Some Reflections On Civil Disobedience

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In the summer of 2019, a restless mood spread among many Hong Kong residents along with the hot weather. Dissatisfied with the government's plan to introduce the Extradition Law Amendment Bill, many protesters took to the streets to protest the amendment. What no one expected, however, was that a seemingly normal and peaceful protest turned out to be the biggest riot since Hong Kong’s return to China in 1997. On June.9th, the first large march began. Three days later, protesters threw bricks, bottles at police officers and police used pepper spray and tear gas to fight back. Another three days later, the largest march in Hong Kong’s history broke out, followed by two months’ continuous clashes in the city. Even though the amendment was put into suspension as early as on June.15th, the protests and riots that lasted for several months still made people wondering what exactly happened in Hong Kong. Is this kind of civil disobedience a legitimate right of the protestors? If so, should such right be limited and, to what extent, should it be morally protected?

First of all, we must affirm the validity of the protest when it first began. The protest in Hong Kong stemmed from people's dissatisfaction with the Extradition Law Amendment Bill, which they believed was contrary to the 'One country, two systems” policy that the Chinese government had adhered to since the return of Hong Kong in 1997. They also considered the amendment as a challenge to regional law and even to democracy as a whole. Was their idea absolutely right? The answer was not certain. In fact, all policies had two sides. Just like the Extradition Law Amendment Bill, which was initially introduced based on a background story that a Hong Kong resident absconded from Taiwan. The man was the biggest suspect of a murder and he could not be investigated or later went through trial because there was no extradition treaty. The initial purpose of the Amendment was to strengthen regional cooperation on law enforcement, trying to improve the legal system to protect people's lives and properties. However, once the regulations were put into practice, if strict supervision was absent, it was likely to generate problems that Hong Kong residents worried. The central government could strengthen its control over the regional government via this amendment by extraditing political prisoners, so as to expand ideological propaganda in Hong Kong. This seemed highly threatening to the “One country, two systems” policy. Since the amendment was not put into effect at last, we would never be able to verify the speculation from all the opponents in Hong Kong. We would never know if their opinion were right or wrong. 

However, they always had the rights to disobey and to protest. Why? Because sometimes certain laws were unjust and people had rights to fight against unjust laws. Just like Rawls said in Theory of Justice, “The injustice of a law is not, in general, a sufficient reason for not adhering to it any more than the legal validity of legislation (as defined by the existing constitution) is a sufficient reason for going along with it”. Our society applies two justice systems, procedural justice and factual justice, and the two systems are complementary but different. Even if some laws conform to procedural justice, they do not conform to factual justice. The reason why procedural justice has its authority on citizens is that it expresses the factual justice generally accepted by the public through rational language and fixes it in written form. Still, the legalization process of procedure justice generally adopts voting, and no matter how voting expression is adopted, it is possible that the minority's different opinions are overruled by the majority. Under this circumstance, the only way for minorities to express their views is to resist laws that they believe do not conform to factual justice but have passed procedural justice. Justice is defined differently among different individuals; thus individuals must also retain the power to challenge existing laws that explain justice. Only in this way can democracy and the rule of law be guaranteed to be carried out to the greatest extent. From this point of view, Hong Kong residents have every right to resist and protest against the laws they consider unjust. There is nothing morally wrong with the goal of the protests at the beginning.

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So since when did a big part of the protest begin to fail morally? It began when protesters turned from ordinary protests to wanton destruction of public properties, serious threats to other people's lives and insults to national symbols, especially after the Hong Kong government announced suspension of the amendment. The intention of the protest gradually changed from opposition against the amendment to violence against the “One country, two systems” policy and even the destruction of national sovereignty. On Aug. 13th, a journalist from a state-run Chinese newspaper was brutally beaten at the airport. Protestors began to arbitrarily occupy public resources and purposely tear down the Chinese national flag and national emblem. From this point, protests transformed into unacceptable riots. Why are these actions no longer considered as morally acceptable civil disobedience? Because the original intention of the protestors is to oppose unjust laws and to protect basic justice. Therefore, when their actions turn out to cause new injustice to others and even to society, they violate their own original intention of pursuing basic justice and thus are no longer protected by morality. Admittedly, the process of seeking justice through disobedience is bound to be accompanied by violations of some laws, but such violations should be confined to those laws which they consider unjust and cannot be extended to other laws which are generally accepted as just in society. Targeted disobedience to certain law is a way protestors, usually as minorities, express their attitudes. 

Disobedience, in this case, is a special form of obedience. Showing collective strength and willing to accept certain punishment or consequences, protestors show the public attitudes of pursuing basic justice. However, when disobedience against law spreads without limitation, the basic justice will no longer exist. When opponents choose to violate other laws that they do not consider to be unjust, it means that there is no longer any system or procedure to punish them. In this case, procedural justice can no longer effectively explain factual justice, and factual justice can no longer be embodied in a generally acceptable written form. Then the right to interpret justice will return to every individual, making a universal agreement of factual justice no longer exist. In addition, since the pursuit of basic justice through disobedience is protected as a basic human right, other basic human rights should also be respected. Such basic human rights include the right to life for all citizens, and the right to use public resources. Therefore, it is not morally to ignore the basic human rights of others while protestors exercising their basic human rights of pursuing justice. It is a kind of extremely selfish double standard behavior. Since disobedience is respected as a fundamental human right, the basic human rights of all people should be protected equally during the process of protests, and the riot in Hong Kong clearly violates this principle. Finally, when the opponents advocate for just law through disobedience and protests against the unjust law, they should immediately stop when the unjust law is abolished or replaced by just law. As citizens, we all have the obligation to protect the justice system since a just system is the premise to basic justice. Continued disobedience after achievement of its goal is a great damage to such a just system. It will also reduce favorability and likelihood of acceptance when future minorities use this special method to fight for their rights and to advocate for justice. As Dr. Martin Luther King said about protests in his Letter from Birmingham Jail, “There is a more excellent way, of love and nonviolent protest”.

Possible counterarguments against the above arguments include that the protestors have to take violent self-defense measures because of the suppression of law enforcement branches, police in particular. Also, people may say that if the protestors do not practice violence, their demands will not be taken seriously by the government, so violence is the most effective means. It is not necessary to discuss whether it was the protestors or the police who first started violence because it is still controversial in the Hong Kong case. We have to admit that law enforcement has permission of violence and punishment to some extent. In order to maintain social stability, some violence is allowed. For example, under special circumstances, police have to violently arrest or even kill the suspects. Civil disobedience is a kind of behavior that walks on the edge of the law and the protests are willing to receive some punishment from the beginning. Therefore, as long as the police do not harm the basic human rights of the protestors when enforcing just laws, some special coercive measures are reasonable. In addition, even if how the police enforce laws conflicts with how protestors fight for their rights, it should not be transformed into violence against innocent people. Protestors can take all reasonable measures to protest law enforcement, but this is not the reason for them to beat other people and to damage public property. Such behavior still has no moral support. For those who think that protestors must use violence to realize their power to the greatest extent, it is already stated above that using violence is a violation of justice and will undermine the social acceptance of disobedience as a form of defense. In the Hong Kong case, protestors’ behavior is completely immoral because their purpose has been achieved. As the amendment is put into suspension, their violence is simply reckless. It is totally against the original intention of the whole disobedience movement.

In the case of Hong Kong, it was regrettable to see the protestors gradually turned from fighters against injustice, practicing rational civil disobedience with courage to someone who could no longer represent justice. It was regrettable to see peaceful and effective disobedience turned into antagonism. It was regrettable to see protests turn into violence. In Statement of the Hong Kong Bar Association on the Rule of Law and Civil Disobedience published in 2014, the Hong Kong Bar Association itself quoted Wood J of the British Columbia Supreme Court in Everywoman's Health Centre Society (1988) v Bridges (1989) 61 DLR (4th) 154 that is an accurate description of what had happened in Hong Kong in the past months:

“Many of you, while assuring me of your respect for the law, have characterized your contemptuous conduct as an act of last resort stemming from frustration brought on by the failure of government to act upon your views and to change the law accordingly, by seeking to change the law by deliberately disobeying it you threaten the continued existence of the very instrument, indeed the only instrument through which you may eventually achieve the end you seek. Such conduct is not only illegal, it is completely self-defeating”.

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