People’s right to protest should be protected by the law especially when the authorities are turning a deaf ear to their calls, defence lawyers on Thursday told the trial of nine leaders accused of inciting Hong Kong’s Occupy civil disobedience movement in 2014.
In their closing remarks, the lawyers cited rulings from courts around the world endorsing such a right, in their bid to convince the Hong Kong court that the activists they represented should not be held criminally liable for their fight for democracy.
The nine – including the three Occupy founders, Benny Tai Yiu-ting, Dr Chan Kin-man and Reverend Chu Yiu-ming – have been on trial since last month at West Kowloon Court for their roles in the Occupy protests that brought the heart of the city to a standstill four years ago.
They and many others who joined the 79-day protests that began on September 28, 2014, were upset about Beijing’s restrictive proposal for the city’s leadership election, despite their continued pleas to both the local and central government for more democratic elements.
On Thursday, barrister Philip Dykes SC, for Eason Chung Yiu-wa, one of the Occupy leaders, reminded the court how the law should stand on their side, with the trial, based largely on the reasonableness of the protesters’ action, drawing towards its end.
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While prosecutors argued that blocking major thoroughfares in Admiralty amounted to public nuisance, defence lawyers contested those claims, saying those involved were protesting proportionally according to their rights as safeguarded by the law.
“If unresponsive authority is to be challenged and persuaded to act differently, then the exercise of the rights protected by [the law] in public places has always been the most effective way of getting a message across,” Dykes said.
The human rights specialist argued that the protesters’ rights were safeguarded by Hong Kong’s mini-constitution, the Basic Law, and its Bill of Rights.
Dykes also stressed that Article 48 of the Basic Law stated that one of the chief executive’s duties was to handle petitions and complaints.
Similar backing for citizens’ right to protest had appeared in judgments in the courts of Israel, Britain and America, he said.
“Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens,” he read from an American case.
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In Hong Kong at the time, protesters were upset about not having a say on whom they would like to be governed by due to Beijing’s decision, the barrister said.
“This is why if you are not given the meaningful right to vote it’s worth going to the street … as an effective means of showing discontent,” he said.
Edwin Choy Wai-bond SC, for former lawmaker Lee Wing-tat, turned to cases in South Africa and Turkey, where he found similar endorsements.
While the South African Constitutional Court called the right to assembly “the heart of democracy”, the European Court of Human Rights, once ruling in a Turkish case, said “an unlawful situation does not justify an infringement of freedom of assembly”, he cited.
Lee, a former Democratic Party lawmaker, has denied one count of incitement to commit public nuisance.
Tai, Chan and Chu have denied three joint counts against them: one of conspiracy to cause public nuisance; one of inciting others to cause public nuisance; and one of inciting people to incite others to cause public nuisance.
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Five other defendants, legislators Tanya Chan and Shiu Ka-chun, former student leader Tommy Cheung Sau-yin, Chung and Raphael Wong Ho-ming, vice-chairman of the League of Social Democrats, have all denied two incitement charges.
The case continues before Judge Johnny Chan Jong-herng on Friday.