Written by Michael C. Davis.

As the occupy protests reach the end of their second month and protesters face a choice between withdrawing voluntarily from protest areas or court-ordered clearance, an assessment is in order. Some protesters and their critics have readily concluded that the protesters have accomplished nothing, because their formal demands for the Chief Executive to step down and for the NPC Standing Committee to withdraw its August decision have not been met. This facile conclusion fails to appreciate what has been achieved. The protesters have put the Government on the spot such that it dare not claim victory and go forward ignoring public concerns. If it does it will surely pay a price in the loss of public trust and consequent problems with governance.

After its controversial use of tear gas during the early protests it seems the Hong Kong Government has pursued a policy to wait out and wear down the protesters. Presumably such strategy aims to be followed, as we see in late November, by aggressive clearance operations when the crowds have dwindled. As the public grows weary of the continuing blockage of public streets Government officials may be tempted to conclude they have won and continue business as usual. This conclusion would be wrong.

It has long been appreciated that these protests are first a battle for the hearts and minds of Hong Kong people. Either successful government policy or gaining concessions from government will depend on demonstrated public support.

The protest leaders deserve some criticism on the tactical front. Some feel it may have been sensible in early October for them to claim victory in round one and conditionally withdraw from occupy sights just after the height of the protest. The protesters might then have better laid the foundation for a long-term movement with a variety of non-violent tactics, possibly including withdrawing and reoccupying various protest areas if Government indifference persist, public marches on special occasions, boycotts, teach-ins and other non-violent strategies aimed at public education and support.  It seems initially the protest leaders feared loss of momentum if they withdrew and later lacked sufficient control over fellow protesters to command various more nuanced strategies that were discussed. One such initiative, an offer to shrink the occupy areas in exchange for access to the civic square outside the government offices, was rebuffed by the Government.

The governments at both levels also need such public support if they are to govern effectively. The June State Council White Paper and the August NPC Standing Committee decision have put Hong Kong’s core values at risk and drained public support for the Government. The Central Government’s overreaching, supported by duplicitous behavior from the local government and its supporters, has undermined Hong Kong’s cherished high degree of autonomy and rule of law. Public trust has been trashed by the pattern of official misrepresentation that accompanied these developments.

Central Government overreaching into Hong Kong’s autonomous affairs did not begin last summer, but the June White Paper raises the level of interference considerably. The Sino-British Joint Declaration, which has long been relied upon as the foundation of the “one country, two systems” model in Hong Kong, was effectively abandoned, as Beijing now claims “sole authority” for the twelve principles in that treaty. Along with such “sole authority” the White Paper claims the right in the NPC Standing Committee to interpret or amend the Basic Law as it chooses. While effectively putting the Standing Committee above the law the White Paper paradoxically identifies the Standing Committee as the primary guardian of the rule of law. Hong Kong is told its “high degree of autonomy” is not “full autonomy.” Those who take such autonomy seriously are accused of a “confused and lopsided view.” Drawing strong objection from the Hong Kong Bar, judges are characterized as “administrators” and are told they must be patriots and guard national security. With these extreme claims the White Paper provided the initial fuel for the protests to follow, for which the Central Government bears full responsibility.

In its August decision the NPC Standing Committee exercised the unfettered power claimed in the White Paper.  Putting in place a process for vetting candidates by the required official nominating committee, the decision clearly aims to block candidates from the pan-democratic camp. This aim is achieved by requiring the nominating committee to be based on the existing heavily pro-government election committee and requiring candidates to meet a fifty-percent threshold for nomination. By taking such liberty with the promised universal suffrage the decision not only undermines democratic development but also the rule of law. It likewise ignores the human rights requirements of the ICCPR, which are binding on Hong Kong.

The NPC Standing Committee decision followed a Hong Kong government report on the need for electoral reform. This report misrepresented Hong Kong views, implying wide public support for the anticipated Beijing decision. That the Hong Kong government has been complicit in undermining its own autonomy has caused grave concern in Hong Kong. Local officials are frequently seen to lecture Hong Kong on Beijing concerns but there is little evidence that Hong Kong concerns are effectively conveyed to Beijing. This failure accounts for much of the public anger over the NPC Standing Committee decision. Protesters have demanded that the Hong Kong government fully perform its obligation to guard Hong Kong’s autonomy and rule of law. Their concern for lack of representation underlies their demand for democracy.

These government failings have been dramatically exposed over the summer of protests. It is difficult to see how public confidence in governance can be restored without a dramatic shift in government policy. The central and local governments need to be seen to honestly carry out their commitments to Hong Kong’s autonomy, democratic reform, the rule of law and human rights under the Basic Law.

The frequent official refrain that the protesters are undermining the rule of law and the Basic Law, while the government is upholding such requirements, is widely seen as dishonest and self-serving. It demonstrates an unwillingness of the Government to accept responsibility for its own actions. Protesters breaking the law in a civil disobedience campaign may show some disrespect for government policies but they clearly do not pose the degree of risk to the rule of law posed by these wayward government policies and their misrepresentation. The burden of the rule of law rest most heavily on the government.

The proper execution of court orders accompanied by protester compliance or arrest would merely reflect the execution of the law. If protesters peacefully concede to such orders either by clearing the area or conceding to the arrests that have been anticipated in choosing the path of civil disobedience the rule of law is maintained. On the other hand, if the police execute the court orders or enforce the law in an indiscriminate and aggressive manner, as sometimes seemed apparent in the Mong Kok clearance of late November, then the rule of law would be put in jeopardy.

At this stage is would be constructive for the Hong Kong government to fully address the underlying source of the current unrest. Turning these fundamental problems into criminal justice problems merely defers the governance problems that have emerged. The Government needs to take up its proper role to guard Hong Kong’s autonomy and honestly represent Hong Kong concerns to the Central Government. While protesters might wisely consider a greater variety of non-violent strategies only the Hong Kong Government is in a position to restore confidence in governance. This will require a sincere effort at dialogue with the protesters and a substantial effort to honestly represent Hong Kong concerns about compliance with the Basic Law. A failure to do so will surely cast a dark shadow over Hong Kong’s rule of law and spawn continued resistance.

Professor Michael C. Davis of the University of Hong Kong Faculty of Law specializes in constitutionalism and human rights. Image Credit: CC by Pasu Au Yeung/Flickr.