The Ultimate Test of Fidelity: Judicial Responses to Civil Disobedience in Hong Kong and Taiwan

Abstract

Within less than a year in 2014, two large-scale social protests involving extraordinary acts of civil disobedience broke out consecutively in Taiwan and Hong Kong. The temporal proximity of Taiwan’s Sunflower Movement and Hong Kong’s Occupy Central is no coincidence, as both are aggravated social responses to the perceived threats from China. As both protests involved violations of law, it is inevitable that both invited legal responses in their wake. In this book chapter, we ask the following questions: How do we critically evaluate these legal and judicial responses? How do we conceive of rule of law in the particular contexts of Taiwan and Hong Kong’s democratic development? What do the disparity in the legal responses in the two jurisdictions reveal about the differences in the ideas of rule of law and democracy in the eyes of the courts and the protestors? We draw on Philippe Nonet and Philip Selznick’s models of law and society [Law and Society in Transition], in particular their theories on repressive, autonomous and responsive law to characterize court responses in relation to the political power and the society. In repressive law, rules of law are subordinated to power politics, serving interests of the state; in autonomous law, law is independent of the state, acting as a restraint on political power, characterised by procedural justice; whereas in responsive law, law seeks not only to adjudicate but regulate society by responding to social needs and aspirations. What is reflected in the judgments is the judicial understanding of court autonomy and independence within the larger political and social context. When Hong Kong judges were adamant to be apolitical in the autonomous law model, we found deeply established conventions being only selectively applied against the protestors. There can be discerned a repressive instrumentalism behind their seemingly neutral stance. Across the Strait, the Taiwan courts wavered from adopting a responsive law model to a restrained autonomous law model in the application and interpretation of law. Contrary to the assumption that responsive law accords well with democratic states, adopting the autonomous law model may prove to be a more prudent move for a polarized Taiwan in the long run. Based on our analysis of Taiwan, we pose a challenge to Nonet and Selznick’s claim that responsive law is ideal for democratic societies. At least in the context of disobedience in a polarized democracy, autonomous law may be an equally viable option for the court.

Keywords: civil disobedience, Sunflower movement, Umbrella movement, Taiwan, Hong Kong, rule of law, democracy