This is a speech I gave today (12th November, 2014) at a HKU forum:-
Ask any lawyer to give a
view on any topic and he will give you ten. Ask a good lawyer and he will
probably give you twenty. So the organizers today seem to be courting trouble
by asking no less than five lawyers to give their views on something as
nebulous as Civil Disobedience. I said nebulous because if you care to look it
up on the Internet, you will find no definitive definition of Civil Disobedience.
In fact you will find there are as many views as there are different aspects of
Civil Disobedience; from passive protest to active resistance; from pleading
guilty to contesting guilt in a court of law; from protesting a law, to
protesting a government policy, to protesting a government administration; even
from something as fundamental as the use, or non-use of violence. The difference
of views appears to be infinite. But there is general consensus that at least one
common factor can be found, and that is, a willingness to respect and accept
the relevant legal system. That is the marked difference between Civil Disobedience
and open revolt or armed revolution
Note I said respect for
the legal system, not a particular law. For although Civil Disobedience started
out as a form of protest against a particular law, its proponents never advocate
any form of escape from lawful punishment. A willingness to accept lawful
punishment is the very essence of Civil Disobedience. That in itself is a form
of respect for the Rule of Law. Respect for the legal system is not so much as
part of the content of the Rule of Law as the very foundation of it. For
without respect, the entire philosophy of the Rule of Law cannot flourish. This
is quite different from respect for a particular law. Breaching a law is not necessarily
an affront to the Rule of Law, although persistent and widespread disregard of
a particular law can lead to an affront to the Rule of Law. This is because no
society in this world can boast of a crime free environment. Every day,
everywhere, at any time, there are people breaking the law; but that does not
mean Rule of Law does not exist. On the other hand, if you start disobeying a
court’s decision, you are moving very close to challenging the legal system.
You can disagree with a court decision; you may even openly criticize it; but
you must comply with a court decision. In doing so, you are not just complying
with the wishes of a judge, but respecting the very office the judge is
holding, which is an intricate part of the legal machinery. That legal
machinery is what the Rule of Law all about. Without that, Rule of Law cannot
subsist.
Some prominent public
figures, themselves well known lawyers and advocates of Civil Disobedience
argue that so long as participants ultimately turn themselves in and accept
legal punishment, that is enough and the Rule of Law will not be harmed. Such
rhetoric suggests the speaker has confused or misunderstood the important
difference between breaching a law and disobeying a court’s decision, which
represents the very essence of the Rule of Law.
Before I leave this
topic, I must also say a few words about persistent disobedience of a law and a
court order. There is no doubt that widespread and persistent disobedience of
the law is an affront to the Rule of Law. More so as regards a court order. Someone
said to me the other day that I should be happy that 75% of people polled in
Hong Kong said a court order must be obeyed. I cringed with fear and sadness.
75%? What about the other 25%? Can you imagine how many people that percentage
will translate into? Two million! I shudder to think what will happen to the
Rule of Law if there are two hundred people defying a court order, let alone
two million. I hope and pray the poll is wrong!
Recent events show not
only we are not at all familiar with the very essence of Democracy, which we
never have; but sadly, we are also not at all familiar with the very concept of
the Rule of Law, which we all boast to be our core value and the fabric of this
society we call home. We must do more. Democracy cannot exist on its own; it
goes hand in hand with the Rule of Law. We cannot, and must not, forsake one
for the other. For Democracy without the Rule of Law is but a political tyrant
with a better name!
