tim's experiment

Not funny as in humourous, funny as in weird. Reading some of the things written about the injunctions to clear occupied spots and the failure of protesters to comply, one is transported to a strange world. I realise that to lawyers as a matter of professional faith and indeed professional self-preservation the orders of judges are something to be taken extremely seriously. On the other hand to see failure to comply with an order from a civil court as marking the end of rule of law seems somewhat lacking in common sense. People disobey the law all the time. Our CE has illegal structures, our business potentates double park in Central, our Department of Justice fails to enforce laws which might affect its friends in the media business, and so on. The stress on the injunctions also seems to rely on a certain amnesia.

People have been saying for months that Occupy Central would be illegal if it happened. Indeed the more lurid left-wing writers maintained that even arguing – never mind demonstrating – for public nomination was illegal because there was no such thing in the Basic Law. When the occupation started there were further complaints that it was illegal, and if there was any remaining doubt the occupiers were sprayed with noxious chemicals by the police violence, I beg your pardon force. So the occupation has always been illegal. Illegality is an on-off sort of thing. An action is either legal or it is not. If it is illegal then a ruling by a judge cannot make it more illegal. Or so, I am sure, the protester in the street believes.

Actually there is already a lingering whiff of injustice about this injunction business. The first injunctions were supplied without any attempt to hear arguments from those who were present and eager to oppose them. When they were renewed there was again “no time” to hear the other side. Is there an argument for the other side? It seems to me that there certainly is.

Consider: the public roads are built, owned and managed by the Hong Kong SAR Government. From time to time some of these roads are closed for a variety of purposes: road works, fairs, firework displays, New Year’s Eve, processions, to add security to international conferences and so on. Now if you are a bus company which is inconvenienced by road works you do not seek an injunction against the company that is digging the hole. You seek an injunction against the government. Of course the government did not organise the Occupy Central movement. But it has sufficient physical force to remove the protesters if it really wants to. The fact that they are still in occupation is the result of a political decision: that the political costs of a display of state violence sufficient to empty the streets would be unacceptable. Whether you agree with that decision or not it is clearly a decision which can and should be made by the government, and not by a bus company or a judge. Whether it clears the demonstrators or not the government remains the authority in charge of roads and complaints of inconvenience should be laid on its doorstep. This is a political matter, not a legal one, and a legalistic approach is likely to be politically unhelpful.

The rule of law is important. But it requires that the law should know its limits. There are some matters which are not amenable to purely legal solutions. Judges traipse in political minefields at their peril – and ours.