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Some Soul-Searching after the Occupy Central Movement

January 28, 2015

With the peaceful ending of the Occupy Central Movement (OCM), Hong Kong’s struggle for democracy has turned a new page. The two-and-a-half-month-long mass civil disobedience was unprecedented in its scale, epic in its manifestation, and potentially lasting in its impact on Hong Kong’s constitutional development. The OCM was also highly controversial and divisive. When all the dust settles, Hong Kong will have to do some serious soul-searching to rediscover its core value, to redefine its identity, and to locate itself in China.

The Burden of “One Country, Two Systems”

Hong Kong is a difficult place for China to govern. For central authorities in Beijing, Hong Kong remains uncharted waters in many fundamental aspects. Notwithstanding China’s political and economic power, Hong Kong proves that it is extremely costly and difficult, if possible at all, for Beijing to censor the media there, to clamp down on its civil society, and to dictate to its judiciary. The Communist Party of China (CPC) has yet to master the art of governing a free society such as Hong Kong. From a governance perspective, “one country, two systems” presents an unprecedented challenge to the communist government. To maintain Hong Kong’s unique capitalist social, economic, and political system requires extraordinary efforts from both sides of the border. Absent those efforts, there is a natural tendency for Beijing to create political assimilation and fusion that would result in the eventual diminution of Hong Kong’s alternative system.

“Open Citizens’ Square, keep up resistance, welcome dawn, withdraw NPC Decision, umbrella disobedience, no retreat, no yielding, no fear, love and peace, march forth bravely, speak up,” Admiralty, October 5, 2014. HRIC photo.

Maintaining Hong Kong’s economic prosperity and political stability has been a thorny issue for Beijing. Seen from Beijing, Hong Kong has, since 1997, become not only an economic burden but also a political liability. The prevailing perception on the mainland is that Hong Kong’s continuous economic stagnation necessitates policy support from the central government and restriction of competition from other Chinese cities, in order to pump up the Hong Kong economy. Politically, Hong Kong’s persistent demand for democratization and its direct and indirect influence on the mainland may be posing a challenge to the mainland political system. Hong Kong’s resilient struggle for autonomy is seen as presenting similar challenges already apparent in China’s peripheries: terrorist attacks in Xinjiang, self-immolations in Tibet, and political agitation in Taiwan. The worry in Beijing is that Hong Kong may slip away from Beijing’s grip, and that a democratized Hong Kong may cause a chain reaction in other parts of the mainland. Indeed, the more conservative wing of the CPC may prefer to roll back China’s commitment to gradual democratization in Hong Kong, if at all possible, and would be happy to see Hong Kong vote the limited reform package. It is in this context that we understand the difficult relations between Hong Kong and the central government authorities.

Hong Kong’s Frustration

By many measures, Hong Kong’s achievements in recent decades have been exemplary. It is a relatively high-income society, with a GDP per capita (PPP)[1]of $52,984 in 2013. Hong Kong shares many characteristics with other high-income societies: it is open and cosmopolitan, and has a solid economic foundation and a vibrant civil society.

Hong Kong has also been known in the past for its clean and accountable government and for tackling perceptions of corruption. Transparency International ranked Hong Kong 15 out of 177 countries in its 2013 Corruption Perceptions Index. With a score of 77 (out of 100) in the ranking, Hong Kong was comfortably the second best in Asia after Singapore.

Hong Kong’s freedoms and civil liberties have also been recognized. The Fraser Institute, a Canadian think tank, ranked Hong Kong third in the world for “human freedom” in 2013, just below New Zealand and the Netherlands. In the same year, Freedom House, a U.S. nonprofit focused on democracy and human rights, assigned Hong Kong a rating of 2 (on 1 to 7 scale, 1 being the best) for its respect for civil liberties.  

Due largely to an effective and accountable police force, Hong Kong ranked fourth among 99 jurisdictions in 2013 for its level of order and security (after Japan, Singapore, and Denmark), according to the United Nations Development Programme.

So, how to explain the passion and determination of young people who have taken to the streets to make their voices heard and the unprecedented participation in and support for the OCM? What are they worrying about?

Plants starting to grow in the concrete, Admiralty,
October 13, 2014. HRIC photo.

The worry in Hong Kong is not whether there will be universal suffrage for the election of the Chief Executive in 2017 but, rather, whether Hong Kong can maintain its prosperity, freedom, and way of life, summed up in the “high degree of autonomy” promised to Hong Kong’s people by Beijing as part of the conditions for the handover of sovereignty by Britain. All of these, according to the common perception, are vanishing right in front of the eyes of the Hong Kong people but achievable through the “one country, two systems” political design. Hong Kong's protests highlight bigger questions about the future of a city that risks losing hard-won political and economic gains. Indeed, while Hong Kong is still performing reasonably well by some on key indicators, there are good reasons to be concerned.

Since its handover from Britain to China in 1997, Hong Kong has experienced slower economic growth than South Korea, Singapore, and many other nations—not to mention China, from which Hong Kong’s economy has been expected to benefit. Hong Kong's economic status vis-a-vis Singapore, a major rival in the region, illustrates the point. In 1997, Hong Kong’s GDP per capita was far higher than that in Singapore. But by 2013, the positions were reversed.

Politically, as a Special Administrative Region of China, Hong Kong has a political destiny constrained by the authoritarian system in China, and that constraint has started showing its cascade impact in many spheres in Hong Kong. The judiciary has had a difficult time interacting with the National People’s Congress, China’s legislature and Hong Kong’s new sovereign authority. There has also been a perceived sharp decline in Hong Kong’s press freedom, with allegations of increased censorship and self-censorship. In the first World Press Freedom Index prepared by Reporters without Borders in 2002, Hong Kong ranked 18 out of 139 countries. By 2014, Hong Kong's ranking had sunk to 61of 180 countries.

Despite past advances, corruption and improper business dealings among elites are also a serious concern. Again, the comparison with Singapore is enlightening. Singapore has been among the top five in Transparency International's list since 2001 while enjoying impressive economic growth. Hong Kong, in contrast, was knocked down to 17 in 2014, one of its lowest rankings since 2000.

“Some things—if you don’t deal with now, you’ll never be
able to,” Admiralty, October 13, 2014. HRIC photo.

Surveys of Hong Kong residents reveal growing concerns about quality of life, including issues ranging from housing affordability to pollution, inequality, stress, and press freedom. According to a survey by the Chinese University of Hong Kong, quality of life in Hong Kong has generally declined in the past 10 years. The Quality of Living report by Mercer, a global consulting firm, ranked Singapore well ahead of Hong Kong in 2012, a factor that could impact Hong Kong’s ability to attract top-flight talent as a global financial center.

With the perception that Hong Kong's hard-won advantages are slipping away and promised democratic reforms have stalled, Hong Kong’s politics have become more polarized and static than ever before. Can Hong Kong move forward economically, socially, and politically without the reforms the people are demanding? Unfortunately, in recent years, Hong Kong's political parties have largely been reduced to single-issue political machines. Without first achieving genuine universal suffrage to produce a legitimate political leader who can transcend the political divide, the protesters argue, the many advances Hong Kong has made, including its rule of law and a reasonably clean and accountable government, will disappear.

But Hong Kong is not a typical transition society. Compared with societies that have undergone color revolutions in the past decades, Hong Kong remains a unique place. For the protesters and people in Hong Kong in general, the battle has been fought mainly to keep what they already have. The icing of democracy has been sought after not to achieve new freedoms but to secure the freedoms, prosperity, and rule of law in existence and potentially at risk. Here are the dilemmas that Hong Kong faces: can it preserve existing freedoms and prosperity without achieving genuine universal suffrage? Can the mass protest through civil disobedience persuade Beijing to allow Hong Kong genuine universal suffrage? And will civil disobedience endanger Hong Kong’s freedom and rule of law?

The Fragility of Hong Kong

It may be a trite thing to say that the rule of law is essential for Hong Kong’s freedom and prosperity, but people from different walks of life in Hong Kong have repeated this claim over and over again in the past few months. Critics of the OCM are quick to point out that civil disobedience not only violates certain laws but also damages Hong Kong’s rule of law tradition. Mr. Benny Tai, one of the three OCM organizers, who has passionately advocated for and organized the movement, also says that he treasures the rule of law. For him, Hong Kong’s rule of law tradition is at risk and rapidly eroding. Given Beijing’s growing impatience with the “one country, two systems” policy, there is a strong need to give people a wake-up call so as to protect and strengthen the rule of law in Hong Kong in the longer term. 

What do people have in mind when they talk about the rule of law in Hong Kong? For some, it is first and foremost judicial independence, which calls for adherence to legal rules and principles and the courage of the legal profession to exercise that adherence without bias.

One neglected aspect in Hong Kong’s rule of law discourse is the importance of accountable and effective law enforcement, especially by the police, in creating a sustainable rule of law tradition. 

Political scientists since Thomas Hobbes have identified the maintenance of peace and order as the core function of a legitimate state. In a society with a deficit of democracy, social stability and effective control of crime provide adequate legitimacy. In that regard, police effectiveness and accountability are indispensable in legitimizing a political order. Criminologists have also proved that police matter the most in maintaining peace and order and it is principally the diligence of police men and women on the front line who make us safe. It may not be much of an exaggeration to say that Hong Kong is one of the safest cities on earth and Hong Kong has one of the best police forces in the world. 

Admiralty, September 28, 2014. HRIC photo.

Hong Kong has come a long way in building and maintaining a well-disciplined, highly regarded and effective police force. It has taken the collective effort of generations of people to create this reality. The Hong Kong Police Force excels in two fundamental ways. The first is its political neutrality in the sense that the police enforce the law fairly, equally and, above all, effectively, without political considerations entering into the process. This important, relative distance from politics has allowed the police to develop a high level of professionalism, effectiveness, and accountability in Hong Kong. Second, an accountable and effective police in turn nurtures fine police-and-community relations, and the degree of mutual trust between the police and citizens is high. 

The OCM has unfortunately placed tremendous pressure on the police and posed challenges to both political neutrality and community relations. Without doubt, it is extremely difficult, if possible at all, to insist on neutrality in all circumstances in policing given the inevitable closeness between police and politics. With the sensitivity of all parties involved in the OCM and the political attention that the movement has received, it is not possible to avoid political pressure entirely, either from Beijing or from a worried Hong Kong government. The use of force on the first evening of the OCM was plainly excessive and unnecessary. It is hard to believe, as the government has argued, that it was merely an operational decision which led to this unprecedented use of force. The Hong Kong police force, given its experience in public order policing and its level of professionalism, would have known how to manage matters better. It is highly likely that the OCM has rattled either Beijing or the Hong Kong government into dictating some police operational matters. Police professionalism may have been sacrificed to political expediency.

Riot police in Central, 9:45pm, September, 28, 2014, moments
before tear gas was used in Admiralty. HRIC photo.

There is also the second, and a bigger, disaster—the high level of tension between the police and a significant sector of the public. Effective police work relies on public support and trust between the police and the public as keys to any successful maintenance of public order. Unfortunately, the OCM, which started with a demand for Beijing to withdraw its most recent decisions on the 2017 election of the Chief Executive, slowly and painfully mutated into a direct confrontation between the police and the public. The frustration arising from this process has hijacked the original objectives, and there is the possibility that the police will become the scapegoat in the blaming game.

As the OCM continued, it was becoming crystal-clear that Hong Kong’s political system, the police system in particular, is more fragile than what has been taken for granted. Hong Kong has a decent police force that the people in the territory are proud of, but the city may lose it more quickly than people can imagine. As a law enforcement agency, the police are ill-fitted to meet competing political demands. The force is bound to be hard-pressed in maintaining order in an increasingly polarized society. Significant changes in the external environment could swiftly cause a chain reaction within the police force leading to a qualitative change in the internal dynamics. There may be an authoritarian DNA in any police force that may manifest itself in certain circumstances. As events have shown, the OCM generated such massive international and domestic pressure that our policing system had difficulty bearing at times. Even if, as almost everyone hoped, the OCM were wound back greatly and some discussions had been underway, we have learned a most important lesson about how rapidly the foundations of our high quality police force can be placed in jeopardy.

Hong Kong has long enjoyed judicial independence, an active legal profession, and a free press, but Hong Kong did not always have the rule of law as we define the term. It is the changes in the policing in Hong Kong, especially since the 1970s, which have played a key part in this vital game change. A police force that is clean, effective, and accountable is what makes Hong Kong’s rule of law possible.

The Double-edged Sword of Rule of Law

While the pursuit of democratic values and the rule of law are both close to the heart of Hong Kong people, the OCM revealed a rare moment of a possible tension between the democratic impulse and rule of law imperatives. The OCM, its lack of planning and organization notwithstanding, has clearly demonstrated Hong Kong’s democratic passion and resilience. For a brief period of time, the movement gathered so much momentum and the students appeared to be unstoppable. Tear gas, pepper spray, police batons, and water cannons did not intimidate them; triad societies did not terrorize them; political smear and character assassination did not shake them; and well-intentioned counsel did not move them. Ironically, it was the court order that provided a fatal wedge in the OCM, dividing the supporter community and undermining the morale of the occupiers. After a few rounds of clarification and appeals, it became abundantly clear that judges had ordered the end of the OCM, and the remaining issue was how to exit. It was the authority of the court that effectively suppressed the democratic impulse.

Admiralty, October 29, 2014. HRIC photo.

An independent court is a first order institution in Hong Kong’s constitutional system, and judicial independence is a core value of Hong Kong of which the people are immensely proud. To unpack an independent court, one can find a group of professional judges with specialist knowledge, and an absolute fidelity to law which decides cases after a thorough deliberation with counsels. In dealing with applications for injunctions against the OCM, the courts first declared their political neutrality, stating that political aspirations of the occupiers are irrelevant in the courts’ deliberation. Once a case entered the court, a passionate political campaign was effectively reduced to a legal issue subject to sophisticated legal analysis, which most of the occupiers would not be able to understand and appreciate. Lawyers on behalf of the OCM were mobilized to challenge the order but were straightjacketed into making technical arguments that are relevant to the legal case, as if the entire OCM is about the interpretation of some legal rules.

In conducting the legal analysis, the court in Hong Kong remains an effective and powerful institution in making the OCM accountable to the law. Indeed, the court is the only institution that is powerful enough to disarm the passionate participants. In an authoritarian system, judicial neutrality is the aspiration of generations of law reformers, and an independent court is called upon to empower citizens and to bring arbitrary power under judicial control. In Hong Kong’s mature rule of law system, however, the court, the most treasured institution, has worked to contain the democratic aspiration and frustrate a democratic pursuit.

Admiralty, December 9-10, 2014. HRIC photo.

The OCM and the Strength of Hong Kong

The OCM has shown the outside world and China that there is a political Hong Kong in addition to the commercial Hong Kong and cultural Hong Kong. It has demonstrated the determination and agency of the younger generation in the territory to grasp their future into their own hands and to control their own destiny. Hong Kong should not be taken for granted. More importantly, the OCM has showcased the strength of Hong Kong’s legal system, the power of the rule of law, and the willingness of the residents ultimately to work through the existing institutions no matter how hard it is. Hong Kong is the envy of the world, and people realize they have a lot to lose if the delicate constitutional reform is not handled with great care given the peculiar circumstances that Hong Kong is in. 

Admiralty, December 9-10, 2014. HRIC photo.

The OCM has awakened the political awareness of the people—the awareness that there is a democratic deficit in Hong Kong’s governance structure, that the deficit is fatal to Hong Kong’s future development, and that there is an urgency to fix it. The OCM also confirms the democratic determination of the people and the centrality of democracy as a practice in Hong Kong politics. Whether in support of OCM or not, people from different political stances claim their commitment to future democracy in Hong Kong. For the duration of the OCM at least, everyone alleged their support for democracy without being a democrat. Democracy is now an endgame, its seeds have been planted; and there is simply no return. The movement saw the birth of a new generation of potential political leaders who, with proper nurturing, are better prepared and positioned than their mentors to lead Hong Kong forward. There may be a few temporary setbacks in the immediate aftermath of the OCM, but Hong Kong will move onward as it has always done.

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[1] As expressed in purchasing power parity.

About the Author

Fu Hualing (傅华伶) is a Professor at the University of Hong Kong Faculty of Law. His research interests are constitutional law and human rights, with a special focus on the criminal justice system and media law in China. He is coauthor and co-editor of Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China and Resolving Land Disputes in East Asia: Exploring the Limits of Law. He is Co-chair of the board of directors of Human Rights in China. (Photo Credit: Sam Hollenshead.)

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