A preliminary Discussion Paper released by HKU’s Centre for Comparative and Public Law argues that amnesty – in the form of pardons and/or immunity from prosecution – could address the ongoing civil conflict in Hong Kong.
Amnesty opens a path out of the political conflict that has divided Hong Kong society in the past few months. Amnesty is an immediate, short term solution that seeks to de-escalate and calm a volatile situation. Carefully negotiated and implemented, amnesty could provide the groundwork for rebuilding trust between government, police, protesters and Hong Kong society.
Amnesty is widely used in peace-building contexts in other parts of the world and has a long history in China and Hong Kong. Amnesty has been discussed by several commentators in Hong Kong in recent times. This Discussion Paper goes into the detail of how amnesty could be designed and implemented within Hong Kong’s legal framework.
A common objection to granting amnesty is that the rule of law requires consistent, impartial enforcement. However, certain widely-accepted legal options have effects similar to amnesty. Amnesty could be implemented within Hong Kong’s existing legal framework in the following ways: via a Department of Justice policy of refraining from prosecution; an executive order or directive from the Chief Executive to the Police; a pardon or commutation of sentence by the Chief Executive; expunging protestors’ criminal records; passing legislation for conditional release.
Another issue often raised in discussions of amnesty is who should be eligible for amnesty, what kinds of offences could be included or excluded from amnesty, and how an amnesty would work. The Discussion Paper draws on experiences from other parts of the world to suggest how these issues can be dealt with in the design and operation of an amnesty scheme. For example, amnesties could exclude certain serious offences or come with certain conditions. To be effective, amnesties need to be fair, extend to all groups (including protesters and police) and implemented efficiently.
Hong Kong does not need to look only to amnesty overseas. It can also look to the city’s own past: amnesty saved Hong Kong in the 1970s, when official corruption was rampant and the ICAC was in its infancy. Forty years later, it can once again play a crucial role in rebuilding trust and restoring peace.
By explaining what amnesty is, why it is used, how it fits within Hong Kong law and the kinds of issues to consider in its design, the Discussion Paper provides a basis for informed discussion in Hong Kong.
The English version of the Discussion Paper and a translation in Chinese are available at https://www.law.hku.hk/ccpl/publication/submissions-to-government/.