A commission of inquiry into police conduct can help Hong Kong’s healing process – an amnesty for protesters cannot

An open and wide-ranging inquiry, led by a judge, would be the most effective way to ascertain the truth, and the process will have a therapeutic effect on society
Carrie Lam, meanwhile, must encourage more debate in government and speak up for Hongkongers, while all officials should remember they are servants of the public

Andrew Li

Published: 3:30am, 9 Jul, 2019

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Like my fellow citizens, I am greatly concerned by recent events arising from the controversy over the fugitive offenders bill. As a former chief justice, I have no wish to participate in the political arena. But, having regard to the present extraordinary situation, I wish to contribute to the discussion, especially as certain issues have a legal dimension.

Overall, there is no doubt that the government made a serious error of political judgment. They misjudged the mistrust which the people of Hong Kong have of the mainland legal system and their concern of what they perceive to be the increasing “mainlandisation” of Hong Kong.

The commitment of Hong Kong people shown by their peaceful and orderly marches was impressive. The central government also showed wise pragmatism in supporting the abandonment of the bill, even though it had majority support in the Legislative Council.

Unlawful and violent behaviour must be strongly condemned by all. The scenes in the storming of Legco were ugly and shocking. Under the rule of law, this cannot be tolerated. The law was wilfully disobeyed. Those responsible must be brought to justice. If convicted after a fair trial, the courts should consider deterrent sentences.

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Chief Executive Carrie Lam Cheng Yuet-ngor has already sincerely apologised for the government’s handling of the matter. She should be given the chance to continue to serve. I respect her for her unwavering dedication to public service.

As the chief executive strives to improve governance, I wish to respectfully make a few points. First, as a leader, before making important decisions, she should encourage more extensive debate within government. This will enable all options and angles to be explored and all considerations to be carefully weighed. This will lead to the making of better decisions.

Secondly, under the Basic Law, the chief executive is accountable to the central government and to the Hong Kong Special Administrative Region. The perception of Hong Kong people is that she has paid undue emphasis to the former. She must speak up more for them and should be seen to be doing so.

Thirdly, all holders of public office, whether serving in the executive, legislative or judicial branch of government, must always remember that they are not exercising parental authority over citizens. They are servants of the people and should serve with humility. They are subject to scrutiny in the court of public opinion.

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There are continuing calls for the government to withdraw the bill, to establish a commission of inquiry and to grant an amnesty. The government has suspended the bill. It has stated that it will not be presented again before the expiry of the term of the current Legco in September 2020 when it will lapse.

But there are widespread calls for its immediate withdrawal. There is no practical difference between the two positions. That being so, and as it would assist in the process of reconciliation, the government should now withdraw the bill.

In spite of widespread calls, the government has refused to appoint a statutory independent commission of inquiry. It has stated that complaints against the police should be investigated by the Independent Police Complaints Council (IPCC).

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A commission of inquiry into recent events, led by a judge, is a much more effective mechanism for ascertaining the truth. It is deemed to be a judicial proceeding. Its hearings are open and the public and media can attend. It can summon witnesses. Evidence is given under oath and covered by absolute privilege.

It is tested by cross-examination and cannot be used in subsequent proceedings against the witness. Relevant parties are entitled to legal representation. The commission of inquiry mechanism has been invoked satisfactorily by the government before and after 1997 on many occasions.

The IPCC is a respected body. But, with the best will in the world, it cannot be as effective as a commission of inquiry for arriving at the truth. It has none of the powers, protections and features of such a commission. Further, apart from dealing with individual complaints, it is limited to identifying any default or deficiency in police practice or procedure.

Chairman of the Independent Police Complaints Council Anthony Neoh (centre) inspects the police passing-out parade at Hong Kong Police College in Wong Chuk Hang in February. Photo: Dickson Lee

A commission of inquiry would take a considerable time to report, at least, say, nine months. This would enable a calmer atmosphere to prevail. Further, allegations and grievances will be aired and explored in open public hearings. This would have a therapeutic effect for society and would assist in the process of reconciliation.

The government is concerned about police morale. I have high respect for our police force. While there may be an impact in the short term, scrutiny by a commission of inquiry can enhance its reputation in the longer term. A commission of inquiry would be totally impartial and fair. It may exonerate the police. Even if there is criticism, the police can take action to avoid future recurrence.

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The force can then turn the page and move on. It will enable it to serve even better “with pride and care”, in accordance with its motto. In the absence of scrutiny by a commission of inquiry, there is a serious danger that grievances against the police would continue to fester.

An amnesty for protesters has been suggested. Presumably, on the principle of equality, this would also extend to police officers. An amnesty at this stage would involve a direction by the chief executive to the police not to investigate further. This would be inappropriate. It would be inconsistent with the rule of law.

It is a fundamental principle that everyone is subject to law. The law must be obeyed by everyone without exception. Compliance cannot be a matter of individual choice. A partial amnesty enacted by statute was granted in 1977 for pre-1977 corruption offences. The circumstances were entirely different.

In conclusion, as has been well said, time is the commander of all things. Reconciliation will take time, probably a long time. The government deserves to be supported in this process by the community.

The Hon Andrew Li Kwok-nang was the first chief justice of the Hong Kong Special Administrative Region from 1997-2010

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