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Surya Deva

Surya Deva says civil disobedience has a rightful place in the democratic playbook, and Hong Kong’s Occupy Central movement can learn a thing or two from Snowden’s approach

Since Edward Snowden first broke cover in Hong Kong, many people have been puzzled about his choice of this city to take on the US government. Despite being wedded to the rule of law and having independent courts, Hong Kong is not a “safe haven” against extradition to the US by any means. Nor is the Hong Kong government known for treating asylum claims or refugees very humanely.

Snowden’s initial explanation that he chose Hong Kong because of its “strong tradition of free speech” also could not be the tipping point; there are many other jurisdictions with similar or even higher levels of protection of free speech.

So why Hong Kong? Was it to embarrass the US about its own human rights record? After all, human rights defenders – like the blind activist Chen Guangcheng – have looked to the US for protection from repressive and authoritarian regimes.

Snowden’s recent interview with the Post brings more clarity on his rationale for choosing Hong Kong. He said: “I am not here to hide from justice; I am here to reveal criminality.”

What Snowden is seeking to do resonates clearly with civil disobedience, and Hong Kong is not a bad place to practise this. The idea of civil disobedience has been popularised here of late by the Occupy Central proposal. Nevertheless, the debate in the media about its propriety has generally shown a lack of a clear understanding of this concept.

Over the years, many renowned thinkers and political activists – from Henry Thoreau to Mahatma Gandhi, Martin Luther King, John Rawls and Ronald Dworkin – have articulated the contours of civil disobedience or practised them. Although their ideas vary, in my view the following six key conditions should determine whether civil disobedience is a justified device in a democracy:

• It must challenge an unjust action (a law, decision or policy) of the government. The action may be regarded as “unjust” with reference to a higher authority, such as one’s conscience, or furthering justice, human rights or any other core constitutional value.
• The unjust action should be a matter of wider public interest, rather than affecting the interests of only a selected few. This condition will, in turn, imply a certain degree of public support.
• Civil disobedience should be pursued with the objective of pressuring the government to change the unjust action.
• Civil disobedience aimed at challenging an unjust action should be announced openly and publicly with advance notice.
• It is vital that civil disobedience is peaceful and the people taking part are willing to bear all legal consequences of breaking what is perceived to be an unjust action.
• Finally, civil disobedience should generally be employed as a last resort.

When considered within these boundaries, civil disobedience can strengthen the rule of law and constitutionalism, rather than being a threat to them. In fact, it is arguable that people in a democracy not only have a right but also a duty to resist unjust, albeit legal, measures taken by the government in certain circumstances.

I believe Snowden’s action and rationale fall within the above contours of civil disobedience. It appears that the National Security Agency has been exercising sweeping surveillance powers without many checks and balances. This, in turn, has unreasonably curtailed several human rights.

In view of the extraterritorial reach of the surveillance measures, the matter is of global public interest. Snowden’s disclosures are apparently driven by a desire to change the status quo rather than securing monetary benefits or cheap publicity. There can hardly be any doubt about the peaceful nature of his actions.

By declaring his identity and whereabouts, Snowden is willing to face the consequences of breaching US laws if a fair trial can be guaranteed. Nevertheless, it is legitimate for him to seek asylum under international law and/or contest before the local courts his extradition to the US to avoid persecution for political reasons.

It is true that Snowden did not give advance public notice of his disclosures. But is it reasonable to expect advance notice in such special circumstances? Perhaps not.

Could Snowden have tried something else first? It is unlikely he could have succeeded in exposing (and potentially changing) the surveillance system while remaining in the US or by complaining to higher authorities. The US courts have not proved to be a robust guardian of human rights amid the “war on terror”.

What could the Occupy Central organisers learn from Snowden? First, they need to identify more clearly the unjust action the proposed civil disobedience seeks to assail. They should also engage the public in diverse settings and without setting artificial limits on their participation.

On this front, too, Snowden played a master stroke by expressing his intention to rely not merely on the courts, but also on “people of Hong Kong to decide [his] fate”. Snowden is trying to secure what is necessary for successful civil disobedience: mass support for a public cause.

Moreover, the Occupy Central organisers should articulate exactly what it wants to achieve, how people would benefit and why the fears expressed by the pro-establishment camp are groundless. Apart from ensuring the peaceful nature of the movement, the organisers have to explain which other means they considered to achieve genuine universal suffrage before embarking on the Occupy Central path.

The civil disobedience discourse also has advice for governments. Dworkin, for example, argues that the government should show tolerance and act with caution. If there are prosecutions, Rawls contends that courts should take into account “the civilly disobedient nature” of the protest and reduce or suspend legal sanctions.

Chief Executive Leung Chun-ying has said Occupy Central is likely to be unlawful and non-peaceful. In other words, the government will not tolerate it.

It is time to recognise that civil disobedience, within well-defined boundaries, can play a constructive role in controlling power and furthering constitutional objectives. In fact, if used properly, it can achieve what judicial reviews and periodic elections may not accomplish.

How the Hong Kong government and its courts deal with any US extradition request for Snowden, and how they treat people participating in Occupy Central, will define not only the future of Hong Kong’s autonomy, but also its status as the bastion of freedoms and the rule of law within China.

Surya Deva is an associate professor of the school of law, City University of Hong Kong

More:

The only thing I have written about Manning.

Here is the best-known signature campaign to pardon Snowden. 85,000 signatures already. 15,000 more by July 9 and Obama will have to make some kind of formal response. I am not signing at this point because I think it ought to be 100,000 Americans who sign (Be helpful and post a comment if you know whether non-Americans can sign).

The manning signature campaign has been less well organised, less well-worded. Here it is.

Pilling frames the moral debate in the FT (sub needed).