Benny Tai is an Associate Professor of Law at the University of Hong Kong who received widespread media attention in January 2013, when he initiated the Occupy Central with Love and Peace campaign for universal suffrage in the 2017 Chief Executive election and 2020 Legislative Council Elections. Tai is currently a member of the Panel of Advisers of the Office of the Ombudsman. Tai is currently based in Cambridge Faculty of Law as a visiting lecturer.
What is the general background of the movement you founded, Occupy Central with Love and Peace?
All the changes to the political system were initiated and designed by the central authorities of the sovereign state governing Hong Kong.
It is obvious that under this top-down model of political change, all democratic reforms in Hong Kong were introduced to serve primarily the political interest of the master rather than out of a respect for the political right of Hong Kong people. The activation, pace, scope and form of the changes were set to advance the master’s interest which may not necessarily be also in the interest of the people most directly affected by the system changes. The desire in Hong Kong people for more democracy had been aroused through having the first taste of democracy. They were also empowered to an extent strong enough for them to claim and exercise a genuine right to self-govern Beijing judged in 2004 that the time was not ripe for launching universal suffrage in Hong Kong because she could still not win the hearts of Hong Kong people, universal suffrage to be introduced in 2007 was postponed to 2012. A similar assessment was made in 2007 and the introduction was further postponed to 2017. I had suggested in early 2013 that Hong Kong people might have to resort to civil disobedience if they really want to have democracy in Hong Kong.
The “Occupy Central with Love and Peace” Movement (“OCLP”) was initiated in March 2013 by me and Professor Chan Kin-man, a sociology professor at the Chinese University of Hong Kong and Reverend Chu Yiu-ming, a retired Baptist pastor and a veteran social activist. Most of the democratic forces in Hong Kong were united under the umbrella of OCLP.
What is the objective of the movement?
The ultimate goal of OCLP is to push for an election method for the Chief Executive of the HKSAR that can satisfy the international standards on universal suffrage provided under Article 25 of the International Covenant on Civil and Political Rights applicable to Hong Kong through Article 39 of the Basic Law. The international standards on universal and equal suffrage include at least three requirements that every eligible voter has an equal number of votes, equal weight for each vote and no unreasonable restriction on the right to stand for election. Any restriction must be justifiable on objective and reasonable criteria. A restriction that can be used to screen out a candidate purely on grounds of political opinions would surely not be considered reasonable. The planned civil disobedient action was to have at least 10,000 people occupying main streets in the Central, the central business district of Hong Kong. The protesters are expected to adhere strictly to the spirit of non-violence and they should not bodily struggle with the police. All protesters would only peacefully sit down on the street waiting to be removed by the police by whatever degree of force that would be used upon them.
You refer to the Umbrella movement fast gaining ground in HK? What is it?
As Dr. Martin Luther King said, the objective of civil disobedience is to raise the concern of other people with the injustice in the existing laws or systems. Winning people’s sympathy and support may cause them to join or even initiate subsequent actions to change the unjust laws or systems. The goal of OCLP is the same. In preparing for the deliberative meetings and the civil referendum, the works aimed also to prompt more people of Hong Kong to understand the meaning and significance of universal and equal suffrage as a fundamental right enjoyable by all people. People of Hong Kong were also impelled to reflect on the role of civil disobedience in striving for democracy and justice in Hong Kong and consider whether they are willing to pay higher personal cost for realizing the ideal. At the beginning, not many Hong Kong people could understand the meaning of civil disobedience. Even less would accept or practice it. After the works of the OCLP for more than twenty months since early 2013, at least one-third of the population now support using civil disobedience as a means to strive for genuine universal suffrage in Hong Kong. Changes in the political and legal culture have been achieved. Even though the majority of the population is still against civil disobedience, supporters of civil disobedience has reached a critical level making it difficult for the Government to ignore their demand.
How can democracies around the world understand from your civil disobedience campaign? When should they use it?
Every place has its unique situation and I cannot say whether the methods we used in Hong Kong would be useful in the places. There are several features we have incorporated into our civil resistance action and reference can be made if civil resistance movement in other places find appropriate. First, we limit ourselves from the very beginning to commit civil disobedience, which is only one form of civil resistance. The “Occupy Central” action may create some social disturbance but that is not the main objective of the non-violent action. Dr. Martin Luther King, J., outlined the spirit of civil disobedience in his “Letter from a Birmingham Jail”. This can be referred as the pure model of civil disobedience. According to Dr. King, a civil disobedient act like other non-violent actions is illegal, but a person who has committed a civil disobedient act will voluntarily surrender herself to the authorities and is willing to bare legal responsibility. Dr. King has also set conditions for civil disobedience. One must first collect enough information to ascertain whether injustice does exist. Existing mechanisms to change the unjust law or system must be exhausted first. One must also carefully calculate the cost that might be incurred before taking part in any civil disobedient action.
The Catholic Diocese of Hong Kong in “An Urgent Call for Earnest Dialogue and Resect regarding Universal Suffrage and Civil Disobedience” added another condition. The act of civil disobedience must be a just and proportionate response to then injustice that it reasonably seeks and hope to prevent or remove.
The OCLP committed itself to these principles of civil disobedience in organizing the “Occupy Central” action. Through the action, it is hoped that Hong Kong people will be alerted to the injustice and unfairness in a system of election that cannot satisfy the international standards on universal and equal suffrage. Civil disobedient acts would only be committed after OCLP’s proposal on the election method of the Chief Executive were not to be accepted by the Beijing Government after negotiation. People should have the right to make their choices independently in a democratic process. In addition, they should only make the decision after a detailed and well-designed deliberative process in which they receive adequate and balanced information on the options and are facilitated to understand the underlying ideas and viewpoints of people holding different opinions. A series of deliberation meetings were organized to achieve this objective. On 9 June 2013, the Deliberation Day One (DDay1) was organized. Those who agree with the convictions of OCLP, whether they would in the future commit the civil disobedient act or not, were invited to join the deliberative meetings. The purpose of DDay1 was to set the agenda for the movement. Around Seven hundred citizens of Hong Kong including leaders, representatives and members of major pro-democracy political parties and civil society groups and independent persons participated. Participants were assigned to small groups each of around 15 persons. Neutral facilitators facilitated the dialogue in the small groups. Each group was asked to decide 2 most important issues in organizing the coming democratic movement. After the deliberation, all the issues submitted by all groups were consolidated into seven principles, which guided the coming actions of the movement. Deliberation Day Two (DDay2) included more than thirty different deliberative meetings co-organized by the OCLP and many civil society groups in Hong Kong including groups serving ethnic minorities and disabled people in the community. Meetings of DDay2 were held from October 2013 to February 2014. Deliberation Day Three (DDAY3) was to decide which specific proposals on the election method of the Chief Executive would be adopted by the OCLP. All proposals to be considered must satisfy the basic requirements of the international standards on universal and equal suffrage.
How can the opposition parties around the world learn from occupy central movement? Can this strategy be used in other Asian countries and against repressive regimes? How can they build on this movement? OR is this a movement just for Hong Kong?
The OCLP relies on professional input. This is especially important in ascertaining the concrete requirements of universal and equal suffrage. More than 790,000 Hong Kong people participated mainly through an electronic platform by casting their votes through their mobile phones, the Internet or at voting stations. The proposal suggested by the Alliance for True Alliance, an organization that includes almost all political parties in the pan-democratic camp represented in the LegCo, got the most support and that proposal was formally put forward by the OCLP to the Hong Kong Government for consideration. In a game, player acts strategically to respond to actual or perceived actions by other players. Therefore, a game is interactive. However, a player’s action must be able to generate sufficient impact or influence, actual or perceived, upon other players before they will be pressurized to react. In political relationships, the interactive relationships among different political forces, each with their political interests or political ideals, constitute a political game. No game does not involve risk. One cannot accurately predict all possible actions of other players and one also cannot foresee whether one’s action could generate any or what reaction from the other players. Action can only be planned on the basis of information in hand. Decision in a game is made rationally. The ultimate goal is to maximize one’s gain or minimize one’s loss, or to achieve one’s political ideal as far as possible. Political game does not need to be a game of life or death but can be win-win for all. Unlike other civil disobedience movements, the use of non-violent and civil disobedient acts to strive for genuine democracy in Hong Kong was announced long before its actual implementation. It is hoped that sufficient pressure could be generated upon Beijing for her to rationally reconsider her position in this round of constitutional reform. The purpose was to create enough social tension so that the door to negotiation on Hong Kong’s constitutional reform toward genuine universal suffrage could be opened.
What are some of the lessons learnt from the movement?
After the outbreak of tear gas, the nature of the democratic movement has changed. In the twenty months before the occupation, most democratic forces, moderates or radicals were able to unit under the united front of the OCLP. However, as the occupation did not happen as OCLP planned. Participants in this unanticipated occupation did not see any duty to follow the direction from the OCLP or even the student groups. They were there to voice their objection to the improper use of tear gas on students and peaceful protester. They wanted to express their frustration at the irresponsiveness of Beijing to the democratic demand of Hong Kong people rather than responding to any call from political leaders.
Occupation was a unique situation with so many physical and emotional constraints making it very difficult to introduce a democratic process for reaching consensus in the democratic movement. After the meeting of the students and the government officials, the OCLP tried to introduce an electronic voting system for supports of the Umbrella Movement to decide matters of common concern. Supporters were asked to go to the three occupied areas and logon to a Wi-Fi network specially configured for this purpose with a password to be provided on site. If the “Plaza Voting” could be executed, joint decision could be made and it would also be a breakthrough for similar actions in the world. However, owing to the strong objection from many occupiers worrying that their voices might be diluted by other supporters who have either never occupied or have gone home, the arrangement was shelved.
There is no longer any central leadership in the democratic movement, which is growing to be more and more pluralistic. This might be the strength of the movement, as the government could not use the strategy of decapitation to undermine the organization of the movement. However, it might also be a weakness. There was no easy way for supporters of the movement holding very diverse views to agree on any well-coordinated and strategic move during the occupation. They were divided on many issues:
Whether there should be further dialogue with the government? Whether the occupation was disproportionately long? Whether the nonviolence principle should continue to be adhered to? Whether one should turn oneself to the authorities or whether they should wait to be arrested? A bloody crackdown was the nightmare of many protesters throughout this period. This was particularly strong among those who are old enough to remember what had happened in June 1989 in Beijing. An imminent danger was constantly felt that the authorities were going to use higher degree of force than tear gas or even lethal force to end the occupation. The last occupied area at Causeway Bay was cleared on 15 December 2014 also without resistance. The second round of consultation of the constitutional reform was postponed whether the occupation started. The two-month consultation was resumed in January 2015 after 3 months of postponement and all occupations ended. There is no sign that Beijing is prepared to make any concession in this round of constitution reform. Even with a 79-day-long occupation, in the political dispute on Hong Kong democratic development, Beijing did not move an inch. The political culture of Hong Kong people has irreversibly changed. People are much more intelligible and receptive to the idea of civil disobedience. Many are also ready to make more sacrifice for Hong Kong’s democracy. Seeds of hope for democracy have been deeply planted in Hong Kong’s soil.
Do you plan to hold a similar occupy central movement in the future?
After the 79-day occupation, a new Hong Kong has evolved. The society will be more pluralistic, horizontal, networked and autonomous. No authority, norm or political power can flatten or suppress the pluralistic thoughts, values and actions blossoming in the community. More and more people will not accept hierarchical social relationships. Instead, people enjoying equal status will interact but not be lead in the newly developed horizontal relationships. Every autonomous individual will have her own thinking and the capacity to actualize it in her own ways. Yet, individuals are not dissociated from each other but will be connected as nodes in multi-nucleate and overlapping networks. In this network relationship, there cannot be any leader but only active members. Active members playing the role of coordinator closely knit other members in the same network and link separate networks together. Hong Kong’s democratic movement in the Umbrella Era must match the latest phenomenon by evolving a new shape. To bring out the pluralistic, autonomous and networked nature of the new era, each concerned group agreeing with the covenant will design and select the specific space, action, and method to implement the social covenant according to its nature and characteristics. The works of all groups in the whole process must still be coordinated. No matter how the organization of the Umbrella Movement will evolve, it is important that it must adhere to the spirit of democracy. If not, any democratic system established through the movement will not have roots and cannot last. In this process of dispute resolution, civil resistance is like planting the seeds and negotiation is like reaping the harvest of the struggle. It is critical in finding the right moment to enter into negotiation. Non-violent action usually comes before negotiation but the opposite can occur and the two can sandwich one other. When to end the direct action and when to start negotiation requires a lot of wisdom. This is very much in need in Hong Kong’s democratic movement. Through acquiring a better understanding of how civil resistance works, developing different tools of civil resistance like direct action, indirect action and negotiation, and accumulating the wisdom to use the different civil resistance methods strategically and timely, the democratic movement of Hong Kong may still need to wait for a right moment to launch another strike.
Despite the fact that the HK authorities have said that they would be strict on your involvement since you are a law professor and despite the fact that you are a scholar and law professor you broke the rule of law? Is that a valid argument?
There is no doubt that the Rule of Law is universally accepted to be a foundational component of good governance. But there is no universal definition of the Rule of Law resulting understandings in conflict. This can be seen from the controversies in the recent large scale “occupy movement” in Hong Kong striving for democracy. The peaceful protesters asserted that their actions though illegal were based on the spirit of civil disobedience. The aim of the civil disobedience movement is to bring constitutional and political changes to the governance system making it more just. It is consistent with the Rule of Law because the ultimate purpose of law under the Rule of Law should be achieving justice. Albeit paradoxical, breaking the law is to make the law better. In the opening ceremony of the legal year 2015, prominent figures in the Hong Kong legal community presented their different views on the proper relationship between the Rule of Law and civil disobedience. The Secretary for Justice of the Hong Kong Government, Rimsky Yuen, criticized the unlawful “occupy movement” as blatant challenge to the Rule of Law. To him, the Rule of Law is all about obedience to law or acting in accordance with law. Yuen believed that resorting to unlawful means for the purpose of pursuing democratic change could never be justified. It would only erode the Rule of Law.
The Chairman of the Hong Kong Bar Association, Paul Shieh, ridiculed that over-emphasis of the “obeying the law” aspect of the Rule of Law is the hallmark of a regime, which is keen on using the law as a tool to constrain the governed, rather than as a means to constrain the way it governs. Shieh agreed that there are historical examples where civil disobedience had brought political or social changes. However, there are limits to civil disobedience action. Participants must not cause excessive damage or inconvenience. He believed that the actual conduct of some protesters during the occupation might have overstepped legitimate limits.
Geoffrey Ma, the Chief Justice of Hong Kong Court of Final Appeal, found that most people had demonstrated respect for the Rule of Law in the “occupy” protests. Ma’s understanding of the Rule of Law is wider than Yuen’s and more like Shieh’s. Equality before the law, fidelity to the law and its spirit and judicial independence are fundamentals of the Rule of Law. As a judge, it is natural for him to emphasize this particular aspect of the Rule of Law. He repeatedly stressed that administration of justice by the courts must not be affected by extraneous factors, such as political factors.
A civil disobedient act is a conscientious, public, intentional, and limited act of breaking the law not for self-interest but for justice. An independent court is surely one of the main pillars of the Rule of Law for it can impose the necessary limitation on all the powers publicly exercised. However, under special circumstances and conditions, people would be justified to resort to unlawful means to achieve justice especially if justice could not be done through the court.
Do you intend to participate in active politics in the future?
I do not have any plan to run for political office. But I have joined the democratic movement for thirty years since my student time. Do we need to wait for another thirty years before we can see democracy in Hong Kong? Even if that is the case, I am still prepared to do so though I have confidence that it will come much earlier. I may even have the chance to see democracy in China within my lifetime. I may be too idealistic, yet I prefer to be naïve but with hope than realistic but disheartened.
I initiated the movement in my multiple identities as a constitutional lawyer, a democrat, a Hong Kong citizen and also a Christian. Public theology, a stream of Christian theology that addresses public issues from a theological perspective through public reason, provides a lot of insights in my process of integrating the orientations of these different identities. To me, this journey of democracy is not only political but also spiritual. Armed with my faith, I will not be lonely or weak in this long walk because I can be sure where my hope is in.
What are your views on the 2017 Chief Executive election in HK and the 2020 Legislative Council Elections? Do you see more youth and HKers asking for change and greater democracy as opposed to the views of the Alliance for Peace and Democracy in HK?
After the end of the occupation in December 2014, the Hong Kong Government re-initiated the second phase of constitutional development consultation in January 2015. The Hong Kong Government will put forward a concrete proposal for consideration by the Legislative Council in mid-2015. Under the present conditions, it is very unlikely that the proposal can get the needed two-third support from the members of the local legislature. Then the election of the CE in 2017 will continue to adopt the undemocratic election method used in 2012. The CE so elected will not have the legitimacy to deal with the ever-worsening governance conditions. In a Hong Kong without genuine universal suffrage, more governance crisis and political gridlock can be expected.
Hearing these, many people may lose heart. There is no doubt that the challenge of Hong Kong’s democracy ahead will be hard. From the experiences of other places, resilience is the key to the final success of democratic transition. We must and we will continue our non-violent struggle.
The 87 canisters of tear gas and the 79-day occupation have changed the fate of Hong Kong. The police might originally only want to stop more people from joining the thousands occupying the area outside the Government Headquarter. Out of everyone’s expectation including the police themselves, firing tear gas to peaceful protesters have provoked even more Hongkongers to come out of their safe homes and march in the streets. People were angry and heart-broken. The wave of occupation was almost unstoppable. Main streets in different parts of Hong Kong were occupied for as long as seventy-nine days.
The occupiers were not scared off by tear gas, pepper spray, batons, and attacks by hired thugs or even the threat of bloody clearance by the People’s Liberation Army. They stood firm to defend the front. Defensive “weapons” like plastic wrap, upturned umbrellas, medical masks, and foam mat shields were used to protect themselves. A new generation of democrats has born. Different from the previous stages of Hong Kong democratic movement, the backbone of the Umbrella Movement is this new generation of democrats. As compared with the previous generations of Hong Kong democrats, the Umbrella Generation is more aggressive in their actions, more pluralistic in their organization, more flexible in facing challenges and much tougher in striving for their goals.
All these characteristics were reflected in the occupied areas though expressed in different styles during the unforgettable 79 days. The movement has evolved into something very different from the original Occupy Central plan. Upturned, a tint of toughness is added to the original gentleness of umbrella. Creative but tragically heroic, umbrella is now the symbol of the new era of Hong Kong’s democratic movement and civil resistance.
New spiritual dimensions in addition to peace and love were added to the democratic movement during the occupation. Occupiers introduced green living and sustainable lifestyle into the “village” by building an urban farm and sorting all kinds of solid waste for recycling. Food, water and many necessities contributed by Hong Kong citizens were shared among the occupiers. Artworks were displayed to demonstrate Umbrella Generation’s unlimited creativity. Their eagerness for genuine universal suffrage was vibrantly expressed in diverse forms. Even though the occupied areas are now cleared but what caused the occupation has not been resolved. There may be more civil resistance actions coming. On banners put up at the last moment before the police clearance, the occupiers shouted, “It’s just the beginning!” “We’ll be back!”
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