Amnesty for Hong Kong extradition bill protesters would heal society and close rifts with mainland China

Hong Kong’s guidelines for prosecutors say there are conditions in which prosecution does not serve the public interest
Recent acts, in a highly charged atmosphere created by unresponsive government, should fall under those conditions

Phil C. W. ChanandPaul Serfaty

Published: 5:00am, 17 Jul 2019

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The continuing political crisis in Hong Kong has reached, in the words of Chief Executive Carrie Lam Cheng Yuet-ngor, an impasse.

The impasse stems principally from the government’s refusal to extend amnesty to arrested protesters whom Lam and the police have deemed rioters (subsequent non-retraction retractions notwithstanding), citing defence of the rule of law. While not acceding to any of the demands of protesters, Lam has pledged to “listen” to the people of Hong Kong more sincerely and engage with young people more proactively through “dialogues”.

The government is merely dissembling. Its “listening” and “dialogues” are pure window dressing rooted in Hong Kong’s political culture – Confucian authoritarianism, by which the old and rich are wise and the young and less well-off immature, uninformed or “spoiled” – and doomed to failure.

For a generally apolitical city where people are expected to make money above all else, Hong Kong is now at breaking point and social cohesion is bursting at the seams. There are underlying causes aplenty, but they can all be traced to a political system in which lawyers, bankers, businesspeople and property magnates have a disproportionate say in government policy. Non-professionals and young people, by contrast, are essentially disenfranchised. Economic factors such as unaffordable housing and the lack, for many, of social mobility are manifestations of an unequal political system in which universal suffrage is absent and pro-government functional constituencies hold sway.

Arresting and prosecuting young people for their protests will only further alienate them. It will do nothing to ameliorate the schisms between Hong Kong society and the Hong Kong and central governments. It is precisely because the acts alleged to have constituted riots were committed for a political purpose, in a highly charged political atmosphere, that the government must consider extending amnesty for them, ideally through legislation.

The government is right to assert the importance of the rule of law. However, amnesty and the rule of law are not mutually exclusive.

Amnesty has, time and again, been used in many countries, ranging from the United States (regarding illegal immigration) to South Africa (for acts arising from apartheid). Reconciliation and cohesion in society are always the core objectives of any amnesty measures. In line with long-standing practice under the common law, section 15(1) of the Criminal Procedure Ordinance states that the secretary for justice “shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference”. The Department of Justice’s Prosecution Code lists 14 non-exhaustive factors in assessing whether public interests warrant a decision not to prosecute.

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Throughout its handling of the extradition bill, the Hong Kong government – including the chief executive, Executive Council members and pro-government Legislative Council members – has displayed such levels of groupthink, indifference, arrogance, contempt and incompetence as that normally permeate totalitarian regimes. If the government wants a “second chance”, as it pleads, it must acknowledge its part in creating Hong Kong’s politically charged environment.

Amnesty is not about caving in to the demands of protesters, or undermining the rule of law in Hong Kong. It is about bringing reconciliation to a polarised society in which genuine political representation has not materialised.

The rule of law is a principle that forms good governance in aggregate. It is not a stand-alone principle (the Holocaust took place under the umbrella of the rule of law). The government should not abdicate its responsibilities to jurors and judges.

The “umbrella movement” in 2014 subsided, after 79 days, without success because protesters were occupying major thoroughfares on Hong Kong Island that put prolonged strains on how Hong Kong people lived their lives. This may be why the government is seeking to portray protesters’ demands as unreasonable and their actions as unlawful, in the hope that the rest of the people of Hong Kong will side with the government and police.

It is, therefore, extremely significant that protests are no longer confined to Hong Kong Island, but have spread across Hong Kong, including the New Territories, over deep-seated resentment caused by issues such as parallel traders from Shenzhen and mainland women singing and dancing in dense residential neighbourhoods.

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Their expansions, in geography and in scope, demonstrate that the furore over the extradition bill has since metamorphosed into a generalised movement uniting Hongkongers, of all ages and from all walks of life. The people are expressing their frustrations with an array of issues brought about by the government’s relentless initiatives aimed at Hong Kong’s full and complete integration with China – and also with their unelected, unrepresentative, unresponsive and unaccountable government.

Demonstrators, including pan-democrat lawmaker Raymond Chan, hold posters lampooning Hong Kong Chief Executive Carrie Lam and demanding the withdrawal of the extradition bill. Photo: Dickson Lee

As the political crisis drags on and metastasises, it will become more and more intractable for the government to resolve. Violent clashes between protesters and the police across Hong Kong have become such regular occurrences that hitherto mutually respectful relations between the police and the community will take years to rebuild.

It is undeniable that the government’s objection to amnesty is driven, at least in part, by Beijing’s resolve that protesters face criminal repercussions, lest the idea of protests driving political reform spread across the increasingly fragile border. However, in extending amnesty, the government will demonstrate that it really has “listened” to Hongkongers and is sincere about healing Hong Kong society. Doing so will halt further instability in Hong Kong and fissures between Hong Kong and China. It will, therefore, serve both Hong Kong’s and Beijing’s interests.

Unless Hong Kong takes active measures to mend the rift between society and government, the endgame for Hong Kong will befall the city far sooner than 2047.

China cannot succeed if Hong Kong fails.

Phil C.W. Chan is senior fellow at the Institute for Security and Development Policy in Stockholm and Chengdu, and holds law degrees from Hong Kong, England and Singapore. Paul Serfaty is director of Asian Capital Partners, barrister in England and permanent resident of Hong Kong

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