more recently that this tactic requires some adapting to the current fragmentation of the media sphere, but remains the most likely to achieve desirable results. The Hong Kong case, therefore, presents an intriguing challenge to this theoretical optimism. Though the Umbrella Movement was in many ways a perfect civil disobedience scenario, it did not lead to any significant democratic advances.
The Umbrella Movement: Civil disobedience to achieve universal suffrage
The movement broke out in response to a legal ruling on 31 August 2014 by China’s National People’s Congress (NPC), which serves as the supreme interpreter of Hong Kong’s Basic Law. This quasi-constitution, officially promulgated in 1990 by China further to its 1984 agreement with the United Kingdom, guaranteed that Hong Kong would maintain its “capitalist system” and “high degree of autonomy” after the transfer of sovereignty to the People’s Republic of China in 1997. It also set out, in its article 45, a framework under which Hong Kong’s Chief Executive—a position created as a successor to the colonial governor—would ultimately be elected by universal suffrage. The Legislative Council, of which only 40 out of 70 members are currently elected by universal suffrage, was also supposed to evolve toward full democratic representation. However, the 2014 ruling by the NPC set out further restrictions to electing the Chief Executive, allowing a vote by universal suffrage only upon the condition that all candidates be vetted by a committee overwhelmingly controlled by Beijing loyalists. The Umbrella Movement was a moral protest against this decision, demanding further democratization of Hong Kong’s institutions, as foreseen by the relevant provisions in the Basic Law.
Well before the movement broke out, three figures with strong moral authority among Hong Kong’s civil society—the law professor Benny Tai, the Baptist minister Chiu Yiu-ming, and the professor of sociology Chan Kinman, the latter two also closely involved with the democracy movement in China—launched the “Occupy Central with Love and Peace” (OCLP) initiative, with direct reference to theories of civil disobedience. Benny Tai published an op-ed in the spring of 2013, predicting that the central government would try to limit the framework of constitutional reform, and calling to use civil disobedience to achieve the aim of universal suffrage. After an informal procedure in which around 800,000 people (over 10% of Hong Kong’s population) voted to identify the most popular constitutional proposal, a group of committed citizens vowed to occupy streets in Hong Kong’s Central business district, seeking to “break the law to achieve justice,” and agreeing to be arrested and accept the legal consequences.
Though a successful one-day rehearsal took place in July 2014, and OCLP made further plans to spring into action on 1 October, in the end it only played a modest role as a catalyst for the Umbrella Movement, which was sparked spontaneously by several student groups whose members occupied a restricted space in front of the government headquarters—not in Central, but in the nearby Admiralty district—on 26 September 2014. OCLP subsequently announced that it would join the student movement. During a79-day occupation, a total of around 1.2 million people took part, with a peak of possibly several hundred thousand participants during the largest demonstrations.
The government was ultimately able to quell the movement in accordance with a directive rumored to have been handed down from Beijing: no concessions, no bloodshed. Court cases brought by private transportation companies controlled by pro-Beijing forces triggered injunctions that allowed the occupation sites to be cleared by bailiffs. Popular support for the student movement never reached an absolute majority in opinion polls, and was overtaken by opposition to the movement after talks between student leaders and the government broke down. While the proposal from Beijing was voted down in Hong Kong’s legislature in June 2015, no democratic alternative was put forward, and nor is one likely to be in the near future. Meanwhile, the government has used new legal means to remove elected pro-Umbrella members from the legislature: by prosecuting them for not properly taking their oaths, or being “insincere” in their oaths, under another legal interpretation from the NPC. For these reasons, the government’s attempt to label the whole movement as “illegal,” and to buttress its claim by aggressive prosecution of dozens of movement leaders and activists (see the updated count here), including systematic appeals of non-custodial sentences, took on an important symbolic meaning.
The implications of the Hong Kong rulings
While the rule of law in Hong Kong has been eroding under pressure from Beijing, the courts still pride themselves on following legal procedures and maintaining autonomy from the executive branch of government. It has therefore been particularly instructive to look at the details of how the courts have dealt with the notion of civil disobedience. It was previously mentioned by the Court of Final Appeals in another high-profile trial of the three student leaders—Joshua Wong, Alex Chow, and Nathan Law—who led the occupation of the space in front of the government offices. Their original sentence to community service was appealed by the prosecution, and a custodial sentence handed down by the Court of Appeals. Eventually, the Court of Final Appeals overturned the previous judgment and freed them from prison, referring obliquely to civil disobedience.
It is worth noting that one of the provisions to safeguard the autonomy of Hong Kong’s judiciary, regularly criticized by Beijing, is the inclusion of foreign non-permanent judges from other common-law jurisdictions on the Court of Final Appeals. One of the current non-permanent justices, Lord Leonard Hoffmann, was involved in setting out criteria for civil disobedience in the famous 2006 UK case Regina vs. Jones, which dealt with acts aiming to sabotage the war in Iraq. Hoffmann did not, however, take part in the 2018 ruling. The court recognized civil disobedience (adopting John Rawls’ definition) as “recognizable in any jurisdiction respecting individual rights, including Hong Kong.” The Court of Final Appeals pointed out, first that the law that had been broken (the public order ordinance) was not the “object of contestation” and could, therefore, be applied if violence had taken place. Second, in reference to a 2007 UK case, that judges faced with defendants invoking civil disobedience might “respect their views but might feel it necessary to punish them all the same” (paragraphs 70-76 of the ruling, 6 February 2018). The overturning of the custodial sentence, therefore, relied mainly on other arguments than the legitimacy of civil disobedience.
In the present case, there was no question of violent acts having been committed, so the prosecution chose to pursue charges of “public nuisance,” “conspiracy,” and “incitement.” Nine activists, including the three original leaders of OCLP, as well as a few politicians and student leaders were charged, and all were found guilty of at least one offense on April 9. Legal commentators have pointed out a certain number of unusual features of the case. First, the prosecution by the Department of Justice (DoJ) chose to bring public nuisance charges as a common-law crime, although it has been defined as a statutory crime under the Summary Offenses Ordinance with a maximum penalty of three months’ imprisonment. Since the DoJ was eager to demand long custodial sentences, it resorted to an ancient British common law offense, which has not been used in recent years and is generally seen as vindictive. The other charge, “incitement to incite” had never previously been brought in Hong Kong, and is rare even in other common-law jurisdictions. Both were tailored by the prosecution to demand the longest possible custodial sentence for what are essentially acts related to peaceful public assembly.
In his final submission to the court, Benny Tai framed his case as one of civil disobedience. He directly quoted from the previous Court of Final Appeals judgment’s references to Rawls and to the British ruling, as well as from Martin Luther King, presenting civil disobedience as a last resort. The NPC ruling, depriving Hong Kong citizens of democratic governance, also contradicted the universal human right to vote and stand for election enshrined in the ICCPR, which was incorporated into Hong Kong’s Basic Law, as is the freedom of peaceful demonstration (article 27). Finally, he argued that by prosecuting as a common-law rather than a statutory offense, “the prosecutor in this case must have breached the convention of civil disobedience…for failing to behave with restraint” and “extended culpability excessively, unreasonably and unnecessarily” (§ 70 and 74); for this reason, the three defendants pleaded not guilty, although they had originally promised to plead guilty, in accordance with the ideal of civil disobedience. Chan Kinman set out similar arguments in his farewell speech at Chinese University, referring to Thoreau and Mandela.
Finding the common law offenses of “public nuisance” and incitement to be not incompatible with freedom of assembly and other basic freedoms, the judge relied on Regina vs. Rimmington, a case heard by the House of Lords in 2006, in which it was decided that the crime of “public nuisance” depends on whether the acts consist in a “reasonable” use of public goods. In the Rimmington case, this referred to using postal services to mail several hundred packages containing racist materials to ethnically targeted recipients, while in the Hong Kong case, it referred to using roads for protest for universal suffrage—a questionable analogy, to put it mildly. The judge further dismissed the relevance of police action (in particular, tear gas) in mobilizing the protesters, arguing that the defendants intended for the occupation of roads to be as widespread and to last as long as possible. Finally, in the judge’s view, civil disobedience is predicated on criteria of proportionality of effect. Entirely blocking a main road would cause “disproportionate” inconvenience to the public. Only the occupation of a section of the road, while allowing traffic to pass along other lanes, would have meet this criterion. For this reason, he dismissed civil disobedience as a mitigating circumstance.
In the sentencing, which took place on 24 April, four defendants were given custodial sentences and jailed immediately, including Benny Tai and Chan Kinman. Reverend Chu’s sentence was suspended in view of his age, bad health and prior contribution to society. Two younger politicians were also imprisoned, whereas the two student leaders and one older politician received suspended sentences or community service (see also commentary by the historian Suzanne Pepper). The two current members of LegCo, as well as Benny Tai (a tenured professor of law) risk additional termination of their respective positions. For this reason, Chan Kinman took early retirement from his university. The sentencing judgment relied on several main arguments. For the judge, custodial sentences are not generally warranted in free speech cases, but when offenses are very severe, repentance must be considered—in his view it was lacking in the present case. The judge refers to the UK case (Jones 2006) to argue that civil disobedience implies “a sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience, which was lacking in the present case. D1 to D9 obviously did not keep their side of the bargain adverted to by Lord Hoffmann.” In his view, the defendants considered the proportionality of their acts, but their “yardstick” was wrong: they caused “excessive damage or inconvenience,” and thus disobedience cannot be considered a mitigating circumstance. The public nuisance incurred by the 79 days of occupation of streets was “very serious” in terms of scope, duration and “common injury to the public,” by far exceeding any precedent, including a three-day protest against fracking in the UK in which the Crown used the same charge of public nuisance (§ 85). For this reason, they should have apologized: “By regret, I do not mean the defendants should give up their political beliefs or their political demands, these are not the concerns of the sentencing court. By regret, I mean the defendants should express regret for the inconvenience and sufferings they had caused to the members of the public who had been affected. It is an apology that the members of the public rightly deserve from the defendants, but never received.” The defendants pursued their own aspirations without considering “ordinary folks” who relied on the carriageway to go to work and make a living. Finally, the judge dismissed any possible “chilling effect” on free speech, without specifying further.
Custodial sentences in a freedom of expression and assembly case are unprecedented in Hong Kong since the colonial days. On the other hand, pro-Beijing politicians described the sentences as too lenient, and the DoJ may yet decide to appeal at least the non-custodial ones. Legal scholar Eric Cheung noted that the lack of consideration for the motivation of civil disobedience, as well as the judge’s reliance on the expression of remorse as a criterion for prison sentences might open avenues for appeals by the defendants.
Why, then, did civil disobedience fail to obtain political concessions in Hong Kong? Civil disobedience is a recognized legal principle in Hong Kong courts, and the protesters’ cause was an indisputably noble one, voiced by credible spokespeople and shared by broad sections of the public, in a political environment that can still be described as at least partially liberal. To explain this outcome, three factors need to be taken into consideration. First, Hong Kong is a post-colonial society that remains staunchly conservative. The World Values Survey shows that, while Hong Kong is more liberal than other territories in the region, colonial (not to mention Confucian) values of order and authority still hold clout. Colonial laws like the Public Order Ordinance, resolutely opposed by anti-colonial activists and finally amended by the last governor Chris Patten but ironically reinstated after the handover, continue to offer restrictive interpretations of certain public freedoms.
Second, there is a disconnect in political accountability in Hong Kong’s system. The decision on universal suffrage was made in Beijing, where officials are impervious to public opinion in Hong Kong, and consider it dangerous to allow free elections even in a tightly quarantined territory like Hong Kong. The Beijing government also does not feel any moral pressure to advance universal suffrage, as long as it fulfills the formal requirements of the Basic Law. For this reason, the potential to create political pressure through civil disobedience was to some extent limited.
Finally, the judiciary has become increasingly politicized. Pro-democracy activists in the 1980s attempted unsuccessfully to enshrine the independence of the public prosecution from the DoJ in the Basic Law. By contrast, since the Beijing authorities have put forward the new notion of China’s “comprehensive jurisdiction” over Hong Kong in June 2014, they have repeatedly emphasized that the entire judiciary (including judges) is part of Hong Kong’s governing team and as such must actively enforce Beijing’s jurisdiction. The Hong Kong government, through aggressive prosecution and the unearthing of rare offenses, including its willingness to systematically appeal non-custodial sentences—in one such instance the Secretary of Justice was rumored to have overruled his own Director of Public Prosecutions—has been successful in putting pressure on the judiciary. It has furthermore cultivated a public environment in which civil disobedience is seen as an eccentric and ultimately selfish challenge to public order, undertaken by a whimsical group of activists eager to challenge Beijing directly. While not entirely successful, this intense public campaign has limited the appeal of civil disobedience, seen by “law and order” moderates as too risky in view of Beijing’s willingness to use disproportional retaliation when its authority is challenged. Younger pro-democracy activists also view civil disobedience as too complicated to be practical, ineffective in achieving change. For a judiciary that remains somewhat autonomous, but also eager to please the executive branch on which it relies for appointments and promotions, civil disobedience has emerged not as a mitigating circumstance—as it is defined in the body of common law recognized by Hong Kong—but as a dangerous challenge to law and order, which must be curtailed in exemplary fashion to achieve a deterrent effect. The result, entailing the immediate jailing of academics, social activists and politicians speaking out for a disinterested cause in non-violent fashion, has entailed a significant setback for the basic freedoms of assembly and expression well established in Hong Kong’s history and enshrined in its Basic Law.