Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong
| Author | Benny Tai,Richard Cullen,Scott Veitch,Fu Hualing |
| Published date | 01 February 2020 |
| DOI | 10.1177/0964663919869725 |
| Date | 01 February 2020 |
| Subject Matter | Dialogue and Debate |
Dialogue and Debate
Social & Legal Studies
2020, Vol. 29(1) 107–145
Pursuing Democracy
ª The Author(s) 2019
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DOI: 10.1177/0964663919869725
Protest and the Rule
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of Law in Hong Kong
Benny Tai, Scott Veitch, Fu Hualing and Richard Cullen
University of Hong Kong, China
Introduction: Democrats in the Dock
Scott Veitch
University of Hong Kong, China
On 14 December 2018, the month-long trial of nine co-accused in the Occupy Central
(OC) trial in Hong Kong came to a close. They were being prosecuted 4 years after the
democratic protests they had inaugurated, charged with various public order, conspiracy
and incitement offences at common law. Facing up to 7 years in prison for their lead-
ership role in the mass pro-democracy civil disobedience movement that occupied
central Hong Kong for 79 days in 2014, the nine included a Christian pastor, a sociology
professor, a legislator and barrister, and the legal academic Benny Tai. In his closing
submission to the court, Tai quoted from a judgment of Lord Hoffmann which stated that
‘civil disobedience on conscientious grounds has a long and honourable history’, and
made the case for its value in progressing justice and enhancing the principle of the rule
of law. ‘If we were to be guilty’, he concluded, ‘we will be guilty for daring to share hope
at this difficult time in Hong Kong. I am not afraid or ashamed of going to prison. If this
is the cup I must take, I will drink with no regret’.
Corresponding author:
Benny Tai, Faculty of Law, University of Hong Kong, Pokfulam, HKSAR, China.
Email: yttai@hku.hk
108
Social & Legal Studies 29(1)
In April 2019, all nine were found guilty of various offences. Some were given
suspended sentences, including the septuagenarian pastor. Benny Tai was sentenced to
a year and 4 months in prison. He began serving his sentence on 24 April 2019.
As a leader of the OC movement, Tai was central to its theorizing and strategy .
Making the case for peaceful civil disobedience came only as a last resort, when all
legal means had been tried in order to persuade the government to change its mind on
granting universal suffrage in the election of the Chief Executive, Hong Kong’s top
government official. Among these means were the organization of extensive citizens’
forums, organized debates covered in the media and an informal referendum on dif-
ferent voting options for the election of the Chief Executive in which an astonishing
800,000 people took part. Tai also carried out empirical research into attitudes towards
the rule of law in Hong Kong, results of which are reported here. The interpretation of
these is informed by, and in turn informs, a sustained theoretical analysis of the
doctrine of the rule of law and its vulnerability during a shift towards authoritarian
government.
The distinctiveness of the political and constitutional context of Hong Kong, as a
Special Administrative Region of the People’s Republic of China under the Chinese
Communist Party, is key to understanding the shift from what Tai describes as a semi-
democratic to a semi-authoritarian region. In this context, as well as universal suffrage
the key concept around which political contestation took place – in public, media and
professional discourse – was the rule of law, its meaning and practice. Seldom can the
doctrine of the rule of law have been a more prominent topic of conversation than when
tens of thousands of civil disobedience protesters took over the streets of central Hong
Kong for almost 3 months claiming they were breaking the law for the sake of the law.
The article Benny Tai has written for the ‘Dialogue and Debate’ section of this journal
reflects all these aspects. It provides an account of this wider debate, drawing on political
and legal theory, as well as the empirical findings of his study. It is a closely reasoned
analysis of the state of contemporary Hong Kong, providing insights into its constitu-
tional present and possible futures.
The article is responded to by two colleagues of Tai, both well-respected writers on
Chinese law and society. Fu Hualing focuses on how the OC movement in Hong Kong
challenged the Chinese Communist Party which understood it centrally as a matter of
national security. This perspective, he argues, is crucial to an assessment of the situation
in Hong Kong and the underlying constraints on political dissent within an authoritarian
state. Richard Cullen also argues that the specific role of the Chinese state must be
engaged with, but for him this means considering both performance and process legiti-
macy as these are associated with democracy. Taking this into account, Cullen offers a
critical account of the strategy followed by the OC movement.
Instead of a rejoinder, the section ends with extracts from Tai’s ‘Closing Submission’
to the OC trial.
Coda
Since these articles were written, events in Hong Kong in June 2019 have seen an
unprecedented resurgence of political protest, images of which have been broadcast to
Veitch
109
countries around the world (with one – significant – exception). In response to a pro-
posed legislative amendment from the Hong Kong government that would have autho-
rized new extradition agreements with various countries, including Mainland China,
more than one million people took to the streets on a hot and humid Sunday to peacefully
register their profound concern with the proposal. Citizens’ deepest fear was that the
legislative change would open a gateway directly into the Chinese system by knocking a
hole in the protective wall of ‘One Country, Two Systems’. The major component in the
fabric of that wall was, and is, the Rule of Law: its presence in Hong Kong and its
absence in the Mainland. The opposition and civil society movements Tai describes as
needing to come together, did so in spectacular fashion, and as such these protests must
be considered in some respects the continuation of the spirit and determination of the
Occupy movement. They were, however, not so much explicitly pro-democracy this time
as they were a defensive social reaction to the encroaching presence of authoritarian
power.
The Hong Kong government had publicly received the Mainland’s backing for the
amendment, and so when it refused to back down and sought to go ahead with the mid-
week legislative debate on the bill it was likely confident it could ride out the popular
discontent. This, it turned out, was massively misjudged. Further protests formed imme-
diately, demanding total withdrawal of the bill and the resignation of the Chief Execu-
tive. But without lawful authorization, the thousands of mainly young protesters who
surrounded the legislative building and closed the main roads in Central were fired on by
police with tear gas and rubber bullets. This cleared the protests, but only at the cost of
the government losing any remnant of popular good will. The following Sunday saw an
estimated one-quarter of the population of Hong Kong taking to the streets in further
protest. This time the Chief Executive backed down, apologized and suspended the
amendment process. Yet since this decision had been taken only after a meeting with
a member of the Chinese Politburo, it effectively meant that not only the Hong Kong
government but also the hitherto unstoppable Chinese Communist Party had been forced
to concede to organized protest.
For now. The one exception to the global broadcast of the images of Hong
Kong’s protests was of course Mainland China where, like the 30th anniversary
vigils for the Tiananmen Square killings that were marked around the world earlier
in June, any record of dissent was ruthlessly censored. In doing so, they confirmed
Harold Pinter’s observation about the performative contradiction of states that speak
power to truth: ‘It never happened. Nothing ever happened. Even while it was
happening it wasn’t happening’. In this situation, nothing is now entirely predict-
able. As such, the debates and tensions – centrally about power, the rule of law and
authoritarian state security – as well as the hopes and fears expressed and analysed
in the following contributions, provide an essential background for still unfolding
historical events.
110
Social & Legal Studies 29(1)
Challenges to the Rule of Law
in a Semi-Authoritarian Hong Kong
Benny Tai
University of Hong Kong, China
Abstract
Hong Kong has been recognized for its well-established rule of law (ROL). After the
Umbrella Movement in 2014, the Chinese Communist regime adjusted its strategy
towards Hong Kong and closed the road to democracy. With the end of the era of semi-
democracy, the governing system in Hong Kong is now going in an authoritarian
direction. In this new era of semi-authoritarianism, Hong Kong’s ROL faces the most
serious challenges. The meaning of the ROL is now being redefined by the Chinese
Communist regime. Hong Kong is fighting a battle on the discourse of the ROL. The legal
culture of Hong Kong people may not be strong enough to withstand such an ideological
encroachment. The legal professionals in Hong Kong play a critical role in defending
more advanced understandings of the ROL which is not just about maintaining social
order and compliance with law but concerns constraints on arbitrary powers and
protection of the civil and political rights of citizens. There are worries as well as hopes.
One thing is sure, the battle will be long and tough.
Keywords
Authoritarianism, democracy, Hong Kong, judicial independence,...
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