Democracy and Rule of Law in China's Shadow

Brian Christopher Jones

• Publisher: Hart Publishing
• Year: 2021
• Print ISBN:
  9781509949175
• Edition: 1
• eBook ISBN:
  9781509933976
• Topic: Law
• Subtopic: International Law
• Index: Law

This book provides detailed insight into some of the most contentious events occurring in jurisdictions operating within China's vast shadow.

Epic clashes between law and politics have become a regular fixture throughout the world, and no region has seen more of these than Asia. In some cases these conflicts have involved newfound democratic aspirations or democratic deepening, while in others it has arisen because of pushback against authoritarian or semi-authoritarian governments. Indeed, many of these clashes centre on or involve the region's most powerful and controversial player: China. This book focuses on several of these critical struggles, examining how democracy and the rule of law play out in a number of jurisdictions highly influenced by China's presence.

Chapters provide insightful analysis on issues such as: major threats to the rule of law and attempts to uphold the principle, oath-taking controversies, foreign judges and the disparagement of the judiciary, unconstitutional and undemocratic provisions, changing ideas of representation, a right to democracy in international law, same-sex marriage rights, and the legal responses to civil disobedience in Taiwan and Hong Kong, among other topics.

Ultimately, the book delivers a contemporary understanding of how democracy and the rule of law both complement and converge in this fascinating region.

Part I

Disobedience, Democracy and Law

1

Protest, Law and Regime Type

FU HUALING* AND MICHAEL JACKSON⁺

INTRODUCTION

Although political uproar in Hong Kong has been evident in recent months, 2013 and 2014 witnessed one of the most volatile moments in the recent history of the Greater China region. Large, lengthy and well-organised political protests swept mainland China, Hong Kong and Taiwan. The protests were unprecedented; each challenged the core of the respective political system. All have had significant impact on the political development in the respective societies. In 2013, Xu Zhiyong led his New Citizens Movement (NCM) into street action in different cities in China. In a spirit of freedom, public interest and love, NCM protesters, organised around dinner tables and coordinated via social media, demonstrated on the streets in small groups with home-made banners and cards to demand equal opportunities in education, freedom of the press and disclosure of assets of Party and state leaders.¹

While Xu was organising NCM activities, Benny Tai and his co-organisers in Hong Kong were designing one of the largest occupy movements that the world has seen, which he later referred to as: Occupying Central with Love and Peace. The three Occupy Central leaders announced their civil disobedience manifesto on 27 March 2013, while NCM protesters were rallying in different parts of China. Encouraged by the success of mass protests since 2003, Tai and his supporters were determined to use civil disobedience – through an indefinite and potentially unlawful occupation of Hong Kong’s busiest business districts – if the central government refused to offer a pathway to “genuine democracy” in the 2017 election of Hong Kong’s Chief Executive (CE). The Decision of the Standing Committee of the National People’s Congress (NPC) on 31 August singularly failed the test and, faithful to his promises and prompted by student activists taking to the streets of Hong Kong, Tai activated the Occupy Central Movement (OCM) on 28 September 2014. The protesters who flooded out in response occupied streets near the business district for the next 79 days.²

Six months earlier, another social movement similarly shocked Taiwan’s political landscape. Protests arose against the alleged abuse of executive and legislative power and the corresponding lack of legislative oversight in attempting to pass a Cross-Strait Service Trade Agreement (CSSTA), as part of a series of economic cooperation agreements with Mainland China.³ The Sunflower Movement, as it came to be known, lasted for 23 days, during which students and young activists initially occupied Taiwan’s Parliament between 18 March and 10 April. Some members also attempted to occupy the Executive Office on 23 and 24 March.⁴ Fearing economic dominance by the Mainland through trade and investment and potential political submission, the Sunflower Movement demanded democratic vigilance against any possible encroachment. Interestingly, Hong Kong served as a reference point for the Sunflower Movement in assessing the Mainland’s potential impact, sending a powerful statement that Taiwan did not wish to become the next Hong Kong.

In many aspects, all three movements shared a common objective in questioning and challenging the Mainland’s authoritarian political system and adopted similar strategies of using social protest to pursue legal and policy changes in their respective societies. Each movement, in its own way, reflected a primal fear unique to each society and targeted foundational political concerns: on the Mainland, the lack of political freedom and the deepening political corruption, allied with a determination to catalyse incremental reform through emancipation and street action; in Hong Kong, the slipping away of economic prosperity, the rule of law and Hong Kong’s high degree of autonomy, along with a resolve to maintain and entrench its way of life through implementing genuine democracy; and in Taiwan, the young democracy facing a looming existential threat from the Mainland, coalescing around a collective effort to maintain Taiwan’s democratic vibrancy and resilience.

In all three cases, a populist movement evolved because political institutions were seen to have failed to address these foundational political concerns and to meet public demand for reform or revitalisation. Additionally, in response to a pending crisis which, as the protesters perceived it, threatened to shake the foundations of the political community, each movement bypassed established political institutions and took the development and implementation of their respective constitutions into their own hands. For the protesters, this was an occasion when significant swathes of the public came together in an assertion of their sovereign powers, bound together by their entitlement as citizens to take charge at that historical moment of their political future. Protest, seen from this perspective, was a direct exercise of the people’s sovereignty and evidence of popular or civic constitutionalism.

For their roles in organising civil disobedience campaigns, protest leaders in all three jurisdictions were subsequently prosecuted for various offences. Yet the prosecution outcomes contrasted sharply between the three jurisdictions, reflecting the differences in regime type: on the Mainland, protesters were harshly suppressed through national security laws or the criminal law; in Taiwan, many were found not guilty and protesters in general were celebrated as the guardians of the constitution and democracy; while in Hong Kong they were found guilty for their ‘‘unlawful’’ activities, but were sentenced with varying degrees of leniency. The focus of this chapter is on the different conceptualisation of protest under the different political systems and its impact in shaping protest laws and their implementation in the three jurisdictions. Our principal argument is that regime type is determinative of the laws and regulations surrounding protest and its subsequent punishment, the pre-protest regulations, the political meaning and significance of public protests manifested in assemblies, processions and demonstrations (referred to generically as protest in this article); and the subsequent punishment imposed on individuals. Different regimes assign drastically different political meanings and significance to public protest; empower or limit courts in offering different degrees of protection of the right to protest; and encourage or prohibit civil society organisations in their function of nurturing a society with the freedom to protest.

Regime, Law and the Perception of Protest

Different types of regime face distinct political challenges and develop their own unique measures to manage political crises.⁵ Mainland China, Hong Kong and Taiwan, although linked by geography, history and similarly constituted populations, have markedly different political systems, which have important implications for protest: China is a Party state that practises socialism with the leadership of the Communist Party at its core.⁶ Taiwan is a young democracy which entrenches human rights protection and the separation of powers, but has struggled to achieve a constitutional foundation grounded in the rule of law, distinguished by such features as judicial independence and credibility.⁷ Hong Kong has a hybrid constitutional system – quasi authoritarian politically, but with an entrenched rule of law, judicial independence and constitutional protection of rights and freedom, although this has been placed under a severe stress test.⁸ In spite of a possible backsliding of the rule of law after the 2019 protests and the imposition of a National Security Law, Hong Kong could still maintain its stature as a free, tolerant and orderly society with strong aspirations for full democracy.

Authoritarian states generally regard protest as a political threat and prioritise its pre-emption and repression (if pre-emption fails). On the contrary, democracies commonly embrace protest as an integral part of the political process, with the state facilitating and supporting protest and citizens passionately participating. In between these views, a more legalistic approach to protest can be found, in which formal legal rules are rigidly applied and followed and where law and its institutions purport to maintain a high degree of autonomy independent of the political process. Below we articulate these in much more detail.

PROTEST AND AUTHORITARIANISM: CHINA

Protest abounds in China.⁹ While the Chinese authoritarian system recognises and, to a lesser degree, offers protection to individual rights, it strictly restricts their exercise through collective and organised action. What defines authoritarian law is not the deprivation of rights but their anti-solidarity nature. It is authoritarian because the legal system recognises the legal rights of individual citizens on the condition that the claim-making and rights-asserting process is neither organised nor does it appear in a collective form.¹⁰

Assemblies, processions and demonstrations are necessarily collective when they become the way to air grievances and articulate demands. On the authoritarian Mainland, public protest is pre-empted and restricted precisely because of its collective and organising manifestations. Indeed, the key external characteristic of assemblies and processions is that they involve a large enough number of people gathered to engage in collective action, although the threshold number triggering the law’s attention varies considerably throughout different jurisdictions. In Taiwan, an illegal assembly can be constituted by as few as three persons in a procession; and in Hong Kong, where public space is even more limited, the equivalent number is 30 persons (although previous incarnations had set the legal threshold at three, which remains the threshold for the more serious offence of unlawful assembly).¹¹ On the Mainland, there is no specification for the number of participants constituting an illegal a protest.

What is more dangerous for authoritarian leaders is the internal dimension of a protest. To qualify as a public protest, participants in the protest must have a common objective and the degree of consensus necessitates a process of organisation, coordination and deliberation. Historically, this has commonly depended on coordination by an active social sector and protest leaders to claim representation; although the advent of social media has made it possible to organise and coordinate public protests without any overarching NGO structure. On the Mainland, any such process of collective claim-making independent of the Party state is treated as a political threat to the Party’s monopoly on power, something that the Party is deeply concerned about and tries to pre-empt.¹²

In authoritarian regimes, protest is perceived as an indication of governance failure posing a clear danger to the regime’s stability; order and stability are often a core key performance indicator in assessing the performance legitimacy of a local state. Protest, as a symbol of disorder and instability, undermines the performance of a local state and the legitimacy of the Party as a whole. The state therefore individualises disputes to pre-empt public protest in the name of social harmony, social stability or national security. What increasingly defines China’s authoritarian system is not repression or violent crackdowns on protests, but pre-emptive action to disaggregate claims and prevent disputes from escalating into collective action.¹³ According to Zhou and Yan, the effective pre-emptive strategy in China depends on three institutions: embedded police that can ‘‘deeply penetrate grassroots society’’ and closely monitor communities; effective online surveillance of protest-related information; and an intricate network of informants to identify and inform potential protest.¹⁴ These all function together to send out a strong signal that public protest in any form or scale is politically offensive and therefore practically impermissible.

China’s political system precludes grounds to protest for precisely the same political concern. Protest in China is still at a pre-rights stage in the sense that dense politicisation has effectively prevented protests from adopting a rights-based discourse on the Mainland. While the right to protest exists in law, there is not an independent court to safeguard the specific right to protest. This contrasts sharply, as discussed below, with Hong Kong’s protest society and, for that matter, Taiwan’s, which are both largely sustained by judicial protection. Indeed, Taiwan’s...

Table of contents

• Cover
• Title Page
• Contents
• List of Contributors
• Introduction
• PART I: DISOBEDIENCE, DEMOCRACY AND LAW
• PART II: DEMOCRATIC STRUGGLES WITH LAW
• PART III: CLEARING THE SHADOW
• Index
• Copyright Page