英文

下一篇

Editorial : The boundaries of civil disobedience

【明報專訊】THE COURT has found all the "nine Occupy leaders" guilty of one or more charges. The 2014 Occupy Movement was both a civil disobedience movement for democracy and the largest political confrontation ever since the implementation of "One country, two systems". The case involving the nine Occupy leaders is the central case of the mass movement. It is the duty of the court to give a ruling in accordance with the law and the facts of the case. However, the impacts of the movement will remain imprinted on Hong Kong politically and socially, whose effects will outlast the ruling. After several years' rumination, Hong Kong people have come to understand what civil disobedience is about. But at the same time, they have also become more aware of the importance of the rule of law and the limitations of "achieving justice by violating the law". Hong Kong's path to democracy has not been widened by the Occupy Movement. On the contrary, the road has become increasingly difficult, with many even feeling a heavier sense of helplessness. It has been more than four years since the Occupy Movement, but Hong Kong society is still in a state of political disorientation.

The "Occupy trio", Tai Yiu-ting, Chan Kin-man and Chu Yiu-ming, advocated civil disobedience as early as the beginning of 2013 by raising the idea of Occupy Central with Love and Peace to demand "genuine universal suffrage". Seen as the founders of the theory of the movement and its initiators, they were also the three leading defendants of the case of the "Occupy nine". The remaining six defendants were charged with offences like incitement to commit public nuisance because of their roles in encouraging people to join the protests.

As the "Occupy nine" case involves the concepts of civil disobedience, freedom of speech and public nuisance, the judge has addressed all these notions in his judgement. One key message is civil disobedience should be reasonable and within boundaries. In the final ruling last year on the case of the "Occupy student trio", the Court of Final Appeal maintained that civil disobedience must be "peaceful and non-violent" and shall not cross the line of constitutionally protected peaceful demonstration. Similarly, the ruling yesterday also states that civil disobedience should be "proportionate". The judgement also cited an overseas case saying "there are conventions which are generally accepted by the law-breakers on one side and the law enforcers on the other". Because of such conventions, firstly, the protesters "do not cause excessive damage or inconvenience". Secondly, "they vouch (for) the sincerity of their beliefs by accepting the penalties imposed by law". Hong Kong courts recognise the notion of civil disobedience and may give consideration to the factors concerned when determining the sentences. However, the courts only focus on the ingredients of the offence when deciding whether a defendant is guilty or not. Civil disobedience cannot be used as a defence to criminal charges. From the perspective of the rule of law, there are no grounds to say the ruling is a case of political revenge or suppressing peaceful protests, let alone "a persecution of political prisoners".

While the courts can adjudicate the unlawful acts in the movement concerned from the angle of the law, the political cause behind the trial is indeed beyond what the courts can handle. The call by the Occupy trio to demand democracy by way of civil disobedience ultimately unfolded into a head-on political confrontation with the central government. The result was a radical deterioration of the relationship between Hong Kong and the central government. On the one hand, we saw the rise of the idea of Hong Kong independence. On the other hand, the central government has also further tightened its grip on Hong Kong. In the past, Hong Kong's democratic movement was relatively pure in nature. But over the past few years, there has been a tendency for the movement to become entangled with the thoughts of Hong Kong independence and self-determination. That has made Hong Kong's road to democracy even more difficult.

"One country, two systems" is the only way out given the practical circumstances of Hong Kong. Ultimately, the only way to democratise Hong Kong is also to return to this framework. Civil disobedience is only the means but not an end itself. Both the democratic camp and the central government should rethink how the two sides can get along again and restart the dialogue.

明報社評2019.04.10:公民抗命有界線 政治迷失待走出

「佔中九子」案判決,9名被告各有罪名成立。2014年的佔領運動,既是公民抗命爭取民主的運動,亦是「一國兩制」實施以來最大型政治衝突,「九子」案牽涉多名「佔中」發起人,是這場群眾運動的核心案件,法庭責任是根據法律和案情判案,然而佔領運動留下的政治和社會烙印,不會因為裁決而消失。經過數年沉澱,市民知道公民抗命所為何事,惟更加看到法治的重要,以及「違法達義」的局限;香港民主之路並未因為佔領運動而拓闊,反而愈走愈艱難,亦加深了不少人的無力感。佔領運動事過4年有餘,香港社會仍處於政治迷失之中。

「佔中三子」戴耀廷、陳健民和朱耀明,早於2013年初便提倡公民抗命,提出「讓愛與和平佔領中環」,爭取「真普選」,被視為佔領運動的理論奠基者和發起人,亦是「九子」案的3名主要被告。至於其餘6名被告,亦因為扮演了呼籲者的角色,結果被控以煽惑他人犯公眾妨擾罪等罪名。

「九子」案觸及公民抗命、言論自由、妨擾公眾等概念,法官判辭對此均有闡述,當中一個關鍵重點,是公民抗命必須合理合度。去年終審法院就「雙學三子」案作出終極裁決,提到公民抗命必須是「和平、非暴力」,不可超越憲法保障的和平集會界線,今次裁決亦提到公民抗命必須合乎比例。判辭援引外國案例指出,抗命者與執法者之間存在一種默契,一是抗命者的行為不會構成嚴重破壞或不便,二是抗命者願意接受法律懲罰,以證明行動真誠基於信念。法庭認可公民抗命概念,量刑會考慮相關因素,惟定罪與否只會看違法元素,公民抗命並非刑事控罪辯護理由。從法治角度而言,不能說九子裁決是政治報復,又或打壓和平示威,遑論「迫害政治犯」。

法庭可以從法律角度,處理與這場運動有關的違法行為,然而「九子」案背後所包含的政治屬性,實非法庭所能處理。「佔中三子」號召公民抗命爭取民主,最終發展成為一次與中央硬撼的政治對抗。經此一役,香港與中央關係丕變,這邊廂港獨冒起,那邊廂中央進一步收緊對香港控制。以往香港民主運動性質較為單純,可是這幾年民主運動卻有與港獨自決思潮綑綁在一起的勢頭,香港爭取民主之路變得更為崎嶇。

「一國兩制」是香港現實唯一出路,推動民主化最終也只能回到這個框架之下。公民抗命只是手段而不是目標,民主派和中央都需要重新思考,究竟雙方可以怎樣重新相處、重啟對話。

■Glossary

outlast sb/sth : to continue to exist or take part in an activity for a longer time than sb/sth

rumination : the act of thinking deeply about sth; deep thoughts about sth

unfold : spread out; expand

上 / 下一篇新聞