The true purpose of setting up a “Truth and Reconciliation Commission”

Alan Ka-lun LUNG

Governor and Co-convenor (International) of Path of Democracy

Path of Democracy is not the only organisation that proposes to follow the South African example of setting up a “Truth and Reconciliation Commission” in Hong Kong. Radio Television Hong Kong (RTHK) and other freelance writers have made similar proposals. Andrew Li, former Chief Justice also talked about amnesty in a newspaper article (SCMP, 9 July 2019). He said an amnesty at this stage would be inappropriate and inconsistent with the rule of law.  This opinion could be related to Article 48(12) of the Basic Law which says the Chief Executive has power to “Pardon persons convicted of criminal offences or commute their penalties” and the procedural justice issue associated pardoning an offence before trial and conviction.

The true meaning of setting up a “Truth and Reconciliation Commission” is about reconciliation and allowing us to move forward amidst a deep political crisis. The proposal mentions the “Norgaard Principles” named after Carl Norgaard, a Danish national. This principle considers the proportionality between the offence and the political objective and “Substantial Justice” versus “Procedural Justice” when judging an offence. In 1995, the newly installed South African Government pardoned high profile and serious criminal offences committed by white South Africans against black South African to demonstrate sincerity of the government’s reconciliation effort. Applying the substantial justice concept in trials is more common in countries such as Germany and Mainland China. Whether this concept will be accepted by the Common Law trained legal community in Hong Kong is still unknown. There are other issues, such as whether the Government and people of Hong Kong would agree that reconciliation (versus retribution) would be a more effective way to solve the current crisis.  There is also the issue of whether the Government and opposite sides of the Legislative Council could come to a consensus in proposing and passing a “Truth and Reconciliation Bill”.  How and whether a constructive debate in Hong Kong would be led is probably most difficult part of the implementation.

The proposal made by Path of Democracy mentions the specific policy measures needed in the short to medium term, including:

  • Reintroduce the Central Policy Unit;
  • Redeploying surveys to monitor public opinions effectively;
  • Revamping the function and makeup of the Executive Council;
  • Reattempt to introduce political reforms and trying to convince the public to accept incremental democratic changes;
  • Modernise the government consultation structure.

Since 1997, the HKSAR Government has needed to master the response to political aspirations from: Hong Kong, International and Beijing. Understanding and responding to various sectors of the community, particularly the aspiration of the young people is the priority. In an article that analysed how the United States had won over the Soviet Union, Qiáng Shìgōng (强世功),  political theorist and author of  Beijing’s “One Country, Two Systems White Paper” concluded that it was because the Soviet Union did not have “Rule of Law” and “International Finance Centre” as its national capacity. What the Soviet Union did not have are two of Hong Kong’s key strength. Therefore, knowing how to protect our own strengths and use Hong Kong’s soft power to serve China’s nation building aspiration are the second most important political skill needed by the HKSAR Government.

Ducks are the first to know if the frozen water is warm or not. Kids from a happy family do not run away from home. Hong Kong young people are not wrong. The Government should protect the rule of law, sovereignty of China and cannot be blamed for using strong arm tactics. The Government is not wrong. Even with the full knowledge that China would consider it a provocation, arranging a former political clown who has no role in leading the current political protests to be interviewed by Amanpour of CNN is not wrong. It seems the only hope to solve Hong Kong political crisis is for strong headed leaders at all levels and of all sides to calm down and use a little bit more empathy to listen to the opposite sides.