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.