翻譯戴耀廷教授 反思公民抗命與法治 一文，如有錯漏，祈希指正。 Translation of Reflections on civil disobedience and the rule of law by Prof. Benny Tai Yiu Ting, 戴耀廷 The relationship between civil disobedience and the rule of law has caused controversy ever since I proposed Occupy Central. The Umbrella movement held in Hong Kong this past September demonstrated a clear controversy between the civil disobedience and the so called rule of law. The great size and length of this movement was by far bigger than originally thought, and with and even larger number of people affected. The relationship between the civil disobedience and the rule of law involves a court injunction, making it even more delicate and complicated. So here, I want to retell the relationship between those two. I propose four levels for the rule of law “The Elementary Level”, “The Legal Basis, The Law Must Be and According To The Law. As it is expected and based on the basic quality requirements, the law should be open, clear and stable. The law must, says the Government, to take the law as a fundamental tool both for governance and those who govern. At the same time, by using monitoring mechanisms, the Government ensures that the internal governance moves according to law officials. The law covers important areas of people´s lives. It provides the means for citizens to peacefully resolve disputes to which law-abiding citizens are aware. The requirements for substantial legal content are mainly used for maintenance of the regime. On the other hand is less used for the protection of the fundamental rights of all citizens.Stepping into the high-end rule of law, it is said it should be functional by nature (just as a ruler’s tool). Later on it turns into the subject’s property (subject to the power of the ruler), and finally being used for “the purpose of” (the law’s purpose should be the practice of justice). In this case, the rule of law is at the high-order level and it seeks to “limit the right of law and to achieve justice.The phrase The law limits the right to” establishes different external mechanisms where it limits the power of the government through decentralization. The mechanisms involving “To limit the right”, implies that the Constitution clearly rules the allocation of government powers (limits the right of the Constitution), as well as to give the rights to an independent court to monitor and review the legality and constitutionality of government actions (Judicial limited rights). “To limit the right” it also implies the establishment of an independent mechanism such as the Office of the Ombudsman, for government officials to accept citizenship complaints and other investigations (administrative limit rights). Among other, it allows citizens to elect political leaders (political limited rights) through a fair electoral system, and it ensures that independent media and independent civil society could monitor the government’s actions (limited social rights). An important indicator of to limit the right of law is generally subjected to effective suppression of corruption (especially government officials and syndicates corruption). Regarding the response to the deserving demands, it comes To Fatah Justice. This one mentions that the law must ensure that citizens to get some minimal procedural safeguards (program justice), as well as legal proceedings to protect the basic human rights (civil justice). It guarantees citizens’ equal political rights (political rights justice), it ensures that citizens can enjoy basic living standards (social justice), and it facilitates the establishment of a program that allows citizens to discuss all sorts of social policies in order to reach a consensus (discussing justice).Another level of the rule of law, The Law Must Be requires citizens to have a law-abiding awareness, including violations of civil disobedience. But, how can we be compatible with it?Civil disobedience can be understood as people in good faith and based on justice (not for their own benefit but for the one of the society as a whole), that in an open, deliberate and illegal limited way, try to change the unjust system. In order to enable citizen’s disobedience to strive for justice, it is necessary to get more people to agree to a reasonable practice. The civil disobedience action it also requires non-violence, to have exhausted legal channels that failed to meet the target, and to have a reasonable chance of success.Civil disobedience is not an ordinary offense, but under certain circumstances, it can be. If the rule of law has reached to limit the right of law and in order to achieve justice law, then there is no need for civil disobedience, then the law must be is a more solid foundation for the two levels of higher order law. However, the development of the rule of law is often the bottleneck, that is because officials are at the law must level. They reach this level because of the limits inherited from rights’ mechanisms, rather than just external mechanisms. Also because of human nature, it can be difficult to reach officials with the law must be requirement, that would force citizens to civil disobedience and to break the law, in order to make the legal system bottleneck into the law limits the right to level, so that the law must be obtained in accordance with can really be achieved.But in order to limit the right of law makes it difficult to ensure that the government actually rules the law and might not be able to achieve justice. Therefore, even if the rule of law has reached the limits to law rights level, there are still areas of the law with less than righteous requirements. Because of this, then the citizens will continue to use the method of civil disobedience, in order to promote the rule of law and to move forward again, trying to reach in order to achieve justice law level. We must understand that civil disobedience is not a normal or common state, but a response to the development of the rule of law and civil law legal system. It seeks to make a more sophisticated level and it’s subjected to certain conditions. Then this shows a judicial authority and civil disobedience to law limiting rights under a great tension. For example, if the independent court would restrain the exercise of its jurisdiction, Would the citizens continue their illegal activities?, or would cause citizens to comply or not with it? Because the legal system has reached to limit the right of law, then civil disobedience need of promoting the evolution of the rule of law, may not be so urgent.But if we understand that the law of civil disobedience is not a normal course of evolution, but just certain circumstances that will be carried out under specific conditions, it will be easier to accept, even in to law limiting rights and judicial authority. To certain point, civil disobedience can still be reasonable. We want to know in order to limit the right of law instead of in order to achieve justice law under the judicial authority. Even if the judicial power is independent, there are still great limitations, because the court’s rules only go in strict accordance with existing law.If the law itself cannot take care of the factors leading to civil disobedience, then action occurs. That’s where civil disobedience is then carried by those who fight for justice and it becomes an opportunity to change the content of the law and achieve real justice. Civil disobedience can choose not to comply with a court order, not to provoke a deliberate disrespect or to challenge the authority of the court. They might even not comply with a court order under certain circumstances or conditions, simply to hope that through civil disobedience action they can promote the rule of law to a more righteous character. In fact, under the Act up to justice with limited judicial rights they seek to play the largest role in the protection of the rule of law to a long-term. It also aims to demonstrate the judicial authority that the judicial power is due to the practice of justice, rather than just mechanically perform any law. Of course, those who choose not to comply with a court order of civil disobedience they must be prepared to bear the legal liability. Now facing with the situation in Hong Kong, we have reached in order to limit the right of law and judicial limited rights to a very mature level. At the same time in terms of political authority and “political equality”, “in order to achieve justice law are still subject to legal protection. Even though there were a large number of participants during the Umbrella Movement, the police still had enough ability to put many under arrest for civil disobedience, or to use the force to move them away from the highly occupied streets. Though, the police have also failed to take action and it has led some people to apply for court injunction. This act of civil disobedience will continue in the months to come and Hong Kong will continue to go on with this unique situation. Even if the police power conferred prevents them to handle the case and instead use the force, which is much weaker than the civil injunctions, it will also be unfavorable. We should understand that civil disobedience is only carried out under certain circumstances. The civil disobedience impact under law-abiding consciousness is very limited. So, civil disobedience who fails to comply with the law or a court order can be a serious impact on the rule of law or the law-abiding spirit. It totally ignores the significance of the rule of law and civil disobedience nature. Of course, the sense of civil disobedience should not change its nature, as it should be just a sincere civil disobedience by those who know and accepted it.
Posted on: Mon, 17 Nov 2014 18:16:09 +0000
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