聯校法律學生政改關注組聲明──回應大律師公會10月8日之聲明

聯校法律學生政改關注組聲明

──回應大律師公會10月8日之聲明

1. 世界人權宣言的序文早已把法治與人權掛鈎，各成員國「有必要使人權受法治的保護」，使「人類不致迫不得已鋌而走險對暴政和壓迫進行反叛」。

2. 若把形式上的法治與實質正義混淆，甚至只提條文以圖掩蓋正義的重要性，是原則上完全錯誤。現今的文明社會中，法治不再僅僅是依法執行及遵守法律。大律師公會於6月11日回應白皮書的聲明的第4段亦強調這一點：

「尊重法治（根據香港及國際文明社會所理解的「法治」）遠遠超乎事事只求「依法辦事」或「依法施政」那麼簡單，它包括在權力行使上適當地自我制約，好使司法獨立的重要性得到適當的重視和彰顯。」

3. Lord Bingham(賓咸勳爵)亦解釋如此狹隘的理解是「削奪法治的價值、違反基本價值，因而違背了法治精神」、「法治必須用法律保障該社會認同的基本人權」。(「法治」 (2007) 66(1) 劍橋法律期刊l 67，第76-77段)這也是現今社會中對法治最權威的演繹。

4. 誠然，上世紀最著名法律學者之一Herbert Hart(赫伯特•哈特)指，法律並不只是外在加予的刑罰，還有其「內在」價值。當法律的內在價值被肯定，其正當性亦從而確立。公民抗命，如果我們正確理解的話，正正就是拒絕承認該法律的內在價值。法治精神，就是要求人民不應不論法律的道德基礎而絕對服從法律條文。按此理解，人們對法律的認同必然是有條件的。就正如Ronald Dworkin(朗諾．德沃金教授)在《關於不檢控公民抗命案件》一文（紐約書評，1968年6月6日）闡述：

「當議題觸及基本個人或政治權利，而最高法院的審決亦備受爭議時，人們基於他們的社會權利，應可拒絕接受該決定為最終裁決。」

5. 從法理學來看，公民抗命並沒有損害法治精神，反而使其得以確立，蓋因公民抗命自身就是對法治精神的追求。公民抗命，就是以司法秩序的根本原則之名，拒絕承認不義法律，從而表達對法律的忠誠。儘管公民抗命可能要為負上刑責，但他們為了挑戰違反人權的不義法律時，他們並不逃避這些公義社會下正常的法律責任；他們只是透過徹底的對抗，譴責及推翻該條他們認為必然是錯誤及不正當的法例。

6. 儘管這以真誠撼動人心的抗爭會帶來極大的犧牲，但道德上，公民抗命的勝利就是法治的勝利。公民抗命帶來的並非失序，而是長遠的穩定，達致「阻止及糾正偏離正義的事件」之效。（John Rawls(約翰•羅爾斯)，正義論，（修定本，1999，哈佛大學出版社，383頁。）

7. 正如大律師公會所言，公民抗命無疑是透過違反法律去喚醒社會對公義之追求。若非政府多年來對大眾民主的訴求充耳不聞，人們也不會走上公民抗命之途。我們深信公民抗命者都懷著崇高理想，亦不見得有任何人認為法庭會就此免除他們的罪責。反而，大律師公會突然質疑與譴責公民抗命者圖以法律辯護逃避刑責，令我們大惑不解。

8. 我們不理解何以大律師公會如此緊張、關注並嚴正斥責「有人」形容討論憲制框架是「花招」。在政制層面，法律理應反映人民對政治體制的期望，而非反過來限制人民的自由，政治問題政治解決。而且我們必須指出，人大落閘之時，他們已經背棄了法律、同樣適用於香港的國際人權公約，甚或人大過往關於香港政改問題的解釋（詳情請看我們之前就人大決定的聯署聲明）。在權力極度不對等的角力中，我們不明白大律師公會為何會在談判前夕一刻，以如此嚴厲語氣呵責學生的一句「花招」。

9. 學生多年來以全無或極少干擾民生的手法表達對民主的渴望，得不到政府回應，才逼不得已重奪廣場、佔領街道。香港專上學生聯會亦向受影響的市民道歉，希望盡量避免影響民生。同時，我們深信學生無意貶損法治、憲政等。不民主的政制、拒絕給予人民基本人權的政府，才是對生活、法治、憲政最根本、最大的威脅，望市民大眾明察。

港大、中大、城大法律學生政改關注組

2014年10月13日

Statement by the Law Students Political Reform Concern Groups in Response to Statement of the Hong Kong Bar Association on the Rule of Law and Civil Disobedience dated 8 October 2014

1. As the Preamble of the Universal Declaration of Human Rights familiarly proclaims, "it is essential ... that human rights should be protected by the rule of law", "if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression".

2. Thus it is fundamentally wrong, in principle, to confuse the formal precepts of the rule of law with its inherent imperatives of substantive justice, still less to subsume the significance of the latter under the former’s guise. The confinement of the rule of law merely to the due enactment and scrupulous observance of detailed laws can no longer hold sway today in a civilised society. The Bar's statement issued on 11 June 2014, responding to the White Paper on the Practice of "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region, stressed as much at §4

“RESPECT FOR THE RULE OF LAW (AS UNDERSTOOD IN HONG KONG AND THE COMMUNITY OF CIVILIZED NATIONS) MEANS FAR FAR MORE THAN MERELY “DOING THINGS ACCORDING TO LAW” (依法辦事) OR “GOVERNING ACCORDING TO LAW” (“依法施政”).” (emphasis in original)

3. That too Lord Bingham of Cornhill has eloquently recognised in his authoritative modern account of the rule of law: to take such a restrictive view would, in the former Senior Law Lord’s words, “be to strip the [rule of law] of much of its virtue and infringe the fundamental compact which ... underpins the rule of law” – “[t]he rule of law must, surely, require legal protection of such human rights as, within [a particular] society, are seen as fundamental.'” ('The Rule of Law' (2007) 66(1) Cambridge Law Journal 67 at 76-77)

4. Indeed, law cannot – according to Herbert Hart, one of the greatest legal theorists of the last century – only include that which is externally imposed by the threat of sanctions, but must also encompass an “internal”, distinctively value-laden perspective, stemming from the citizens’ acceptance of the substance, and therefore validity, of the rules in question. It is that very normative acceptance that civil disobedience, properly understood, justifiably forswears. The rule of law as a concept should not therefore be taken to demand unquestioning obedience to posited law regardless of its moral nature or ramifications. So understood, the citizen's obedience to the law is necessarily always a qualified one. As Professor Ronald Dworkin, in 'On Not Prosecuting Civil Disobedience' (New York Review of Books, 6 June 1968) puts it

“if the issue is one touching fundamental personal or political rights, and it is arguable that the Supreme Court has made a mistake, a man is within his social rights in refusing to accept that decision as conclusive.”

5. It follows that in this jurisprudential terrain, the rule of law is not so much compromised as it is confirmed by civil disobedience, which may itself plausibly be considered an appeal to the rule of law. In the name of the most fundamental principles founding the legal order, civil disobedience reifies fidelity to law by the very rejection of unjust laws properly as laws. Even though conceding the consequences of her actions, she who confronts legal obligations dictated by an unjust law, on account of its rejection of basic human rights, does not resist legal obligations acceptable in a just society in which the rule of law prevails; she by her confrontation condemns and repudiates the existence of the legal rule as necessarily mistaken and illegitimate, in the most fundamental a way.

6. As such, the triumph of civil disobedience, in this normative sense, has also to be a triumph for the rule of law – a superficially painful one perhaps but a genuine and substantive one nevertheless. Civil disobedience opens the door not to anarchy, but to ultimate stability, serving as it does “to inhibit departures from justice and to correct them when they occur" (John Rawls, A Theory of Justice (Rev Edn, 1999 Havard University Press ) at p 383).

7. We have been profoundly impressed by the noble intentions harboured and as portrayed by the students and citizens who have engaged in various forms of civil disobedience in the past few weeks, but we are ignorant of any claim that they should for this reason alone be automatically absolved of liability for their participation in civil disobedience. We record our bemusement about the Bar’s decorous yet apparently unsolicited assaults upon suggestions of such kinds.

8. We note that the Bar also expressed its alarm, in stern terms, at "the suggestion from some quarters ... that any discussion of constitutional or legal principles is a form of ‘trickery’ or insistence of ‘trivial technicalities’”. For our part, it is not obvious why one should have gone to these lengths to rebuke the students, particularly in view of the imminent negotiations (subsequently “terminated” by the Government) between the students and the Government and, more importantly, of the vast disparity of power between the two. Rather than presupposing legal limits to the legitimate expectations of the people, any question relating to political reform must be firmly grounded within the vision of the people, in the exercise of their constituent power, about the constitutional order which embodies that vision, not as a matter of grace but as a matter of basic human rights. It would be remiss, furthermore, to lose sight of the fact that any professed fidelity to the law has deserted the Central Government since the issuance of the NPCSC Decision dated 31 August 2014, reneging upon the guarantees and promises in the Basic Law, international human rights instruments which apply to Hong Kong and, indeed, the NPCSC’s own previous Interpretation. (See further our Submission in Response to the NPCSC's Decision of 31 August 2014.)

9. From peaceful and non-disruptive means to more vigorous yet equally peaceful acts of civil disobedience, the students have, as best they could, exhausted all the means available to them to reiterate the earnest desire of the people of Hong Kong for democracy. The Government has, however, refused to listen, not showing even the slightest hint of genuine openness to conversation. On the other hand, the Hong Kong Federation of Students has repeatedly apologised to all those affected and pledged itself to less disrupting means to fight for democracy. We underline our firm belief that the students’ intention has never been to risk watering down the rule of law or other constitutional principles; nor has it been to affect the livelihood of anyone. Unabashed by the obstinate hostility shown by the Government, we adhere to the view that the real threat to the rule of law comes not from the students, but from undemocratic laws which abridge the fundamental political rights of the people. This is a message which, we thought, should not have required reaffirmation but, if and insofar as it does, we hope that it will be clear and go out undiluted from this Statement.

The HKU, CUHK, CITYU Law Students Political Concern Groups

13th October 2014

CUHK Law Students Political Reform Concern Group 中大法律學生政改關注組

CityU Law Students Political and Constitutional Reform Concern Group

港大法律學生政改關注組 HKU Law Students Political Reform Concern Group