Hong Kong's Civil Disobedience Under China's Authoritarianism

Emory International Law Review Emory International Law Review

Volume 35 Issue 1

2021

Hong Kong's Civil Disobedience Under China's Authoritarianism Hong Kong's Civil Disobedience Under China's Authoritarianism

Shucheng Wang

Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr

Recommended Citation Recommended Citation

Shucheng Wang,

Hong Kong's Civil Disobedience Under China's Authoritarianism

, 35 Emory Int'l L. Rev. 21

(2021).

Available at: https://scholarlycommons.law.emory.edu/eilr/vol35/iss1/2

This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has

been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly

Commons. For more information, please contact law-scholarly-commons@emory.edu.

WANG_2.9.21 2/10/2021 1:03 PM

HONG KONG’S CIVIL DISOBEDIENCE UNDER CHINA’S

AUTHORITARIANISM

Shucheng Wang

∗

BSTRACT

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.

∗

School of Law, City University of Hong Kong. Email: shuc[email protected].hk

The earlier version of this Article was presented at the Conference on “The Occupy Central Movement

and Its Aftermath: An Interdisciplinary Study” organized by the Center for Chinese and Comparative Law at the

City University of Hong Kong on September 18–19, 2015 in Hong Kong, and the 8th Asian Constitutional Law

Forum on the topic “Asian Constitutional Law: Recent Developments and Trends” co-organized by Asian Law

Center of National University of Singapore and the School of Law of Vietnam National University on December

6–7, 2019 in Hanoi, Vietnam. I am grateful for the comments of the participants. My special thanks go to Michael

J. Perry for his guidance and kind help. Of course, all errors remain mine.

WANG_2.9.21 2/10/2021 1:03 PM

22 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

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

authoritarianism

NTRODUCTION

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.

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.

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.

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.

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.

Although extradition

had been practiced in the past between Hong Kong and other Commonwealth

jurisdictions, there was no extradition agreement between Hong Kong and

Herbert J. Storing, The Case Against Civil Disobedience, in CIVIL DISOBEDIENCE IN FOCUS 85 (Hugo

Adam Bedau ed., Routledge 1991).

What is Occupy Central? 10 Key Facts About Hong Kong’s Pro-Democracy Movement, S. CHINA

MORNING POST, http://www.scmp.com/article/1604649/what-occupy-central-10-things-you-need-know [here-

inafter What is Occupy Central?]

Michael Forsyth, Chris Buckley & Alan Wong, In Hong Kong, an Unofficial Election Draws Beijing’s

Ire, N.Y. TIMES (June 20, 2014), https://www.nytimes.com/2014/06/21/world/asia/in-hong-kong-an-unofficial-

election-draws-beijings-ire.html.

Annette Wong, Desperate for Democracy: A Comparison between Hong Kong’s 2014 Umbrella Move-

ment and 2019 AntiELAB Protests (2020) (Senior Thesis, Claremont College) (on file with Claremont College).

Hong Kong China Plans Explained, BBC NEWS (Dec. 13, 2019), https://www.bbc.com/news/world-

asia-china-47810723.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 23

Mainland China.

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.

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.

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.

Needless to say, civil disobedience is an issue that has been frequently

discussed in literature.

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.”

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.”

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.

Indeed,

Id.

Hong Kong Protestors Demonstrate Against Extradition Bill, BBC NEWS (June 9, 2019) https://www.

bbc.com/news/world-asia-china-48572130.

Mike Ives & Ezra Cheung, Protesters Start Three Days of Civil Disobedience in Hong Kong, N.Y.

TIMES (Aug. 3, 2019), https://www.nytimes.com/2019/08/03/world/asia/hong-kong-protest.html.

Id.

See also Nathan J. Miller, International Civil Disobedience: Unauthorized Intervention and the Con-

sequence of the International Community, 74 MD. L. REV. 315, 315 (2015); WILLIAM

SMITH, CIVIL DISOBEDIENCE AND DELIBERATIVE DEMOCRACY 1 (2013); KIMBERLEY BROWNLEE, CONSCIENCE

AND CONVICTION: THE CASE FOR CIVIL DISOBEDIENCE 5–6 (2012); George Forji Amin, Just Laws versus Unjust

Laws: Asserting the Morality of Civil Disobedience, 3 J.L. & POL. 156, 156 (2010); David Lefkowitz, On a

Moral Right to Civil Disobedience, 117 ETHICS 202, 202 (2007); Martin D. Carcieri, Grutter v. Bollinger and

Civil Disobedience, 31 U. DAYTON L. REV. 345, 346–47 (2006); Frances Olsen, Civil Disobedience for Social

Change: Constitutional Law as Facilitative or Distracting, 14 GRIFFITH L. REV. 213, 213 (2005).

JOHN RAWLS, A THEORY OF JUSTICE 320 (revised ed., 1999).

Id. at 321.

Candice Delmas, Civil Disobedience, 11 PHIL. COMPASS 681, 684 (2016) (quoting Kimberley Brown-

lee, Conscience and Conviction: The Case for Civil Disobedience 349–50 (2004)) (internal citations omitted);

JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 267 (1979).

WANG_2.9.21 2/10/2021 1:03 PM

24 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

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.

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.

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.

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.

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.

To be sure, there has been an ongoing political debate over the shape of Hong

Kong’s future constitutional order, particularly during these demonstrations.

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

Lefkowitz, supra note 10, at 233.

See also Owen M. Fiss, Hong Kong Democracy, 36 COLUM. J. TRANSNAT’L L. 493, 494 (1998).

Hong Kong: What Is the Basic Law and How Does It Work?, BBC NEWS (Nov. 20, 2019), https://www.

bbc.com/news/world-asia-china-49633862.

Hong Kong Security Law: What is it and is it Worrying, BBC NEWS (June 30, 2020), https://www.bbc.

com/news/world-asia-china-52765838.

Hong Kong: What Is Hong Kong’s Basic Law and How Does It Work?, supra note 16.

Hong Kong’s Democracy Debate, BBC NEWS (June 18, 2015), https://www.bbc.com/news/world-asia-

china-27921954.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 25

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.

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.

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 constitute justifiable acts of civil disobedience and

are also unrealistic in the context of Hong Kong under China’s authoritarian rule,

particularly given the importance of retaining a strong rule-of-law tradition in

the region. However, this does not exclude the possibility that some limited

forms of violence may be used as an appropriate strategy in certain exceptional

circumstances, e.g., for enhancing communication, invigorating the public

sphere, etc.

CIVIL DISOBEDIENCE IN HONG KONG: OCM AND ANTI-ELAB

An act of civil disobedience is a deliberate and open violation of the law with

the intent, within the framework of the prevailing form of government, to protest

Hong Kong Security Law: What Is It and Is It Worrying?, supra note 17.

Id.

WANG_2.9.21 2/10/2021 1:03 PM

26 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

a wrong or to advocate for the betterment of society in some way.

Put simply,

it is an illegal public protest that is non-violent in character.

While definitions

and descriptions of civil disobedience are numerous, its essential features can be

generally summarized as follows: (1) it is conscientious; (2) it breaks the law;

(3) it is public; (4) it is an act of protest; and (5) it is non-violent.

One famous

example recounted by Sophocles is that of Antigone, who chose to obey her

conscience and violate the state edict issued against providing her brother with

a burial after he was decreed a traitor.

When the dictator Creon reminded her

that such deliberate disobedience of the state law would attract a mandatory

death sentence, “Antigone nobly replied, ‘[n]or did I think your orders were so

strong that you, a mortal man, could overrun the gods’ unwritten and unfailing

laws.’”

As Lewis H. Van Dusen commented:

Conscience motivated Antigone. She was not testing the validity of the

law in the hope that eventually she would be sustained. Appealing to

the judgment of the community, she explained her action to the chorus.

She was not secret and surreptitious—the interment of her brother was

open and public. She was not violent; she did not trespass on another

citizen’s rights. And finally, she accepted without resistance the death

sentence—the penalty for violation. By voluntarily accepting the law’s

sanctions, she was not a revolutionary denying the authority of the

state.

Regarding the OCM, the organizers of the movement officially announced

in 2013 that they would begin to promote protests if the government’s proposal

for universal suffrage failed to meet international standards.

At the time,

organizers hoped to persuade at least 10,000 people to join their planned act of

civil disobedience.

On August 31, 2014, the NPCSC in Beijing announced that

its decision regarding Hong Kong’s electoral system would be implemented in

2017.

The electoral framework granted a nominating committee, comprising

Morris Keeton, The Morality of Civil Disobedience, 43 TEX. L. REV. 507, 508 (1965).

Carl Cohen, Civil Disobedience and the Law, 21 RUTGERS L. REV. 1, 3 (1966).

RAWLS, supra note 11, at 320.

Lewis H. Van Dusen, Civil Disobedience: Destroyer of Democracy, 55 A.B.A. J. 123, 123 (1969).

Id.

Ho Man Leung, Repertoire, Framing and Visions: The Occupy Movement in Hong Kong 78 (July 9,

2016) (unpublished Master thesis, Lingnan University) (on file at the Digital Commons at Lingnan University).

Id.

Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xianggang Tebie Xingzhengqu

Xingzheng Zhangguan Puxuan Wenti He 2016 Nian Lifahui Chansheng Banfa De Jueding (全国人民代表大会

常务委员会关于香港特别行政区行政长官普选问题和2016年立法会产生办法的决定) [The Decision of

the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief

Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 27

1,200 members from twenty-eight functional constituencies, the power to

nominate two to three candidates for the office of Chief Executive in accordance

with democratic procedures.

In turn, the Chief Executive-elect, after being

selected through universal suffrage, would have to be appointed by the Central

Government.

Immediately after this reform package was officially adopted by

the NPCSC, protests broke out.

The reforms were deemed by the pro-

democracy camp to restrict political views, as the procedure they laid out

effectively enabled only Beijing-approved candidates to advance through the

nomination process.

On September 27, 2014, organizers announced the official commencement

of the civil disobedience movement, which had begun as a student protest

movement.

Surprisingly, at its peak, the pro-democracy movement saw tens of

thousands of Hong Kong residents from all walks of life take to the streets.

Interestingly, it was not strong warnings or even threats on the part of the

government, but rather an injunction granted by a court that played a primary

role in clearing the protest sites and bringing an end to the movement.

To some

extent, the restoration of peace in this instance can be ascribed to Hong Kong’s

rule of law and judicial independence.

Having said this, it can be seen that the OCM in Hong Kong was not a

general public demonstration, but rather an act of civil disobedience involving

public violation of the law. The OCM had itself stated that participants in the

movement could have been guilty of “obstruct[ing], inconvenien[cing] or

endanger[ing], any person or vehicle in a public place,” under the Summary

Offenses Ordinance.

Moreover, according to the Public Order Ordinance,

OCM could also have constituted an unlawful assembly: “when 3 or more

Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016] (adopted

at the Tenth Session of the Standing Committee of the Twelfth National People’s Congress, Aug. 31, 2014).

Full Text of NPC Decision on Universal Suffrage for HK Chief Executive Selection, CHINA.ORG.CN

(Aug. 31, 2014), http://www.china.org.cn/china/2014-08/31/content_33390388.htm.

Id.

Chris Buckley & Michael Forsythe, China Restricts Voting Reforms for Hong Kong, N.Y. TIMES (Aug.

31, 2014), https://www.nytimes.com/2014/09/01/world/asia/hong-kong-elections.html.

Johannes Chan, Human Rights, the Rule of Law and Democracy: Recent Experience of Hong Kong and

China, U. H.K.FAC. L. RES. PAPER No. 2015/039 (Aug. 4, 2015).

Thousands at Hong Kong Protest as Occupy Central is Launched, BBC NEWS (Sept. 27, 2014),

http://www.bbc.com/news/world-asia-china-29397738.

Hong Kong Protests: What Changed at Mong Kok?, BBC NEWS (Dec. 3, 2014), http://www.bbc.com/

news/world-asia-china-29054196.

HK Protesters Brace for Clearance after Injunction Published, BBC NEWS (Dec. 9, 2014),

https://www.bbc.com/news/world-asia-china-30390595.

Summary Offenses Ordinance, (2017) Cap. 228, § 4A.

WANG_2.9.21 2/10/2021 1:03 PM

28 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

persons assemble[] . . . to cause any person reasonably to fear that the persons

so assembled will commit a breach of the peace, or will by such conduct provoke

other persons to commit a breach of the peace[.]”

Ultimately, a minibus management company, together with Lai Hoi-ping

and Tam Chun-hung on behalf of the Taxi Drivers and Operators Association,

brought private lawsuits against those members of the movement who

unlawfully occupied or remained on the public highway and were granted an

injunction order by the court.

In Chiu Luen Public Light Bus Co. Ltd. v.

Persons Unlawfully Occupying or Remaining on the Public Highway (the

“Public Light Bus Case”), the Court of First Instance, referring to Leung Tsang

Hung & Another v. The Incorporated Owners of Kwok Wing House,

stated

that:

His Lordship identified three elements which constituted the tort of

public nuisance: (1) A state of affairs which endangers the lives,

safety, health, property, or comfort of the public, or obstructs the pub-

lic in the exercise or enjoyment of any right that is common to mem-

bers of the public. (2) An act or omission committed by the defendants

that is causative of particular injury to a member of the public. The

injury caused to the plaintiffs must be of a foreseeable type. (3) The

defendants knew or ought to reasonably to have known that his act or

omission would result in the likely consequence of a nuisance hazard

presenting a real risk of harm to the public.

On the evidence before me, [Ribeiro PJ] agree[s] with Mr. Mok’s sub-

missions that a state of affairs has arisen which endangers the comfort

and convenience of the property as well as obstructs the public in the

exercise of enjoyment of their right to use the areas in question as a

two-way carriageway for normal vehicular traffic.

On this basis, the act of civil disobedience in question engaged in by the OCM

was held to constitute tortious conduct under Hong Kong common law and was

thus determined to be unlawful.

The court further ruled that:

Public Order Ordinance, (2019) Cap. 245, § 18(1).

Chiu Luen Public Light Bus Co. Ltd. v. Persons Unlawfully Occupying or Remaining on the Public

Highway, Namely, the Westbound Carriageway of Argyle Street Between the Junction of Tung Choi Street and

Portland Street and/or Other Persons Hindering or Preventing the Passing or Repassing of Argyle Street, (2014)

2086 H.K.L.R.D. ¶¶ 4, 5 (C.F.I.) (H.K.).

See generally Leung Tsang Hung v. Incorporated Owners of Kwok Wing House, (2007) 4 H.K.L.R.D.

654, (C.F.A.) (H.K.).

Public Light Bus Co Ltd., (2014) 2086 H.K.L.R.D. ¶¶ 17–18 (H.K).

Id. ¶¶ 11–13.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 29

[W]hen the demonstration in question based on civil disobedience has

taken place for so long, in such a scale which has affected so many

people and which has the real risk of turning into civil disorder, . . . the

fact that the demonstration is civil disobedience, no matter how noble

the underlying cause the participants may consider it to be, can consti-

tute a factor which militates against the granting of an injunction.

In terms of a possible ground for a defense based on the participant’s

fundamental rights to freedom of speech, assembly, and demonstration, as

guaranteed under Article 27 of the Basic Law, the court held that the defendant’s

conduct in the purported exercise caused an obstruction that far exceeded the

bounds of what was reasonable in light of the length of the demonstration, the

extent of the demonstration, and the increasingly violent nature of the

confrontation between the protesters and the police.

In this way, the court

determined that the protesters’ conduct was disproportionate and that any

defense relying on fundamental rights was unlikely to succeed.

Although OCM has sometimes been referred to as the “[U]mbrella

[R]evolution,”

it was not a genuine revolution—i.e., a forcible overthrow of a

government or social order—insofar as it was not characterized by the

destruction of property, personal injury, and death for many, or the complete

disruption of community life.

Of course, civil disobedience might not prohibit

minor property damage, which may be inevitable in certain circumstances.

Furthermore, it is obvious that the movement was not seeking to overthrow the

constituted authority or to repudiate that authority. The organizers of the OCM

accepted the established authority and the general legitimacy of the system of

laws.

Their overall fidelity to the law can to a certain extent be demonstrated

by the effectiveness of the court’s ruling ordering the occupied areas to be

cleared following the failure of police officers to disperse the protesters.

fact, the leaders of the movement eventually handed themselves in to police for

“taking part in an unauthorised assembly.”

Moreover, the actions of the

movement differed from direct civil disobedience, which involves disobeying

Id. ¶ 31.

Id. ¶¶ 32, 33.

Id.

Jonathan Kaiman, Hong Kong’s Umbrella Revolution, GUARDIAN (Sept. 30, 2014), https://www.

theguardian.com/world/2014/sep/30/-sp-hong-kong-umbrella-revolution-pro-democracy-protests.

Cohen, supra note 23, at 4.

For more details about the difference between the revolution and civil disobedience, see Cohen, supra

note 23, at 3–4.

HK Protesters Brace for Clearance after Injunction Published, supra note 37.

Jonathan Kaiman, Occupy Central Leaders Surrender to Hong Kong Police, GUARDIAN (Dec. 3, 2014),

http://www.theguardian.com/world/2014/dec/03/occupy-central-surrender-hong-kong-police-protests.

WANG_2.9.21 2/10/2021 1:03 PM

30 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

the law against which the protest is being made.

Thus, OCM was an exercise

in indirect civil disobedience, as the disobedience in question was not targeted

against laws such as the Summary Offenses Ordinance and the Public Order

Ordinance, but instead against the electoral framework proposed by the

NPCSC.

As far as the Anti-ELAB protests are concerned, the protesters have

expressed concerns that the Chinese authorities would use the ELAB as a

political tool to target persons who have offended Beijing, although the proposed

legislation excludes political crimes, and the government of Hong Kong has tried

to relieve the public’s concerns regarding human rights.

In terms of strategy,

the protesters, who are described as being leaderless, have employed a variety

of tactics, including lawful protests and acts of civil disobedience, as well as

radical methods that were adopted largely due to the ineffectiveness of peaceful

ones.

The radical methods used included: storming the Legislative Council,

blocking major roads to disrupt transportation, calling for city-wide strikes,

blocking the toll plaza in Hung Hom, vandalizing shops perceived to be pro-

Beijing, paralyzing the train system, etc.

The movement also tried to employ

some potentially provocative branding or language tactics, such as the phrase

“[U]mbrella [R]evolution”

or the declaration of a “Provisional Government of

Hong Kong.”

In so doing, the protesters put “themselves outside [the

traditionally] accepted channels of public dissent[.]”

It should be noted that, at the beginning of the protests in March 2019, the

demonstrations were lawful and peaceful.

Subsequently, due to the lack of

Cohen, supra note 23, at 23.

All acts of civil disobedience can fall into one of two categories: direct disobedience and indirect dis-

obedience. For more details, see Cohen, supra note 23, at 4.

Austin Ramzy, Hong Kong March: Vast Protest of Extradition Bill Shows Fear of Eroding Freedoms,

N.Y. TIMES (June 9, 2019), https://www.nytimes.com/2019/06/09/world/asia/hong-kong-extradition-protest.

html.

Yan Sham-Shackleton, Hong Kong’s Third Generation of Democracy Fighters Are Not Just Rioters,

They Are Last Line of Resistance, H.K. FREE PRESS (July 28, 2019), https://www.hongkongfp.com/2019/07/28/

hong-kongs-third-generation-democracy-fighters-not-just-rioters-last-line-resistance/.

Id.; Julia Hollingsworth & James Griffiths, Hong Kong Government Building a ‘Big Crime Scene’

After Night of Violent Protests, CNN (July 2, 2019), https://www.cnn.com/2019/07/02/asia/hong-kong-pro-

tests-legco-intl-hnk/index.html.

Kaiman, supra note 47.

Protesters Plan to Topple HK Government, New Manifesto for Provisional Government Recited, Sen-

ior Government Officials to be Dismissed, DIMSUM DAILY (Oct. 5, 2019), https://www.dimsumdaily.hk/protest-

ers-plan-to-topple-hk-government-new-manifesto-for-provisional-government-recited-senior-government-offi-

cials-to-be-dimissed/.

Delmas, supra note 13, at 685.

Amy Qin, Hong Kong’s Leader, Faced with More Clashes, Condemns Violence, N.Y. TIMES (July 15,

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 31

government response to the public demands, a later protest march at the peak of

the movement on June 16, 2019, was attended by around two million people, as

estimated by the organizers.

Admittedly, unlike the large-scale OCM demonstrations, during which the

government made no concessions whatsoever,

the Anti-ELAB protests

resulted in at least some government response to the demands of the public: the

bill in question, although rhetorically supported by the Central Government of

China, was formally withdrawn by the Hong Kong Chief Executive Carrie Lam

on July 9, 2019.

It should be noted that after a series of mostly peaceful

demonstrations, some violent clashes or incidents between the protesters and the

police did occur during demonstrations.

Clashes between pro-Beijing

demonstrators and pro-democracy protesters also took place.

One such clash

occurred in the Yuen Long train station, where an unknown group of masked

people dressed in white attacked protesters in black and some civilians as they

were marching.

While the protests have gained tremendous support from the

international community,

the protesters have not yet received any positive

response on the part of the government to their other demands, which include

the withdrawal of the characterization of the June 12 protests as a “riot,” the

unconditional release of all arrested protesters, and universal suffrage for the

government of Hong Kong.

2019), https://www.nytimes.com/2019/07/15/world/asia/hong-kong-carrie-lam-sha-tin-protest.html.

‘Nearly 2 Million’ People Take to Streets, Forcing Public Apology from Hong Kong Leader Carrie

Lam as Suspension of Controversial Extradition Bill Fails to Appease Protesters, S. CHINA MORNING POST (June

17, 2019), https://www.scmp.com/print/news/hong-kong/politics/article/3014737/nearly-2-million-people-take-

streets-forcing-public-apology.

Jeffie Lam, Four Years on from Failed Occupy Protests, What Next for Hong Kong’s Deflated Democ-

racy Movement?, S. CHINA MORNING POST (Sept. 28, 2018), https://www.scmp.com/print/news/hong-kong/pol-

itics/article/2166075/four-years-failed-occupy-protests-what-next-hong-kongs.

Hong Kong Extradition Bill “is Dead” Says Carrie Lam, BBC NEWS (July 9, 2019), https://www.bbc.

com/news/world-asia-china-48917796; Hong Kong Leader Carrie Lam Announces Formal Withdrawal of the

Extradition Bill and Sets up a Platform to Look into Key Causes of Protest Crisis, S. CHINA MORNING POST

(Sept. 4, 2019), https://www.scmp.com/print/news/hong-kong/politics/article/3025641/hong-kong-leader-car-

rie-lam-announce-formal-withdrawal.

Qin, supra note 60.

Hong Kong Protesters Clash with Pro-Beijing Counterparts, AL JAZEERA (Sept. 15, 2019),

https://www.aljazeera.com/news/2019/09/hong-kong-protesters-clash-pro-beijing-counterparts-190914140138

713.html.

Mike Ives, Mob Beats Antigovernment Protesters in Hong Kong, N.Y. TIMES (July 21, 2019),

https://www.nytimes.com/2019/07/21/world/asia/hong-kong-protest-police.html.

Victor Ting, Phila Siu & Cherie Chan, From Vancouver to New York to Brisbane, Rallies Around

World Express Solidarity with Hong Kong’s Mass Protest Against Extradition Agreement, S. CHINA MORNING

POST (June 9, 2019), https://www.scmp.com/print/news/hong-kong/politics/article/3013748/berlin-brisbane-ral-

lies-12-countries-express-solidarity.

Kris Cheng, Hong Kong Anti-extradition Law Demonstration Set for Sunday, H. K. FREE PRESS

WANG_2.9.21 2/10/2021 1:03 PM

32 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Meanwhile, it is also interesting to note that during the ongoing Anti-ELAB

protests, the voter turnout in the local District Council elections on November

24, 2019, was the highest since elections began in Hong Kong in 1999.

Due to

the fact that elections were conducted during the ongoing Anti-ELAB protests,

they have been widely considered a de facto referendum on the ongoing pro-

democracy movement.

Although Beijing and its allies considered the elections

to be a way to hear the voice of a silent majority after the months of increasingly

violent protests, the democrats’ triumph in the elections—seizing control of

seventeen of Hong Kong’s eighteen district councils by taking more than 340 of

the 452 seats—has clearly shown the overwhelming popular support for the

movement in Hong Kong.

The outcome, which largely stood in opposition to

Beijing’s rhetoric of labelling the protesters as “rioters,” even caused China’s

state-controlled media to lapse into silence; it described the detailed results as

neither a win nor a loss.

To contrast OCM with the anti-extradition bill protests, the former was less

likely to impose substantial pressure on the Hong Kong government to respond

to the demands of large-scale protests effectively under the “One Country, Two

Systems” principle. This decision was to be made by the NPCSC, although the

government of Hong Kong did have some initiative.

Under China’s

authoritarian system, it is a basic principle that an inferior authority, i.e., the

government of Hong Kong, should be submissive to the formal decisions made

by the NPCSC.

To a certain extent, the withdrawal of the NPCSC decision

(July 18, 2019), https://www.hongkongfp.com/2019/07/18/hong-kong-anti-extradition-law-demo-set-sunday-

pro-beijing-lawmakers-urge-govt-ban-protests-till-sept/.

K.K. Rebecca Lai & Jin Wu, Hong Kong Election Results Mapped, N.Y. TIMES (Nov. 24, 2019),

https://www.nytimes.com/interactive/2019/11/24/world/asia/hong-kong-election-results.html.

Shibani Mahtani, Simon Denyer, Tiffany Liang & Anna Kam, Hong Kong’s Pro-democracy Parties

Sweeping Aside Pro-Beijing Establishment in Local Elections, Early Results Show, WASH. POST (Nov. 24,

2019), https://www.washingtonpost.com/world/record-turnout-in-hong-kong-election-seen-as-a-referendum-

on-the-pro-democracy-protest-movement/2019/11/24/31804b00-0df5-11ea-8054-289aef6e38a3_story.html.

Tony Cheung, Hong Kong Elections: Pro-Beijing Collapse Shows Identity Politics More Important

than Community Issues for District Council Success, Analysts Say, S. CHINA MORNING POST (Nov. 25, 2019),

https://www.scmp.com/news/hong-kong/politics/article/3039201/hong-kong-elections-pro-beijing-collapse-

shows-identity.

Keith Bradsher, Hong Kong Election Landslide Signals More Frictions with Beijing, N.Y. TIMES (Nov.

25, 2019), https://www.nytimes.com/2019/11/25/world/asia/hong-kong-election-protests.html; Jillian Kay Mel-

chior, After Hong Kong’s Democratic Landslide, WALL ST. J. (Dec. 5, 2019), https://www.wsj.com/articles/af-

ter-hong-kongs-democratic-landslide-11575591771.

Albert H.Y. Chen, Hong Kong’s Internal Contradiction of “One Country, Two Systems”, ECONOMIST

(Oct. 11, 2019), https://www.economist.com/open-future/2019/10/11/hong-kongs-internal-contradiction-of-

one-country-two-systems.

Mike Ives, What is Hong Kong’s Extradition Bill, N.Y. TIMES (June 10, 2019), https://www.ny-

times.com/2019/06/10/world/asia/hong-kong-extradition-bill.html.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 33

would somehow imply that the decision was wrong, or at least inappropriate.

A concession of this kind, which is extraordinarily rare in an authoritarian

regime, would be a danger for the higher authority as it is likely to encourage

additional civil rights movements in the future.

This is a scenario that an

authoritarian regime generally attempts to avoid as much as possible. By

contrast, the anti-extradition bill protests have presented a direct challenge to the

decision of the government of Hong Kong itself; it is responsive to a certain

extent to a domestic public demand in the current semi-democratic system.

This situation can be distinguished from the OCM protests in that there is no

effective constitutional channel by which the Hong Kong people can challenge

any decision of the NPCSC.

In this regard, civil disobedience against the

actions or inactions of the Hong Kong government within its domain of

autonomy, rather than similar measures taken against the external NPCSC, is

more likely to be workable in the context of Hong Kong’s semi-democratic

system. In Hong Kong, civil liberties (in particular the freedoms of speech, press,

association, and assembly) and civil society can largely flourish, although the

government is only elected by a select Election Committee with 1,200 members

at present.

II. J

USTIFICATION FOR CIVIL DISOBEDIENCE IN HONG KONG?

Admittedly, justifying the need for civil disobedience in society tends to be

complicated as it involves a range of interacting factors.

Keeton outlined these

factors as follows:

Ryan Hass, Why Now? Understanding Beijing’s New Assertiveness in Hong Kong, BROOKINGS

(July 17, 2020), https://www.brookings.edu/blog/order-from-chaos/2020/07/17/why-now-understanding-bei-

jings-new-assertiveness-in-hong-kong/.

Id.

See generally Hong Kong Leader Carrie Lam Announces Formal Withdrawal of the Extradition Bill

and Sets up a Platform to Look into Key Causes of Protest Crisis, S. CHINA MORNING POST (Sept. 4, 2019),

https://www.scmp.com/print/news/hong-kong/politics/article/3025641/hong-kong-leader-carrie-lam-announce-

formal-withdrawal.

See Kimmy Chung, Hong Kong Courts Have No Power to Challenge Decisions of China’s Top Legis-

lative Body, Says Beijing Loyalist Maria Tam, S. CHINA MORNING POST (Dec. 30, 2017), https://www.scmp.

com/news/hong-kong/article/2126239/little-chance-china-forcing-through-decision-national-security-law; see

also Song Sio-Chong, NPCSC’s Decision Cannot be Challenged, CHINA DAILY, http://www.chinadaily.com.cn/

hkedition/2014-09/22/content_18636420.htm (Sept. 22, 2014).

Michael Delaney, What Just Happened in Hong Kong’s Elections?, FOREIGN POL’Y (Nov. 28, 2019),

https://foreignpolicy.com/2019/11/25/what-happened-hong-kong-elections/#.

Keeton, supra note 22, at 508.

WANG_2.9.21 2/10/2021 1:03 PM

34 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Among the important ones are:

(1) serious injustice or major opportunity for betterment, as per-

ceived by the victim or others, in the laws or in their application;

(2) lack of a reasonable prospect for the aggrieved to obtain remedy

through recourse to due process of law;

(3) unavailability of effective non-legal recourses that are less haz-

ardous or costly to the protesters than civil disobedience;

(4) availability of tactics and strategy of civil disobedience that cre-

ate a minimum of costs to other rights and to social order;

(5) incompatibility of the offending law or its implementation with

a more fundamental law of the land;

(6) strength of the injured parties’ conviction, or conviction that they

are under religious or moral compulsion to act, and ability on

their part to muster the courage and other means to persist in their

protest;

(7) availability of a moral or legal basis in the thinking of non-com-

mitted bystanders to which the injured can appeal to gain sup-

port, or at least neutralize opposition; and

(8) compatibility of the use of civil disobedience with the legal sys-

tem and culture of the society.

Again, it can be seen that these conditions are very complex. However, generally

speaking, two approaches to justifying civil disobedience may be employed:

higher law justification and utilitarian justification.

A. Higher Law Justification

Under the rule of law, everyone is equal before and has a duty to obey the

law.

Given that civil disobedience involves illegality, it is impossible to justify

such conduct merely by appealing to positive laws. Any such justification must

therefore be made by appealing to a “law” higher than positive laws, such as

“divine law,” “natural law,” “justice,” or “conscience.”

It could be argued that

such laws or principles “impose duties so compelling that they override and

cancel out any conflicting obligations”—in short, that “no statute devised by

Id. at 513.

Cohen, supra note 23, at 12–13.

What is the Rule of Law, UNITED NATIONS, https://www.un.org/ruleoflaw/what-is-the-rule-of-law/ (last

visited Oct. 2, 2020).

See generally Kent Greenawalt, The Natural Duty to Obey the Law, 84 MICH. L. REV. 1, 38–48 (1985).

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 35

humans can outweigh them.”

By this reasoning, civil disobedience can be

justified in situations where positive laws have been exhausted but justice has

yet to be achieved.

Such a defense of civil disobedience is compatible with the

natural law theory, namely, that:

A just law is a man made code that squares with the moral law or the

law of God. An unjust law is a code that is out of harmony with the

moral law. To put it in the terms of Saint Thomas Aquinas: An unjust

law is a human law that is not rooted in eternal and natural law.

However, when appealing to a “higher law” or “natural law” that is not

subject to public verification, each person may well make their own reasonable

but different moral judgements on the subject; this leads to a clear impasse.

course, in a modern society, “[i]n justifying civil disobedience one does not

appeal to principles of personal morality or to religious doctrines, though these

may coincide with and support one’s claims. . . . Instead one invokes the

commonly shared conception of justice that underlies the political order.”

This

is because “[i]t 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.”

The higher law justification is generally applicable to direct civil

disobedience where the positive law has been considered insufficient for

upholding justice.

Under modern constitutionalism, the justification for the

illegality involved in civil disobedience is plausible only if the constitutional law

or some of its provisions are considered unjust.

If the highest positive law, i.e.

constitutional law, is able to uphold justice, then there will be no need to resort

to civil disobedience that involves illegality.

For example, citizens can simply

bring a lawsuit before a court to review the constitutionality of a specific statute

by claiming that such an unjust law violates some civil and political rights

entrenched in the Hong Kong Basic Law.

Cohen, supra note 23, at 10.

Id.

Letter from a Birmingham Jail [King, Jr.], to Fellow Clergymen (Apr. 16, 1963) (on file with American

Studies Center-University of Pennsylvania).

Cohen, supra note 23, at 12.

RAWLS, supra note 11, at 321.

Id.

See Cohen, supra note 23, at 12.

See generally id.

Id.

See J.F. Mathews, The Legal System of the Hong Kong Special Administrative Region, 18 U. PA. J.

INT’L ECON. L. 3, 5 (1997).

WANG_2.9.21 2/10/2021 1:03 PM

36 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

It can be clearly seen from the above that the OCM did not resort to a “higher

law,” “natural law,” or the like to justify its actions. Instead, on the surface, the

movement attempted to use the notion of democracy with “international

standards” as justification.

Of course, to a certain extent, democracy with

“international standards” itself is not a universally accepted “higher law”; the

idea of universal democracy is relatively new and is a product of the twentieth

century.

As an example, consider the United Nations (U.N.): while, as human

rights principles have evolved to become one of the central arms in the U.N.’s

machinery, the organization holds a very powerful institutional position in the

international arena,

it must be admitted that democracy has no such equivalent

ideological standing at the UN.

As Sen stated, “democracy is not yet

universally practiced, nor indeed universally accepted, in the general climate of

world opinion[.]”

Thus, it would be difficult to conclude that “democracy in

accordance with international standards” should be taken as a “law” occupying

a higher position than constitutional law or other positive laws.

100

In fact, it is

democratic governance that has now achieved primacy, and the civil and

political rights listed in the International Covenant on Civil and Political Rights

(ICCPR) are viewed as essential for modern democracy.

101

Moreover, democracy is very valuable for underpinning human rights.

102

Sen summarizes the way this has been achieved.

103

“First, political freedom is a

part of human freedom in general, and exercising civil and political rights is a

crucial part of good lives of individuals as social beings.”

104

Secondly,

“democracy has an important instrumental value in enhancing” people’s ability

to be heard when expressing and supporting their claims to political attention

(including claims of economic needs).

105

Thirdly, “the practice of democracy

See Leung, supra note 28, at 78; see also Amartya Sen, Democracy as a Universal Value, 10 J.

DEMOCRACY 3, 4 (1999).

Sen, supra note 95, at 4.

See Gudmundur Alfredsson, The United Nations and Human Rights, 25 INT’L J. LEGAL INFO. 17, 17

(1997).

Christof Heyns & Frans Viljoen, The Impact of the United Nations Human Rights Treaties on the Do-

mestic Level, 23 HUM. RTS. Q. 483, 535 (2001); see ANNE GALLAGHER, MANUAL ON HUMAN RIGHTS

MONITORING: AN INTRODUCTION FOR HUMAN RIGHTS FIELD OFFICERS 1–2 (2008).

Sen, supra note 95, at 5.

100

Prospects for Democracy and Press Freedom in Hong Kong: Roundtable Before the Congressional-

Executive Comm. on China, 113th Cong. 7 (2014) (statement of Martin Lee, Founding Chairman, Democratic

Party of Hong Kong).

101

Discussion Paper, Democracy and Human Rights: The Role of the UN 12 (Sept. 2013).

102

See id. at 7.

103

See id.

104

Sen, supra note 95 at 10.

105

Id. at 8.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 37

gives citizens an opportunity to learn from one another, and helps society to form

its values and priorities.”

106

These aforementioned values are strengthened by

democracy. In the liberal context of Hong Kong, the values enshrined in

democracy have been widely shared and accepted during the OCM and Anti-

ELAB movement, and consequently may be treated as a kind of “higher law.”

Despite this, however, it is worth noting that there are usually two forms of

civil disobedience: direct and indirect.

107

The former refers to instances in which

an unjust law that is opposed by the disobedient actors is broken, while the latter

refers to breaking a just law in order to protest against another law or policy.

108

For example, as Cohen wrote, “if the object of protest is the conduct of a war or

other foreign policy it may be impossible for the protester to violate that policy

directly.”

109

Furthermore, “if the object of a protest is not a law but the absence

of a law, or other administrative nonfeasance, direct civil disobedience would

be impossible.”

110

When compared with direct civil disobedience, the justification for civil

disobedience may necessarily differ in the context of indirect civil

disobedience.

111

As Cohen has pointed out:

[I]ndirect civil disobedience may involve the violation of statutes

themselves entirely wholesome, in the effort to remedy serious injus-

tice in another but related sphere. And the law thus broken will be ad-

mittedly a matter of careful human selection, not divine command.

Such indirect protest could not be defended as the consequence of a

conflict between divine and positive laws.

112

Even in cases where the law being broken (for example, the Public Order

Ordinance in the OCM) is not the object of the protest, it cannot be concluded

that indirect civil disobedience cannot be justified. Given that civil disobedience

is a political act, it certainly can be justified so long as the action addresses the

majority that holds political power by appealing to the commonly shared

conception of justice that underlies the political order, as “[i]t is assumed that in

a reasonably just democratic regime there is a public conception of justice by

106

Id. at 10.

107

Cohen, supra note 23, at 4.

108

Id.

109

Id. at 5.

110

Id.

111

Id. at 12

112

Id.

WANG_2.9.21 2/10/2021 1:03 PM

38 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

reference to which citizens regulate their political affairs and interpret the

constitution.”

113

With that said, it can be seen that the OCM can be categorized as an act of

indirect civil disobedience, as Hong Kong people were unable to directly act in

violation of the NPCSC decision; instead, they chose indirect civil disobedience

as a means of protest. However, given that Hong Kong is a special autonomous

regime under China’s authoritarian system,

114

the theories of either direct or

indirect civil disobedience, as applicable in a “reasonably just democratic

regime,” cannot be simply applied to Hong Kong under the circumstances.

115

Given the high degree of Hong Kong’s autonomy, there are actually two types

of objects of the protest in civil disobedience: one is within the autonomy of

Hong Kong’s common law system, while the other is outside.

More specifically, the OCM broke the common laws of Hong Kong in order

to protest against a decision, claimed to be unjustified by protesters according to

the values of democracy, that was not drawn from Hong Kong but rather from

outside Hong Kong.

116

It is thus even more complicated to justify civil

disobedience from a “higher law” perspective under these circumstances, as the

protesters used the common values of democracy to override the NPCSC

decision in Beijing. This represented a direct challenge to the authority of

China’s Central Government, along with its sovereign power and lack of

democratic accountability to Hong Kong under the framework of “One Country,

Two Systems.”

117

In other words, if Beijing was to make an arbitrary decision

regarding a jurisdiction, but had no democratic accountability to the people in

this jurisdiction, it would be impractical for people living there to protest against

Beijing’s decision through civil disobedience, precisely due to the absence of

democratic accountability on the part of Beijing.

Although Hong Kong has been a part of China since its handover in 1997,

118

along with decisive authority over Hong Kong’s democratic development

according to the Hong Kong Basic Law, China has no democratic accountability

113

RAWLS, supra note 11, at 320–21.

114

See Hong Kong’s National Security Law: The Nail in the Coffin for One Country, Two Systems, HUM.

RTS. FOUND. (July 1, 2020).

115

RAWLS, supra note 11, at 321.

116

See Natasha Khan, Professor Who Inspired Hong Kong’s Mass Protests is Sent to Jail, WALL ST. J.

(Apr. 24, 2019), https://www.wsj.com/articles/professor-who-inspired-hong-kongs-mass-protests-is-sent-to-

jail-11556099967.

117

Hong Kong Stages Huge National Day Democracy Protests, BBC NEWS (Oct. 1, 2014),

https://www.bbc.com/news/world-asia-china-29430229.

118

Steven Levine, Hong Kong’s Return to China, ENCYC. BRITANNICA (Oct. 8, 1998).

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 39

to the people of Hong Kong under the “One Country, Two Systems” principle;

119

it is thus also impractical for the people of Hong Kong to protest against a

decision made by Beijing specifically by breaking Hong Kong’s common law.

In this regard, pragmatically speaking, civil disobedience may make sense when

undertaken against the action or inaction of the Hong Kong government within

the domain of Hong Kong’s autonomy, through resorting to some “higher law”

in whatever form this may take, such as the common values of democracy and

the rule of law cited by the Anti-ELAB movement. This is largely because the

government of Hong Kong does have a degree of democratic accountability to

the people of Hong Kong under its current semi-democratic system. It can thus

be seen that the withdrawal of the Hong Kong government-proposed extradition

bill, which occurred largely due to the increasing pressure imposed by the Anti-

ELAB movement, may to a certain extent constitute evidence that civil

disobedience against the government of Hong Kong in its domain of autonomy

(rather than directly against the acts of Central Government outside the domain

of autonomy) may be effective in certain circumstances. Of course, this is by no

means intended to deny that people have a right to civil disobedience in an

illiberal state; as Raz stressed, “members of the illiberal state do have a right to

civil disobedience which is roughly that part of their moral right to political

participation which is not recognized in law.”

120

Indeed, the justification

discussed here is not applicable to civil disobedience in general, but rather to the

particular acts of unlawful disobedience that occurred in Hong Kong under the

“One Country, Two Systems” framework.

B. Utilitarian Justification

Applying a utilitarian approach, it is possible to argue that the “deliberate

disobedience of a particular law at a particular time, under particular

circumstances, with the normal punishment for that disobedience ensuing, is

likely to lead in the long run to a better or [more] just[] society than would

compliance (under those circumstances) with the law in question.”

121

However,

this is only the beginning, as two kinds of considerations—moral and factual—

need to be employed.

122

Factually speaking, those wishing to engage in civil disobedience must first

seek solutions within the legal system.

123

If not all channels within the law have

119

Chen, supra note 73.

120

RAZ, supra note 13, at 273.

121

Cohen, supra note 23, at 12–13.

122

See id. at 13.

123

See id. at 14.

WANG_2.9.21 2/10/2021 1:03 PM

40 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

been explored, or if these channels have not been explored fully enough, it is

unjustifiable to resort to law-breaking.

124

No one can deny that civil

disobedience can encourage lawlessness and potentially undermine the most

basic values of a law-abiding society. Even if a participant in civil disobedience

insists upon submitting themselves for public punishment and humiliation for

their disobedience to demonstrate respect for the legal system,

125

at the same

time, civil disobedience is more likely to encourage others to impulsively break

the law.

126

This is consistent with the fact that a large number of illegal acts and

many complaints followed from the OCM and Anti-ELAB protests.

127

In addition, civil disobedience can cause inconvenience and injury to the

community.

128

For example, it was reported that chaos continued to reign in

Mong Kok for a sustained period during the OCM, and that many people were

subjected to violence.

129

Moreover, the sporadic violence intensified in Yuen

Long in July 2019, when protesters continued their march for a full withdrawal

of a suspended bill following the mostly peaceful protests in the earliest stage.

130

As far as economic costs are concerned, it was reported that the OCM movement

cost Hong Kong up to 350 billion Hong Kong Dollars.

131

Moreover, the Anti-

ELAB movement has had a tremendous negative impact on Hong Kong’s

economy. For example, statistics show that the number of tourists traveling to

Hong Kong declined by forty percent in August 2019 compared to August of the

last year,

132

while retail sales experienced the worst decline on record over the

summer, exceeding even that which occurred in 1998 during the Asian financial

124

See id.

125

See id.

126

Lewis Powell, A Lawyer Looks at Civil Disobedience, 23 WASH. & LEE L. REV. 205, 228 (1966).

127

For example, it was reported by the Security Bureau that 955 persons were arrested during the Occupy

Central Movement period, while forty-eight persons were arrested afterwards for crimes. Police Made Over

1,000 Occupy-Related Arrests, New Figures Show, as Lawmaker Suggests Harsher Punishments, H. K. FREE

PRESS (Mar. 2, 2016), https://www.hongkongfp.com/2016/03/02/police-made-over-1000-occupy-related-ar-

rests-new-figures-show-as-lawmaker-urges-harsher-punishments/.

128

See Cohen, supra note 23, at 14.

129

See Anti-Occupy Central Group Storms Mong Kok Protest Site, S. CHINA MORNING POST (Oct. 25,

2014), http://www.scmp.com/news/hong-kong/article/1624070/anti-occupy-central-mob-storms-mong-kong-

protest-site?page=all.

130

See, e.g., As it Happened: Bloody Clashes and Tear Gas Fired as Hong Kong Protesters Descend on

Yuen Long, S. CHINA MORNING POST (July 27, 2019), https://www.scmp.com/news/hong-kong/politics/arti-

cle/3020340/knife-attack-yuen-long-tensions-mount-ahead-hong-kong.

131

Jackie Chan Criticizes Economic Cost of Occupy Central, Calls on Hongkongers to “Love the Coun-

try,” S. CHINA MORNING POST (Oct. 10, 2014), https://www.scmp.com/news/hong-kong/article/1613588/jackie-

chan-criticises-economic-cost-occupy-central-calls-hongkongers.

132

Donny Kwok, Hong Kong August Visitors Plunge 40% Year-on-Year, Hotels Half-Full: Finance Chief,

REUTERS (Sept. 9, 2019), https://www.reuters.com/article/us-hongkong-protests-tourism/hong-kong

-august-visitors-plunge-40-year-on-year-hotels-half-full-finance-chief-idUSKCN1VU0GO.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 41

crisis.

133

There is no doubt that a large number of businesses and citizens have

suffered because of the protest movements.

Notwithstanding these limitations, from a moral perspective, Hong Kong’s

community—with its liberal traditions—has shared common values of

democracy and rule of law, albeit democracy according to international

standards is not a “higher law” than positive law.

134

In this regard, civil

disobedience in Hong Kong’s liberal context can be justified by the role it plays

in the civic education of the Hong Kong polity.

Hong Kong enjoys autonomy under the “One Country, Two Systems”

rubric, but delivery of traditional forms of civic education in the region has

proven challenging in the shadow of China’s authoritarian influence.

135

For

example, while Hong Kong’s 1996 Guidelines on Civic Education in School

emphasized human-rights education, education on democracy, education on the

rule of law, global education, and education on critical thinking, the resumption

of Chinese sovereignty has seen nationalism and patriotism become the central

elements of curriculum development.

136

In particular, the new civic-education

guidelines that have replaced the 1996 guidelines emphasize students becoming

“‘good citizens’, shouldering duties and obligations of the individual to society,

having virtues associated with traditional Chinese culture and values, and having

a strong attachment to ethno-cultural nationalism[.]”

137

The above has important implications in post-handover Hong Kong, as civic

education is linked to a healthy civic life in modern, democratic societies.

Indeed, one global study has identified civic education as contributing to: (i)

significant increases in rates of political participation, especially at the local

level; (ii) more moderate (but still significant) increases in participants’

knowledge about their political system, as well as democratic structures and

133

Denise Tsang & Danny Lee, Hong Kong Retail Sales Suffer Worst Decline on Record Amid Anti-Gov-

ernment Protests and US-China Trade War, S. CHINA MORNING POST (Oct. 2, 2019), https://www.scmp.com/

news/hong-kong/hong-kong-economy/article/3031278/hong-kong-retail-sales-suffer-worst-decline-record.

134

Cohen, supra note 23, at 10–12. In extraordinary cases, the civilly disobedient person may adopt moral

standards in sharp conflict with those professed by his community. For example, a racist may engage in civil

disobedience to defend segregation or members of the Nazi Party may practice civil disobedience to further their

ends. Employing such moral standards, the utilitarian defense of civil disobedience is certain to fail; it can hope

to succeed only when the moral ideals of the disobedient are themselves defensible. See id. at 13.

135

Kerry J. Kennedy, Comparative Insights on Civics and Citizenship Education and the Curriculum: A

View from Hong Kong, in CIVICS AND CITIZENSHIP EDUCATION IN AUSTRALIA: CHALLENGES, PRACTICES, AND

INTERNATIONAL PERSPECTIVES 245, 245, 247–48 (Andrew Peterson & Libby Tudball eds., 2018).

136

Id. at 249–50.

137

Lau Chui Shan, Challenges to Teaching Citizenship Education in Hong Kong After the Handover, E-

JOURNAL EDUC. POL’Y (2011) (citation omitted).

WANG_2.9.21 2/10/2021 1:03 PM

42 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

institutions in general; and (iii) an increase in participants’ sense of political

efficacy.

138

Civic education has thus been identified as “an antidote for political

apathy.”

139

Despite the strong colonial tradition of political protest in Hong Kong, a

survey published in 2000 indicated growing passivity within the Hong Kong

polity. Notably, 90.1% of Hongkongers interviewed stated that they were not

motivated to vote in District Council elections, as they believed that such

participation would have little effect on Hong Kong’s overall political structure

and policy.

140

These results are consistent with general trends in other

authoritarian regimes, in which polities gradually lose political consciousness

and descend into apathy over time.

141

Against this background—particularly considering the limitations placed on

more ‘traditional’ forms of civic education in Hong Kong—civic disobedience

(such as that undertaken by OCM and those involved in the Anti-ELAB

movement), together with lawful protests, necessarily has an important

educational function. Indeed, civic disobedience is a well-accepted form of

modern civic education

142

in which participants experientially learn about civic

matters (such as democratic standards and political and constitutional processes,

as well as non-democratic aspects such as the nature of dictatorship, human-

rights abuses in authoritarian states, etc.) through their civic action.

143

In fact, empirical evidence suggests that experiential education of this nature

may be the most effective means of fostering civic learning and engagement.

144

Up to 100,000 protesters are reported to have participated in the OCM, meaning

that the Movement had significant educative reach in Hong Kong.

145

Moreover,

as noted above, there were more than two million protesters involved in the anti-

138

USAID: OFFICE OF DEMOCRACY AND GOVERNANCE, BUREAU FOR DEMOCRACY, CONFLICT, AND

HUMANITARIAN ASSISTANCE, APPROACHES TO CIVIC EDUCATION: LESSONS LEARNED 1 (2002),

https://pdf.usaid.gov/pdf_docs/PNACP331.pdf.

139

Margaret Stimmann Branson, Civil Education: An Antidote for Political Apathy?, BPB (Apr. 1, 2003),

http://www.bpb.de/veranstaltungen/dokumentation/130056/civic-education-an-antidote-for-political-apathy.

140

SIU-KAI LIU, SOCIAL DEVELOPMENT AND POLITICAL CHANGE IN HONG KONG 302 (2000).

141

See JUAN J. LINZ, TOTALITARIAN AND AUTHORITARIAN REGIMES 167 (2000).

142

See Jack Crittenden & Peter Levine, Civic Education, STAN. ENCYC. PHIL., http://plato.stanford.edu/en-

tries/civic-education (Aug. 31, 2018).

143

See id.

144

Id.

145

Anne Marie Roantree & Lisa Jucca, Thousands Denounce HSBC Board Member’s Likening of Hong

Kong People to Freed Slaves, REUTERS (Oct. 31, 2014), http://www.reuters.com/article/us-hongkong-china

-idUSKBN0IK0DV20141031.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 43

extradition bill protests (as claimed by the organizers).

146

Indeed, the large-scale,

peaceful movement “certainly made some people more aware of the meaning of

universal suffrage[.]”

147

Furthermore, movements such as the OCM impact upon political

engagement. Notably, in Hong Kong’s November 2015 District Council

elections, a record forty-seven percent of eligible voters turned out to vote.

148

Moreover, three “Umbrella Soldier” candidates (i.e. those who participated in

the pro-democratic Umbrella Movement protests) won electoral seats.

149

This

indicates that the OCM, by providing an experiential, civic-learning platform,

has had a lasting impact on Hong Kong’s political landscape, encouraging more

active, political participants.

150

In addition, during the Anti-ELAB movement, a

record number of voters registered for the District Council election of 2019,

including about 390,000 new voter registrations.

151

In particular, many pro-

democracy candidates who had actively participated in the Anti-ELAB

movement eventually won their electoral seats, which clearly indicates the

increasing popular awareness of the importance of Hong Kong’s pro-democracy

movement.

152

In this way, civic education through civic disobedience can be understood as

playing a self-perpetuating role in maintaining Hong Kong’s longstanding

tradition of public protest, as well as contributing to a more robust civic life.

This is particularly important given the increasing difficulties faced in Hong

Kong in mobilizing the public and staging open confrontational action in relation

to China.

146

Hong Kong Protest: ‘Nearly Two Million’ Join Demonstration, BBC NEWS (June 17, 2019),

https://www.bbc.com/news/world-asia-china-48656471.

147

JOSEPH CHENG, NEW TRENDS OF POLITICAL PARTICIPATION IN HONG KONG 473 (2014).

148

Gary Cheung et al., Record Turnout for Hong Kong’s District Council Elections; Two Pan-Democratic

Big Guns Out, Three New Pro-Occupy Candidates Win, S. CHINA MORNING POST (Nov. 29, 2015),

https://www.scmp.com/news/hong-kong/politics/article/1881914/polarised-voters-turn-out-record-numbers-

hong-kongs-district.

149

Id.

150

See Alice Wu, District Council Election Results Shatter Myth of Political Apathy in Hong Kong, S.

CHINA MORNING POST (Nov. 29, 2015), http://www.scmp.com/comment/insight-opinion/article/1884113/dis-

trict-council-election-results-shatter-myth-political.

151

Lai & Wu, supra note 69.

152

See id.

WANG_2.9.21 2/10/2021 1:03 PM

44 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

III. RECONCILING CIVIL DISOBEDIENCE AND THE RULE OF LAW IN

ONG KONG

Notwithstanding the value of civil disobedience in terms of civic education,

one relevant and unavoidable issue under the utilitarian approach concerns how

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

A. Civil Disobedience vs. Rule of Law

In a modern, liberal society, it is generally accepted both that no one is above

the law and that no one has the right to break the law. Of course, this is not to

say that there are no circumstances under which people have a right to disobey

the law.

153

In particular, when a law wrongly infringes on a person’s rights

against the government, that person has a right to disobey the law.

154

However,

civil disobedience is not above the law; after all, people are “conscientious”

when engaging in breaching the law and willing to accept the legal consequence

of their unlawful acts, which clearly shows their overall “fidelity” to the law in

general (despite being at the outer edge thereof).

155

Nonetheless, when

considered as a matter of fact, civil disobedience is against the law. When a

participant in civil disobedience states that he is above the law because of some

“moral standard,” he is in fact stating that democracy is beneath him, insofar as

the law is grounded in democracy as the legislative mechanism.

156

In this regard,

his disobedience demonstrates a distrust for the democratic system. He is saying

that since democracy does not work, he can see no reason to help make it

work.

157

Although the case of Hong Kong may be slightly different from similar cases

in liberal democracies, the intrinsic nature of disobedience against the law and

even democracy is no different. Hong Kong is, at the very least, a law-abiding

“thin” democracy, albeit one with some distinctive features.

158

The government

of Hong Kong is divided into three usual branches.

159

Apart from the Chief

Executive, which remains a significant departure from the democratic ideal,

Hong Kong’s legislative power is vested in the Legislative Council, which “shall

153

RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 192 (1977).

154

Id.

155

RAWLS, supra note 11, at 322.

156

See generally RAWLS, supra note 11, at 409.

157

But see Wu, supra note 150.

158

See generally Randall Peerenboom, Let One Hundred Flowers Bloom, One Hundred Schools Contend:

Debating Rule of Law in China, 23 MICH. J. INT’L L. 471, 472 (2002).

159

See XIANGGANG JIBEN FA art. 2 (H.K.).

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 45

be constituted by election[s][,]”

160

and “has 70 Members for the sixth term, with

35 Members returned by geographical constituencies through direct elections,

and 35 Members by functional constituencies.”

161

There is free press and

freedom of speech, as well as a multitude of political parties.

162

All of these are

requirements for democracy. In addition, the law of Hong Kong is based on the

rule of law and the independence of the judiciary.

163

Overall, Hong Kong enjoys a high degree of autonomy. However, it does

not have its own sovereignty, which is claimed exclusively by China’s Central

Government.

164

In principle, national laws are not applicable in Hong Kong, as

the highest law within the jurisdiction is the Hong Kong Basic Law.

165

Therefore, whether protesters are pursuing certain aims by disobeying what they

consider to be an immoral law (direct civil disobedience), or even disobeying a

law they consider to be moral law to accomplish some other objective (indirect

civil disobedience), they are disrespecting the current semi-democratic system

and the rule of law.

166

Similarly, they hold the belief that “the process for

democratic relief is too slow, that only mass confrontation can bring immediate

action, and that any injuries are the inevitable cost of the pursuit of justice. . . .

simply put, that the end justifies the means.”

167

Of course, it would be possible

to argue for any illegal form of demonstration as a form of dissent in this way;

however, this threatens to destroy a society built on the rule of law, and could

lead to “serious disorder” that could “undermine the efficacy of the just

constitution.”

168

If the rule of law is substantially threatened, this may be dangerous for

society, leading to a certain degree of anarchy or even totalitarianism. As John

Locke once wrote, “[w]her-ever law ends, tyranny begins,” and the people are

“absolved from any further obedience.”

169

“Governments are dissolved from

within” when the legislative chamber is altered.

170

When the government

160

Id. art. 68.

161

LegCo Today, LEGIS. COUNCIL H.K. SPECIAL ADMIN. REGION CHINA, https://www.legco.gov.hk/gen-

eral/english/intro/about_lc.htm (last visited Nov. 8, 2020).

162

Id. art. 27; see The World Factbook, CIA, https://www.cia.gov/library/publications/the-world-

factbook/fields/315.html.

163

For more details about Hong Kong democracy, see Fiss, supra note 15, at 497.

164

See XIANGGANG JIBEN FA, Preamble (H.K.).

165

See id. art. 18.

166

Cohen, supra note 23, at 4.

167

Dusen, supra note 25, at 124.

168

RAWLS, supra note 11, at 328.

169

JOHN LOCKE, SECOND TREATISE OF GOVERNMENT §§ 202, 222 (C.B. McPherson eds., 1980).

170

Id. § 212.

WANG_2.9.21 2/10/2021 1:03 PM

46 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

becomes “arbitrary disposers of lives, liberties, and fortunes of the people,”

171

such revolutions happen.

It can be seen from the OCM and Anti-ELAB movements that, other than

some political dialogue, China has (pragmatically) made no formal response to

the demands of either the movement as a whole or the protesters involved.

Moreover, the OCM failed to achieve its aims, namely having the NPCSC

withdraw its decision and the government of Hong Kong relaunch the Five-Step

Process of Political Reform.

172

Subsequently, the OCM actually prompted the Legislative Council to veto

the reform package.

173

To a certain extent, this cast doubt on the effectiveness

of taking shortcuts to bypass democratic methods of petitioning, debating, and

assembling.

174

Although the pressure imposed by the OCM may have been

legitimate to some extent, this type of pressure can easily become illegitimate if

it shakes people’s confidence in the rule of law, or even brings Hong Kong into

chaos. Arguably, the pressure applied by demonstrations is “desirable only if” it

takes place “within the limits allowed by [common] law” and also does not

subvert, or at least threaten, the rule of law system of Hong Kong.

175

This is not

to say that civil disobedience can never be justified in the Hong Kong context;

in fact, given that Hong Kong has a liberal (albeit semi-democratic)

constitutional system, it is definitely possible that the people may resort to civil

disobedience after exhausting all other available measures of achieving justice,

particularly when the law has at some point become instrumental for the

government.

176

For example, although the right to freedom of assembly and

association is a fundamental constitutional right in Hong Kong, it is possible that

the government might unconstitutionally restrict such a fundamental right

through refusing to grant a letter of no objection for a peaceful rally in the name

of public safety, or similar.

177

In this situation, although a march may be labeled

171

Id. § 222.

172

THE SIX-MONTHLY REPORT ON HONG KONG 1 JULY TO 31 DECEMBER 2015, FOREIGN &

COMMONWEALTH OFFICE 13 (Feb. 11, 2016) https://www.gov.uk/government/publications/six-monthly-report-

on-hong-kong-july-to-december-2015. For more details about the “Five-Step Process”, see Questions and An-

swers on Constitutional Development, THE HONG KONG SPECIAL ADMINISTRATIVE REGION GOVERNMENT: 2017

MAKE IT HAPPEN, http://www.2017.gov.hk/en/liberal/faq.html (June 24, 2015).

173

Donny Kwok & Yimou Lee, Hong Kong Vetoes China-Backed Electoral Reform Proposal, REUTERS

(June 17, 2015), https://www.reuters.com/article/us-hongkong-politics/hong-kong-vetoes-china-backed-elec-

toral-reform-proposal-idUSKBN0OY06320150618; see What is Occupy Central?, supra note 2.

174

Dusen, supra note 25, at 124.

175

Id.

176

Iain Marlow & Daniel Flatley, What Hong Kong Losing Its ‘Special Status’ Would Mean, WASH. POST

(May 27, 2020).

177

XIANGGANG JIBEN FA art. 27 (H.K.).

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 47

“unlawful” by the government, the state cannot deny people’s constitutional

right to march from a common law perspective.

178

B. Civil Disobedience under China’s Authoritarian System

As China is an authoritarian state, it is understandable that, in general, there

was little to no hope that the OCM would bring about change with respect to a

political decision made by the Central Government. This can largely be ascribed

to the key characteristics of authoritarianism, which can typically be divided into

four components: (1) “limited, not responsible, political pluralism,” that is,

constraints on political institutions and groups (such as legislatures, political

parties and interest groups); (2) a basis for legitimacy based on emotion,

especially the identification of the regime as a necessary evil to combat easily

recognizable societal problems such as underdevelopment or insurgency; (3)

neither “extensive nor intensive political mobilization” and constraints on the

masses (such as repressive tactics against opponents and a prohibition on anti-

regime activity); and (4) “formally ill-defined” executive power, often shifting

or vague.

179

Following the handover of Hong Kong to China, there has been no doubt

that, under the “One Country, Two Systems” principle, China has been able to

influence Hong Kong’s constitutional order in accordance with the Hong Kong

Basic Law.

180

Although the Hong Kong Basic Law is sometimes considered a

“mini-constitution” within the jurisdiction, it was never voted on by the people

of Hong Kong, nor approved by them or their representatives; it was simply

adopted by the National People’s Congress in Beijing.

181

According to Articles

158 and 159 of the Hong Kong Basic Law, the power to amend and interpret the

Basic Law is vested in the NPCSC, although the courts may also interpret other

provisions of the Basic Law when adjudicating cases.

182

Although Article 45 of

the Hong Kong Basic Law states that the Chief Executive of Hong Kong “shall

178

In fact, during the anti-extradition protests in Yuen Long, the police issued a letter prohibiting the

protest, stating that “[w]e have reason to believe that the marchers will engage in physical confrontation with

villagers, and will pose a danger to marchers, villagers and other members of the public[;]” however, the gov-

ernment did not fully respond to the public demand for a full withdrawal of the extradition bill. For more details,

see Kris Cheng & Holmes Chan, Hong Kong Police Ban Saturday’s Yuen Long Protest Against Mob Attacks,

H. K. FREE PRESS (July 25, 2019), https://www.hongkongfp.com/2019/07/25/breaking-hong-kong-police-ban-

yuen-long-protest-saturday/.

179

LINZ, supra note 141, at 159.

180

See Hong Kong: What is the Basic Law and How Does it Work?, supra note 16; see generally

XIANGGANG JIBEN FA (H.K.).

181

See Hong Kong: What is the Basic Law and How Does it Work?, supra note 16; see generally

XIANGGANG JIBEN FA (H.K.).

182

See XIANGGANG JIBEN FA arts. 158, 159 (H.K.).

WANG_2.9.21 2/10/2021 1:03 PM

48 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

be selected by election or through consultations held locally and be appointed

by the Central People’s Government[,]” and that the ultimate aim was the

selection of the Chief Executive by universal suffrage upon nomination by a

broadly representative nominating committee in accordance with democratic

procedures, the NPCSC still has the complete authority to determine the specific

meaning of this Article.

183

As a result, the NPCSC gave a detailed decision,

stipulating four requirements for the selection of the Chief Executive:

(1) A broadly representative nominating committee shall be formed.

The provisions for the number of members, composition and for-

mation method of the nominating committee shall be made in accord-

ance with the number of members, composition and formation method

of the Election Committee for the Fourth Chief Executive.

(2) The nominating committee shall nominate two to three candidates

for the office of Chief Executive in accordance with democratic pro-

cedures. Each candidate must have the endorsement of more than half

of all the members of the nominating committee.

(3) All eligible electors of the Hong Kong Special Administrative Re-

gion have the right to vote in the election of the Chief Executive and

elect one of the candidates for the office of Chief Executive in accord-

ance with law.

(4) The Chief Executive-elect, after being selected through universal

suffrage, will have to be appointed by the Central People’s Govern-

ment.

184

As has been pointed out by pro-democracy activists, this decision effectively

enables only Beijing-approved candidates to get through the nomination

process, since the members of the Election Committee for the Fourth Chief

Executive are only to be elected by functional constituencies.

185

Furthermore, in

terms of the makeup of the selection committee, the sectors that were politically

closer to Beijing, such as traditional Chinese medicine, were over-represented

in proportion to their share of the population when compared to sectors deemed

hostile, such as social workers or lawyers.

186

Purely from a legal perspective,

these regulations do not contravene the letter of the Hong Kong Basic Law.

183

XIANGGANG JIBEN FA art. 45 (H.K.).

184

Full Text of NPC Decision on Universal Suffrage for HK Chief Executive Selection, supra note 31.

185

See Hong Kong Election Candidates to be Screened, Reform Proposal Says, BBC NEWS (Apr. 22,

2015), https://www.bbc.com/news/world-asia-china-32397179.

186

See Keith Bradsher, Beijing Switches Sides in the Race for Hong Kong’s Chief Executive, N.Y. TIMES

(Mar. 21, 2012), https://www.nytimes.com/2012/03/22/world/asia/beijing-switches-support-in-race-for-hong-

kong-chief.html.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 49

Nevertheless, the NPCSC made a highly restrictive interpretation of Article 45

and its relation to universal suffrage.

187

In addition, procedurally speaking, according to the Hong Kong Basic Law

and the Interpretation of NPCSC in 2004, amendments to the election methods

for the Chief Executive were subject to a “Five-step Process”:

(1) The Chief Executive should report to the NPCSC and invite it to

decide whether any amendments to the selection method are neces-

sary;

(2) The NPCSC should “make a determination on whether any amend-

ment to the selection method may be made;”

(3) If the NPCSC determined that the method should be amended, the

Hong Kong Government should “introduce to the Legislative Council

(‘LegCo’) a resolution on the amendments to the method for selecting

the” Chief Executive and the method for forming the Legislative

Council, “to be passed by a two-thirds majority of all” Legislative

Council Members;

(4) The Chief Executive should “consent to the resolution as passed by

the LegCo;” and

(5) The Chief Executive should lodge the relevant bill “to the NPCSC

for approval” or for the record.

188

On its face, these procedures are compatible with the basic “One Country,

Two Systems” principle.

189

On the one hand, under China’s sovereignty and the

Hong Kong Basic Law, the NPCSC has the power to determine the meaning of

Article 45, even if that meaning is highly restrictive.

190

As to the NPCSC’s

decision regarding the second step, the Legislative Council, as the representative

of the people of Hong Kong, can only choose not to pass the resolution

introduced by the government. In other words, regarding the democratic

development of Hong Kong, it is Beijing, rather than Hong Kong, that has the

decisive authority. Of course, as an authoritarian state, China will clearly act to

ensure that Hong Kong’s democratic development is not even an incremental

threat to its authority; this is because, geopolitically speaking, there is a fear that

any democratic developments in Hong Kong may eventually be appealing to the

187

XIANGGANG JIBEN FA art. 45 (H.K.).

188

THE HONG KONG SPECIAL ADMINISTRATIVE REGION GOVERNMENT, 2017 MAKE IT HAPPEN: METHOD

FOR SELECTING THE CHIEF EXECUTIVE BY UNIVERSAL SUFFRAGE, 1, 2 (Apr. 2015).

189

Hong Kong Election Candidates to be Screened, Reform Proposal Says, supra note 185.

190

XIANGGANG JIBEN FA art. 45 (H.K.).

WANG_2.9.21 2/10/2021 1:03 PM

50 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

rest of China.

191

Although the OCM may have brought to bear greater legitimate

pressure than was possible through standard channels, the long-term utility of

this pressure is questionable.

192

Notwithstanding that the Legislative Council

voted against the NPCSC’s electoral system proposal, the NPCSC has yet to

respond with a framework that loosens Beijing’s control.

193

Indeed, given the

authoritarian nature of the Chinese Central Government, particularly with

respect to the significant constraints placed on intensive or extensive political

mobilization on the mainland, mass public civil disobedience in Hong Kong

places the Central Government in a difficult position: in short, the Central

Government will likely wish to avoid granting concessions that could be

perceived as capitulation in the face of civil disobedience, as this would

ultimately pose a threat to its authority.

194

In this regard, as discussed above, it would be strategically rational for Hong

Kong, if plausible, to reform or strengthen its democratic system from the inside,

and perhaps to resort sometimes to support from the international community

with common shared values. Moreover, if justified, civil disobedience is more

likely to impose substantial pressure on the Hong Kong government to respond

to the demand for justice within its domain of autonomy, rather than on the

external Beijing, which has no democratic accountability towards the people of

Hong Kong. Of course, although some affairs may fall within the autonomous

domain of Hong Kong’s government, given the principal-agent relationship

between the government of Hong Kong and the Central Government of China,

civil disobedience may be less likely to exert pressure on the government of

Hong Kong to make some pragmatic concessions if Beijing plays an implicit but

dominant role therein.

195

For example, although the extradition bill was

proposed by the government of Hong Kong within its autonomous domain

according to Hong Kong Basic Law, the suspension of the bill, proposed by the

Chief Executive, was in fact agreed to by China’s Vice Premier Han in a closed-

door meeting before its announcement.

196

191

See Audrey Jiajia Li, Hong Kong Protest Tactics: The Risks of Radicalism, N.Y. TIMES (July 24, 2019),

https://cn.nytimes.com/china/20190724/hongkong-larry-diamiond/zh-hant/dual/.

192

Id.

193

Kwok & Lee, supra note 173.

194

See Dusen, supra note 25, at 124.

195

Keith Zhai et al., Exclusive: China Sets up Hong Kong Crisis Centre in Mainland, Considers Replacing

Chief Liaison, REUTERS (Nov. 25, 2019), https://www.reuters.com/article/us-hongkong-protests-shenzhen-ex-

clusive/exclusive-china-sets-up-hong-kong-crisis-center-in-mainland-considers-replacing-chief-liaison-

idUSKBN1Y000P.

196

See id.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 51

As evidenced by the OCM and the Anti-ELAB movement, there is no doubt

that large-scale disobedience, if staged appropriately, may favor pro-democracy

politics in District Council and Legislative Council elections within Hong Kong.

Nonetheless, to take an extreme example, if civil disobedience is making Hong

Kong chaotic or even causing it to substantially threaten China’s authoritarian

regime, such disobedience may actually spawn far more injustices than it

removes, including a further tightening of mainland control. Indeed, as Dusen

perceptively argued, “[i]f citizens rely on antidemocratic means of protest, they

will help bring about the undemocratic result of an authoritarian or anarchic

state.”

197

Moreover, as Larry Diamond pointed out, that Hong Kong is not part

of Mainland China only means that the threshold at which Beijing will use

military or similar force to crack down on these protests is relatively high.

198

Beijing may take some coercive measures, perhaps in some combination with

local ones, if the unending protests or defiance cross Beijing’s red line and

substantially challenge its authority or position.

199

C. Reconciling Civil Disobedience

The question that therefore arises is how civil disobedience can be reconciled

with respect for the rule of law and democratic processes. Hall argued that a just

and stable society can in fact handle a modicum of unlawful civil disobedience,

provided that clear limitations are placed on the illegal conduct that is

permissible.

200

As previously noted, this reconciliation requires that acts of civil

disobedience have underlying social value and take place non-violently, with a

minimum of force, and with respect for the rights and interests of others.

201

precisely, “[u]nlike the rioter [who uses violence], the true civil disobedient

commits no violence. Unlike the mob demonstrator, he commits no trespass on

others’ rights.”

202

In reconciling the rule of law and civil disobedience, it is also relevant to

emphasize that the rule of law in Hong Kong entails the constitutional protection

of freedom of speech, freedom of assembly, and freedom of demonstration by

virtue of Article 27 of the Basic Law.

203

The “rule of law” may not entirely

197

Dusen, supra note 25, at 125.

198

See Li, supra note 191.

199

Id.

200

Matthew R. Hall, Guilty but Civilly Disobedient: Reconciling Civil Disobedience and the Rule of Law,

28 CARDOZO L. REV. 2083, 2095 (2007).

201

Id. at 2089.

202

Dusen, supra note 25, at 125.

203

XIANGGANG JIBEN FA art. 27 (H.K.).

WANG_2.9.21 2/10/2021 1:03 PM

52 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

protect the civil disobedience that occurred during the OCM, but it does provide

some limited acceptability. Even so, the rights to freedom of expression and

assembly are not absolute, and restrictions may be permitted in the interests of

(amongst other matters) public safety, public order, and the protection of others’

rights and freedoms where the restriction is both (i) necessary and (ii) the least

intrusive means of protecting such interests under the circumstances.

204

Proportionality considerations thus favor that individuals should exhaust all

reasonably available, effective, lawful, and democratic channels before resorting

to civil disobedience.

205

Such channels include formal party participation,

lobbying of members of parliament, collective action mediated by both party

and electoral politics, and commencement of proceedings before courts under

the rule of law.

206

In addition, proportionality considerations also strongly favor

the nonviolent exercise of constitutionally protected rights.

207

Given that violent

acts threaten public order and public safety, and are also likely to infringe on the

individual rights of others (such as the right to security of person and property),

the exercise of such rights in the context of violent civil disobedience is likely

to be deemed disproportionate by a court.

208

Moreover, the converse is also true:

in cases where civil disobedience is carried out in a nonviolent manner and

constitutes little threat to the social order, any limitations placed on participants’

rights to freedom of speech and assembly become less permissible.

209

Indeed, as

previously noted, in the Public Light Bus case the Court of First Instance

emphasized in obiter dictum that violence is a factor when balancing rights and

interests.

210

There, Judge Jeremy Poon noted that the disproportionately violent

nature of confrontations between the protesters and police during the OCM

meant that any of the protesters’ defenses, grounded in their fundamental rights

to freedom of assembly and demonstration, would be unlikely to succeed.

211

From a strategic perspective, given that Hong Kong is a relatively fragile

semi-democracy under China’s authoritarian governance, civil disobedience—

204

DANNY GITTINGS, INTRODUCTION TO THE HONG KONG BASIC LAW 292–94 (2013).

205

See RAWLS, supra note 11, at 327.

206

Actually, exhausting existing legal channels as a prerequisite for resorting to disobedience can be re-

flected in the religious practice. See Delbert D. Smith, The Legitimacy of Civil Disobedience as a Legal Concept,

36 Fordham L. Rev. 716 (1968).

207

See RAWLS, supra note 11, at 321–22.

208

Id. at 321.

209

Id. at 339.

210

See Chiu Luen Public Light Bus Co. Ltd. v. Persons Unlawfully Occupying or Remaining on the Public

Highway Namely, the Westbound Carriageway of Argyle Street Between the Junction of Tung Choi Street and

Portland Street and/or Other Persons Hindering or Preventing the Passing or Repassing of Argyle Street, (2014)

2086 H.K.L.R.D. ¶ 26 (C.F.I.) (H.K.).

211

Id. at 13.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 53

particularly if it involves inappropriate violence or other destructive measures,

such as property damage—is more likely to be counterproductive, as civil

disobedience is more likely to succeed when it engages in a patient and highly

coordinated program of continued, nonviolent protest aimed at mobilizing the

broadest possible support.

212

Moreover, radicalism resulting from violence may

even provide pretext or justification for Beijing to intervene in Hong Kong’s

autonomous affairs, as under Article 14 of the Garrison Law of the People’s

Republic of China.

213

This issue was mentioned by a spokesperson from China’s

Defense Ministry when asked by reporters how the Ministry planned to handle

Hong Kong’s “separatists.”

214

The spokesperson stated that the Hong Kong

government may, if necessary, ask the central government for assistance, as the

People’s Liberation Army stationed in the city may be deployed for the

maintenance of public order or in cases of disaster relief.

215

It is clear that most people possess a common-sense morality according to

which they may take defensive action against government agents who commit

injustice, in the same way that it may be considered justified to lie or even use

violence in self-defense or in defense of others when faced with a murderer at

the door. Although nonviolence should be a fundamental principle underpinning

civil disobedience, as Jason Brennan says, if peaceful methods fail to stop the

injustice, “[t]he common-law doctrine of self-defense is always governed by a

necessity proviso: you may lie or use violence only if . . . peaceful actions are

not as effective.”

216

Although, according to Rawls, “any interference with the

civil liberties of others tends to obscure the civilly disobedient quality of one’s

act[,]”

217

this should by no means be used to deny the possibility of a limited

form of violence that can be used strategically without losing its “civil” value;

for example, a limited form of violence that enhances the communicativeness

and publicity of one’s act.

218

212

Li, supra note 191.

213

See Zhonghua Renmin Gongheguo Xianggang Tebie Xingzhengqu Zhujun Fa (中华人民共和国香港

特别行政区驻军法) [Garrison Law of the Hong Kong Special Administrative Region of the People’s Republic

of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 30, 1996, effective July 1, 1997),

art. 14 (China).

214

See Kris Cheng, Hong Kong Gov’t Says It Will Not Ask for Assistance from the Chinese Military to

Tackle Protests, H.K. FREE PRESS (July 26, 2019), https://www.hongkongfp.com/2019/07/26/hong-kong-govt-

says-will-not-ask-assistance-chinese-military-tackle-protests/.

215

Id. Regarding the anti-extradition bill protests, the Hong Kong government has clarified that it will not

ask for any assistance from the Chinese army stationed in the city to handle protests. See id.

216

Jason Brennan, When the State is Unjust, Citizens May Use Justifiable Violence, PRINCETON UNIV.

PRESS (Jan. 29, 2019), https://press.princeton.edu/ideas/jason-brennan-when-the-state-is-unjust-citizens-may-

use-justifiable-violence.

217

RAWLS, supra note 11, at 321.

218

Piero Moraro, Violent Civil Disobedience and Willingness to Accept Punishment, 8 ESSAYS IN PHIL.:

WANG_2.9.21 2/10/2021 1:03 PM

54 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Conceptually, it has been perceived that the distinction between violence and

nonviolence—along with the necessarily nonviolent character of civil forms of

contestation—may be politically instrumentalized, as it is more likely that the

government will “pursue a strategy of divide and rule with regard to protest by

portraying and celebrating certain forms of protest as good . . . and labelling and

repressing other forms of protest—often those of marginalized groups—as

violent, uncivil and criminal.”

219

Meanwhile, “violence” may refer to either

physical (as traditionally understood) violence or psychological violence,

although the latter might be excluded under narrower definitions.

220

By their

nature, both are a form of coercion.

221

This dual nature means that a government

agency may take the form of coercion that is non-physical; for example,

regarding the anti-extradition bill protests, it has been argued “that the

protesters’ anger stems from the structural violence that Beijing has stealthily

inflicted on them over the past decade.”

222

Accordingly, as John Morreall points out, if we entirely rule out all forms of

coercion in acts of civil disobedience, we may have gone too far, as we have

actually “ruled out the greater share of what has traditionally been called civil

disobedience, on the grounds that practically all of it has involved some form of

coercion.”

223

In fact, even Rawls does not deny that “[s]ometimes[,] if the appeal

fails in its purpose, forceful resistance may later be entertained.”

224

Because people tend to disapprove of violence in general, justifying the use

of violence, within a limited scope, if used as a tactic in an act of civil

disobedience will largely depend on how the public reacts to it, along with

whether it is able to have the proper effect on the public,

225

as it gives voice to

“conscientious and deeply held convictions[.]”

226

Interestingly, to a certain

extent, this has been evidenced by the triumph of pro-democratic forces in the

District Council election during the anti-extradition bill protests, which certainly

involved certain forms of violence, as mentioned above. Undoubtedly, the

limited violence deployed as a tactic in an act of civil disobedience must not aim

at seriously injuring or even killing other individuals, and those who engage in

civil disobedience should be both conscientious about the violence involved and

A BIANNUAL J. (2007), https://commons.pacificu.edu/work/sc/514c5bac-deff-448e-a38d-25c3fbf1f014.

219

Robin Celikates, Democratizing Civil Disobedience, 42 PHIL. & SOC. CRITICISM 982, 984 (2016).

220

John Morreall, The Justifiability of Violent Civil Disobedience, 6 CAN. J. PHIL. 35, 37 (1976).

221

See id.

222

Ian Johnson, How China’s Rise Has Forced Hong Kong’s Decline, N.Y. REV. (Nov. 26, 2019).

223

Morreall, supra note 220, at 41–42.

224

RAWLS, supra note 11, at 321–22.

225

Morreall, supra note 220, at 47.

226

RAWLS, supra note 11, at 322.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 55

willing to accept the punishment resulting from their unlawful and violent

acts.

227

Overall, protesters who engage in any future civil disobedience in Hong

Kong must not only eschew violence at the outset of their actions but must also

assess their ability to remain peaceful given the reasonably foreseeable

consequences of their conduct. Arguably, where no threat of violence exists and

where particular regard is given to the value of permitting nonviolent acts of

civil disobedience in Hong Kong—insofar as civil disobedience plays a

fundamental, educative role in promoting the citizenry’s capacity to engage in

the political process—a balance can be more readily struck in favor of permitting

such acts. On the other hand, where civil disobedience is accompanied by

violence, such acts cannot be reconciled with the rule of law; this is particularly

true in the context of Hong Kong, where preservation of the rule of law and

Hong Kong’s autonomy within the “One Country, Two Systems” rubric is

paramount. In those instances, violent civil disobedience should be restricted as

far as possible, or even punished according to the law.

ONCLUSION

Based on the Sino-British Joint Declaration of 1984, it was agreed that the

“One Country, Two Systems” framework would shape the future of Hong

Kong.

228

As a consequence, Hong Kong has formed and developed a distinctive

semi-democratic system with judicial independence under China’s authoritarian

system, as is currently enforced by the Hong Kong Basic Law.

229

Although

China has claimed its sovereignty over Hong Kong, under the “One Country,

Two Systems” principle Hong Kong has been allowed to enjoy far greater

autonomy than any other Chinese territory. In a civilized society built on the rule

of law, all available legal and democratic channels should be used, if necessary,

to create social change.

230

Hong Kong’s legal system guarantees a wide variety

of opportunities to use mass meetings, public parades, and organized

demonstrations to stoke public sentiment, characterize issues, and cause

change.

231

227

Moraro, supra note 218.

228

Sino-British Joint Declaration on the Question of Hong Kong, China-U.K., Dec. 19, 1984, 1399

U.N.T.S. 23391.

229

Eleanor Albert & Lindsay Maizland, Democracy in Hong Kong, COUNCIL ON FOREIGN REL. (June 30,

2020), https://www.cfr.org/backgrounder/democracy-hong-kong.

230

See RAWLS, supra note 11, at 327.

231

See XIANGGANG JIBEN FA art. 27 (H.K.).

WANG_2.9.21 2/10/2021 1:03 PM

56 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

Although civil disobedience may be justified under certain circumstances,

the threshold of injustice as a trigger for civil disobedience is usually high.

232

must always be borne in mind that:

[T]he greatest danger in condoning civil disobedience as a permissible

strategy for hastening change is that it undermines our democratic pro-

cesses. To adopt the techniques of civil disobedience is to assume that

representative government does not work. To resist the decisions of

courts and the laws of elected assemblies is to say that democracy has

failed.

233

Dusen provided examples to illustrate his view of the true nature of civil

disobedience:

When militant students storm a college president’s office to achieve

demands, when certain groups plan rush-hour car stalling to protest

discrimination in employment, these are not dissent, but a denial of

rights to others. Neither is it the lawful use of mass protest, but rather

the unlawful use of mob power.

234

Nonetheless, this does not deny that the people of Hong Kong may be

prevented from self-legislating effectively due to the shortcomings of Hong

Kong’s semi-democratic system. Civil disobedience—as an integral part of any

democratic society with institutional defects—can be considered not only as a

transitory response under extreme circumstances, but also as a democratizing

force to initiate and reopen deliberations. This is especially true when people

face the “failures of government to debate or enact important policy options,

where the discussion or enactment of those options is obstructed by the

phenomenon of deliberative inertia[,]”

235

or even authoritarian tendency. Just as

Hannah Arendt says, mass civil disobedience is inevitable in unstable political

circumstances and can ultimately equilibrate and stabilize society.

236

It “enables

the reenactment of the horizontal social contract between the people through an

eruption of ‘civic freedom’ and ‘public happiness’, thus strengthening civic

bonds and invigorating the public sphere.”

237

Specifically, regarding Hong Kong’s semi-democracy under China’s

authoritarian system, the above analysis suggests that the OCM was largely

232

See RAWLS, supra note 11, at 326.

233

Dusen, supra note 25, at 125.

234

Id.

235

Celikates, supra note 219, at 986.

236

Delmas, supra note 13, at 686 (quoting Hannah Arendt, Reflections on Civil Disobedience, NEW

YORKER (Sept. 12, 1970), at 70).

237

Id.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 57

misplaced in Hong Kong, as the protesters attempted to pressure China’s Central

Government despite its lack of democratic accountability to the people of Hong

Kong.

238

The strategy of pressuring the Central Government to withdraw its

proposed electoral framework largely ignored the fact that Hong Kong’s host

country is an authoritarian state, which has not previously been responsive to

civil disobedience in a way that would be typical of a liberal democracy.

Nonetheless, the movement did transgress the just laws of Hong Kong.

239

This

was particularly concerning due to its potential to undermine the rule of law and

encourage lawlessness, as was evident during the latter stages of the OCM,

which involved many incidents of violence.

240

By contrast, during the anti-

extradition bill protests, the civil disobedience may have been pragmatically

appropriate under the “One Country, Two Systems” principle as it was placing

pressure on the government of Hong Kong, which is at least somewhat

responsive to the people of Hong Kong under its current semi-democratic

system.

241

In effect, the Hong Kong government, which proposed the bill within

its domain of autonomy, did make some concessions in its move to withdraw

the extradition bill, in contrast to the lack of concessions made during the

OCM.

242

Retrospectively, the organizers of the OCM once claimed that civil

disobedience would be the most lethal weapon available to the Hong Kong

people in their struggle for democracy.

243

However, the concern remains that

under the framework of “One Country, Two Systems,” the outcome of the OCM

could prove less of a weapon against the Central People’s Government, and

more likely a weapon against Hong Kong itself concerning the sacrifice of its

rule of law if the strategy is not adopted appropriately.

Although the OCM did not achieve its goals pragmatically, this is not to say

that people should refrain from civil disobedience in the face of an authoritarian

regime.

244

Rather, Hong Kong, as a civilized rule-of-law region under the “One

Country, Two Systems” framework, should be concerned with maintaining and

238

Explainer: What was Hong Kong’s ‘Occupy’ Movement All About?, REUTERS (Apr. 23, 2019),

https://www.reuters.com/article/us-hongkong-politics-occupy-explainer/explainer-what-was-hong-kongs-oc-

cupy-movement-all-about-idUSKCN1S005M.

239

Michael C. Davis, Occupy Protests Breaking Law, but Not Undermining Hong Kong’s Rule of Law, S.

CHINA MORNING POST (Nov. 7, 2014), https://www.scmp.com/comment/insight-opinion/article/1634329/oc-

cupy-protests-breaking-law-not-undermining-hong-kongs-rule.

240

Elizabeth Barber, Hong Kong Protests Reach Violent High as Students Clash with Police Overnight,

TIME (Dec. 1, 2014), https://time.com/3611250/hong-kong-occupy-central-umbrella-revolution-lung-wo/.

241

Hong Kong Extradition Protests: Government Suspends Bill, BBC NEWS (June 15, 2019),

https://www.bbc.com/news/world-asia-china-48645342.

242

Id.

243

Lai Tung Kwok, What ‘Occupy Central’ May Mean for HK, CHINADAILY.COM (June 12, 2014),

http://www.chinadaily.com.cn/hkedition/2014-06/12/content_17580645.htm.

244

See Hong Kong Security Law: What is it and is it Worrying?, supra note 17.

WANG_2.9.21 2/10/2021 1:03 PM

58 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

fostering its core value of the rule of law and making use of all legally available

channels to fight for justice. Otherwise, under China’s authoritarian system,

Hong Kong may lose its most basic characteristic: the rule of law. It could then

degenerate into a less democratic region and rapidly become semi-

authoritarian.

245

Notwithstanding these concerns, the fact remains that Hong Kong still has a

long tradition of public protest.

246

The OCM and those involved in the Anti-

ELAB movement have proven particularly significant for Hongkongers as civic

education tools that encourage political engagement, as evidenced by record

turnouts in Hong Kong’s district council elections and the subsequent election

of the “Umbrella Soldiers.”

247

Indeed, notwithstanding the level of autonomy

enjoyed by Hong Kong under “One Country, Two Systems,” certain limitations

placed on its democratic institutions by the Hong Kong Basic Law make the

maintenance and development of its liberal traditions an ongoing difficulty.

248

In the face of China’s authoritarian sovereign power, the risk is that

democratic consciousness may wane if robust public protest is not maintained.

Thus, in order to reconcile the costs and benefits of civil disobedience in Hong

Kong, the absence of violence becomes a fundamental condition. In cases where

civil disobedience proceeds peacefully, its civic education benefits are more

readily justified, and arguably provide greater support for a judicial approach

that favors upholding the fundamental rights that underpin an individual’s

participation in civil disobedience (such as freedom of speech and freedom of

assembly).

249

By contrast, where civil disobedience involves illegal acts of

violence, it can hardly be justified. An even worse outcome would be one in

which the citizens engage in violence or chaotic behavior, crossing Beijing’s

bottom line, with the result that the mainland government takes coercive

measures to maintain the “One Country, Two Systems” principle, perhaps in the

name of “state sovereignty” or “national security.” Of course, this should by no

245

For more discussion, see generally Benny Tai, Round Three of Hong Kong’s Constitutional Game:

From Semi-Democracy to Semi-Authoritarianism, 49 H.K. L. J. 335, 335–56 (2019).

246

Antony Dapiran, City of Dissent: Hong Kong has a Proud Tradition of Protesting to Protect its Unique

Identity, CNN (June 15, 2019), https://www.cnn.com/2019/06/14/asia/hong-kong-protest-story-intl-hnk/index.

html.

247

Hong Kong Sees Mixed Results in First District Election Since ‘Umbrella Protests’, DW (Nov. 23,

2015), https://www.dw.com/en/hong-kong-sees-mixed-results-in-first-district-election-since-umbrella-protests/

a-18868205.

248

Richard C. Bush, How Hong Kong Got to this Point, BROOKINGS (Sept. 12, 2019), https://www.brook-

ings.edu/blog/order-from-chaos/2019/09/12/how-hong-kong-got-to-this-point/.

249

Michelle Nicholasen, Nonviolent Resistance Proves Potent Weapon, HARV. GAZETTE (Feb. 4, 2019).

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 59

means be used to exclude the possibility that limited forms of violence may be

strategically and appropriately used as tactics in civil disobedience.

It is worth noting that after Hong Kong’s National Security Law (NSL) was

enacted by the NPCSC in June 2020, it has become very clear that China cannot

tolerate any acts involving potential secession, subversion, terrorism, and/or

collusion with foreign powers, all of which have been criminalized by the

NSL.

250

More specifically, in addition to the new Hong Kong national security

body established under the NSL (the Committee for Safeguarding National

Security of the Hong Kong Special Administrative Region, or HKNSC), the

Central People’s Government has also established another new office in Hong

Kong, the Office for Safeguarding National Security of the Central People’s

Government in the Hong Kong Special Administrative Region (CPGNSO),

which is not subject to Hong Kong’s jurisdiction.

251

According to Article 55 of

the NSL, the CPGNSO has exclusive jurisdiction over a case:

[C]oncerning offence endangering national security under [the NSL],

if: (1) the case is complex due to the involvement of a foreign country

or external elements, thus making it difficult for the Region to exercise

jurisdiction over the case; (2) a serious situation occurs where the Gov-

ernment of the Region is unable to effectively enforce [the NSL]; or

(3) a major and imminent threat to national security has occurred.

252

When a case arises concerning an offense believed to endanger national

security pursuant to Article 55 of the NSL, the CPGNSO, rather than the Hong

Kong authorities, shall initiate investigation into the case, which will

subsequently fall under the jurisdiction of the prosecutors and courts in

Mainland China;

253

furthermore, the decision made by the HKNSC cannot be

amended via Hong Kong’s judicial review.

254

From a legal perspective,

moreover, the definitions of these crimes as listed in the NSL are somewhat

ambiguous

255

and open to broad interpretation, where such interpretative power

is vested in the NPCSC according to the NSL.

256

Given the status of Hong Kong

as a common law jurisdiction under “One Country, Two Systems,” this does not

250

Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special

Administrative Region (promulgated by the Standing Comm. Nat’l People’s Cong., June 30, 2020, effective

June 30, 2020) (China).

251

Id. arts. 12, 48, 60.

252

Id. art. 55.

253

Id. art. 55–57.

254

Id. art. 14.

255

Stuart White, Here are Some of the Most Controversial Points of Hong Kong’s Dreaded Security Law,

VICE (July 1, 2020).

256

Law on Safeguarding National Security in the Hong Kong Special Administrative Region, art. 65.

WANG_2.9.21 2/10/2021 1:03 PM

60 EMORY INTERNATIONAL LAW REVIEW [Vol. 35

technically prohibit Hong Kong courts from developing a common law

jurisprudence by interpreting the NSL when handling such cases.

257

Having said

this, in terms of civil disobedience within Hong Kong, the NSL clearly provides

both China and the pro-Beijing government of Hong Kong with a legal channel

to exercise a wide range of discretion when handling a case suspected to involve

NSL-listed crimes.

258

If the case involves openly advocating for the overthrow

of the Chinese government under CCP’s leadership or calling for Hong Kong’s

independence, it will very likely be treated as a national security case by the

government.

259

It is clear that one consequence of passing the NSL has been a certain

intimidating effect on Hong Kong’s human rights advocates.

260

A number of

pro-democracy political organizations once run by activists for democracy have

ceased operating since the NSL came into effect, while some prominent political

activists have fled Hong Kong to escape the potential dangers posed by the

NSL.

261

Of course, this is not to say that people have surrendered to fear since

the NSL was enacted, although fear may certainly be used by politicians as a

tool to change people’s attitudes and behaviors.

262

On the contrary, there is

strong evidence that people are still searching for new means of resisting

authoritarian rule.

263

One example of this involves the unprecedented support

expressed by investors of Jimmy Lai, who was arrested under the NSL;

following his arrest, investors bought shares in the company he owned, causing

the stock value to rise more than 2,000% to a twelve-year high.

264

Another

example concerns the long queues of people lining up to purchase the anti-

government tabloid Apple Daily in the early hours of the day immediately after

the arrest.

265

More than half a million copies of the paper were published that

day, a significant increase from the usual 100,000.

266

Of course, given that the

governments of both Hong Kong and China have been granted a wide range of

discretion in applying the NSL, it seems very likely that there is almost no space

257

Hualing Fu, A Note on the Basic Law and the National Security Law, HKU LEGAL SCHOLARSHIP BLOG

(Aug. 12, 2020), http://researchblog.law.hku.hk/2020/08/hualing-fu-on-relationship-between-hong.html.

258

White, supra note 255.

259

Id.

260

China Passes Hong Kong Security Law, Deepening Fears for Future, AL JAZEERA (June 30, 2020).

261

Id.; Nathan Law, Leading Young Democracy Activist Flees Hong Kong, BBC NEWS (July 3, 2020),

https://www.bbc.com/news/world-asia-china-53271740.

262

China Passes Hong Kong Security Law, Deepening Fears for Future, supra note 260.

263

See, e.g., Support for Arrested Owner Drives Next Digital Shares, Watchdog Urges Caution,

REUTERS (Aug. 11, 2020), https://www.reuters.com/article/us-next-digital-stocks/hks-next-digital-hits-

12-year-high-after-campaign-to-support-arrested-owner-idUSKCN2570Y2.

264

Id.

265

Id.

266

Id.

WANG_2.9.21 2/10/2021 1:03 PM

2021] HONG KONG’S CIVIL DISOBEDIENCE 61

for any large-scale civil disobedience involving illegal acts of violence, as such

activities could easily be categorized as crimes under the NSL.

267

Despite this,

there is undoubtedly still hope given Hong Kong’s unflagging spirit of

resistance.

267

White, supra note 256.