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A Truth and Reconciliation Commission May Help Hong Kong

Like everyone in Hong Kong, Path of Democracy (PoD) fervently hopes we, as a community in our collective wisdom, can find a workable resolution to overcome the current difficulties, which many consider to be the biggest crisis Hong Kong faces since 1967. As a think tank, PoD believes that any proposed resolution must be firmly based on the rule of law, with a clear purpose and broadly supported by the community. We sincerely hope to see an immediate cessation of violence, so as to enable the reconciliation process to commence. We also firmly believe for any proposal to work it must call for support from all sides including the Government and various stakeholders willing to cast aside preconceived positions to work towards one aim and one aim only: namely, to rebuild a foundation for a brighter and more equitable Hong Kong.

To this end, PoD proposes:

• In the near term, to borrow from the experiences of South Africa in setting up a Truth and Reconciliation Commission and France in launching a Grand Debate in the search for social reconciliation; and
• In the medium term, the HKSAR Government should propose major structural reforms to make the Government more representative and responsive to public sentiment.

A Truth and Reconciliation Commission (“TRC”):

• This may or may not take the form of amending the current statutory function of Commission of Inquiry (“CoI”).
• An important distinction is its purpose and scope. A TRC’s main function is not to allocate blame or propose retribution to perceived or actual wrongdoers but to rebuild community trust and forward-looking. It is inevitable that in so doing it must seek out details of the recent mass protests and causes of any conflict but only do so in order to propose a plan for reconciliation.
• It must be chaired by some non-partisan and well-respected person or persons of authority； for example, a retired judge or public figure. It must have power of discovery and calling of witnesses. It must have power of granting immunity to people giving evidence to encourage views being given without fear of retribution or punishment. In setting up the TRC, the Grand Debate launched by the French President Macron following the Yellow Vest movement might also be taken as reference. The Grand Debate was a nationwide campaign to gather grievances and suggestions through town hall debates, local meetings, online debates, and comment books made available at city and town halls. The data collected were processed by official personnel with the assistance of automated text analysis software. In the end, the French PM presented the findings and sketched out four key demands to be addressed.
• It must have power to propose or recommend any amnesty if such is conducive to or can bring about the rebuilding of community trust and societal cohesion. Such power must not impinge on well-settled rule of law principles and it can only make recommendation for amnesty after a full trial has taken place. Such power must not work in contradiction to the CE’s power under the Basic Law so that the power can only be exercised as a recommendation to the CE who should only in exceptional circumstances and after well-presented explanations decline to accept.
• Before exercising its power of recommending amnesty, the TRC: must determine whether the act or omission of lawbreaking is associated with a political objective and will look at the motive of the person, the context of the act, the legal nature of the act, whether the act was directed at political opponent/ State property/ personnel/ private property/ individuals, whether there were any victims of the act, whether the act was committed in the execution of an order, the relationship between the act and the political objective and all other relevant considerations.
• It may also refer to other similar principles, e.g., the Norgaard principles adopted by the Namibian settlement in exercising its power of recommendation for amnesty.

We recognise it is no easy task to set up such a mechanism within the present system. However, we consider there are still a number of ways for this to be achieved. One possibility is to set up a CoI under the current system but with its term of reference set as closely as possible to the above suggestion; another is to introduce a bill in the Legislative Council after seeking broad support of all parties. In any event, we believe if there is a will there is a way and hope all parties including the government will give reconciliation a chance.

Structural Changes

We agree the current crisis highlights certain deficiency in the present system. In this age of fast electronic communication, the old-style consultative system obviously will not work as it is intended to. We, therefore, propose there be systemic changes to be made with a view to build up a more representative and responsive system of government. The specific measures would include adopting specific tools needed to run Hong Kong smoothly and responsively:

• Central Policy Unit as a policy generator and exchange be reintroduced but with an update as regards its functions, keeping in pace with the current way of communication and social interaction;
• Deploying opinion surveys and big data to monitor public opinions;
• Revamping the function and makeup of Executive Council;
• Make continuous attempts to introduce political reforms. In this regard, the community and government must learn to accept even incremental democratic improvements are better than none; and
• Reconsolidate and modernise the entire governmental consultative structure.

With these proposals, we hope the community can focus on how to move forward rather than on daily conflicts and continuous retributions which will only bring about bigger discords and more insurmountable difficulties with no solution to the crisis in sight. We sincerely hope our collective wisdom will take us out of this current abyss.

Appendix – The Experience of South Africa in Setting up a TRC

The Truth and Reconciliation Commission (TRC) was a court-like restorative justice body assembled in South Africa after the end of apartheid. Witnesses who were identified as victims of gross human rights violations were invited to give statements about their experiences. Perpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution.

Similar to the Commission of Inquiry of Hong Kong, the TRC has the power to call upon any person to appear before the Commission, to compel him to produce any article or answer any question, and to seize any article or thing relevant to the investigation. Inadmissibility of incriminating evidence given before Commission also applies.

The TRC further established three committees to conduct hearings, namely, the Human Rights Violations (HRV) Committee, the Amnesty Committee (AC), and the Reparation and Rehabilitation (R&R) Committee. Their respective functions and powers are as follows:

Human Rights Violations (HRV) Committee

• To collect or receive from any organisation, commission or person, articles relating to gross violations of human rights; and
• To make recommendations to create a stable and fair society and prevent violation of human rights.

Amnesty Committee (AC)

• To investigate and make necessary enquiries for applications for amnesty for acts associated with a political objective within a period;
• May grant amnesty with or without hearing;
• May request (in consultation with the Attorney General) to postpone the proceedings; and
• Criminal proceedings void/ sentence lapsed if granted amnesty.

Reparation and Rehabilitation (R&R) Committee

• Make recommendations as to reparation to victims.