• Home
  • About us
  • People
  • Blog
  • News
  • Video
  • Webinars
  • Seminars
  • Podcasts
  • Publications
    • Journal Articles
    • Working Papers
    • OxHRH Annual Report
    • Books & Chapters
    • U of OxHRH Journal
  • Events
  • Journal
  • GDPR Compliance
  • Home
  • Home OHRH
  • Media
  • Search
  • Test page
  • Publications
  • About us
  • News
  • A big page
  • Contact
  • Disclaimer
  • Site Map
  • Legal
  • Event archive
  • Blog
    • Comments Policy
    • Contribute to the Blog
  • Events
  • Journal
  • People
  • publications test
  • Publications New
    • Inner Publications Landing
  • #16346 (no title)
Oxford Human Rights Hub logo
  • Home
  • About us
  • People
  • Blog
  • News
  • Media
  • Events
  • Publications
  • Journal

A Human Rights Defence of Hong Kong’s Occupy Central

Mathias Cheung - 16th August 2014
OxHRH
Constitutions Institutions and Nation Building
'Global Democracy' Sign hanging on tent.
The peaceful assembly planned in Hong Kong is a response to the government's proposed undemocratic electoral reforms.

With the Hong Kong Government set on introducing an undemocratic electoral reform in the coming months, Professor Benny Tai has proposed to organise a peaceful assembly, ‘Occupy Central with Love and Peace’. It has been condemned and denounced as an affront to the rule of law.

The background to this saga is the Hong Kong Government’s proposed electoral reforms. With the imprimatur of Beijing in 2007, the Government now plans to introduce universal suffrage for Chief Executive (head of government) elections, but candidates must be nominated by an unaccountable nominating committee. This carries the imminent risk that ‘undesirable’ candidates will be screened out, contrary to Article 26 of the Basic Law and Article 25 of the International Covenant on Civil and Political Rights (‘ICCPR’).

Occupy Central is a response to this undemocratic move, but is seen as an act of civil disobedience due to possible contravention of the Public Order Ordinance.

The Government has gone all out in undermining the legitimacy of Occupy Central. Chief Executive C. Y. Leung has threatened to crack down on the movement, condemning it as illegal. The Secretary for Security has claimed that the movement violates the ‘rule of law’, as have officials in Beijing.

Simultaneously, a pro-Beijing Alliance has launched an anti-Occupy Central signature campaign in the name of rejecting ‘violent’ and ‘unlawful’ activities. With Government officials and police officers signing , it seeks to turn this into a game of numbers, claiming an overwhelming 1.1 million signatures in opposition to the 792,808 supporters of Occupy’s earlier civil referendum.

The argument based on the rule of law is seriously under-assessed. The rule of law is not the sum total of the effective application of all enacted rules of law. If so, Nazi Germany would be a paradigm. There is a difference between the Government’s ‘rule by law’ mentality and genuine ‘rule of law’. A democratic society upholds ‘the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens… basic human rights’ (see Lord Griffiths inR v Horseferry Road Magistrates Court, ex parte Bennett).

In the case of Occupy Central, the rule of law entails the protection of the constitutional freedom of expression and peaceful assembly enshrined in Article 27 of the Basic Law from Government crackdown. Article 11 of the Basic Law provides that ‘no law enacted by the legislature… shall contravene [the Basic Law]’. If subordinate statutory law (like the Public Order Ordinance) poses an absolute bar on Occupy Central and prompts the arrest of participants, it disproportionately restricts the overriding constitutional right to peaceful assembly. The enforcement action may be unlawful and unconstitutional.

Therefore, it is by no means clear that the statutory restrictions are lawful, or that a peaceful assembly in public space (without any trespass on private property), on the pivotal issue of democracy, is by definition unlawful. Indeed, the Human Rights Committee’s Concluding Observations in 2013 expressed concerns over ‘the application in practice of certain terms contained in the Public Order Ordinance, inter alia, “disorder in public places” or “unlawful assembly”, which may facilitate excessive restriction to [Articles 19 and 21 of the ICCPR]’, and ‘the increasing number of arrests of, and prosecutions against, demonstrators’.

General Comment No. 34 makes it clear that public order ‘may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights’. As the ECtHR put it in Kuznetov v Russia , ‘in a democratic society based on the rule of law, the ideas which challenge the existing order must be afforded a proper opportunity of expression through the exercise of the right of assembly’.

The signature campaign will not prevail, for it is precisely when a minority voice is being subdued that the law must step in to protect fundamental rights. The rule of law, properly understood, does not provide an argument against Occupy Central, but one in favour of protecting it to a proportionate extent. The current House of Commons Inquiry into the implementation of the Sino-British Joint Declaration ought to focus on the protection of rights and freedoms in Hong Kong as precipitated by Occupy Central.

Author profile

Mathias Cheung is a recent BCL graduate. He is currently a research assistant at Oxford University and a BPTC student at City Law School.

Citations

Mathias Cheung, “A Human Rights Defence of Hong Kong’s Occupy Central”, (OxHRH Blog, 16 August 2014) <http://humanrights.dev3.oneltd.eu/?p=13104> [date of access].

Comments

  1. David says:
    August 16, 2014 at 12:57 pm

    Mathias, In all the noise, clear and reasoned voices like yours are precious and greatly needed at this time. Please keep up this very good work!
    David
    HK Resident

    Reply
    1. Mathias Cheung says:
      August 16, 2014 at 4:36 pm

      Thank you for your kind words, David. Indeed, HK needs clear and rational voices to dispel myths and distractions (fuelled by the anti-Occupy campaign) which divide the people unnecessarily – we need to stand together on a cause for the common good. Hopefully, this can help the general public make an informed judgment on these pressing matters and decide on the right cause to support.

      Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Related blog posts

Fighting for fair representation for women through dissolution of the Kenyan Parliament
Kenya’s Constitutional Court Certifies Structural Interdict as an Interlocutory Remedy
Human Rights, International Law and The United Kingdom Internal Market Bill 2020

Related events

The Impact of Brexit on Equality Rights

Related news

Discussion on Constitutional and Civil Liberties Violations in Kashmir – 11 October 2019, Oxford Law Faculty

Contact Us

oxfordhumanrightshub@law.ox.ac.uk

Oxford Human Rights Hub
The Faculty of Law, University of Oxford,
St Cross Building,
St Cross Road,
Oxford OX1 3UL

© 2021 Oxford Human Rights Hub | Site by One


Sign up for the OHRH Newsletter

Your email address*:

New email sign up
reCAPTCHA
* Find out how we use your data