Johannes Chan on the Power of the Chief Executive to Grant an Amnesty: A Possible Solution to the Extradition Bill Controversies (HKLJ)

"The Power of the Chief Executive to Grant an Amnesty: A Possible Solution to the Extradition Bill Controversies"
Johannes Chan
Hong Kong Law Journal
2019, Vol 49, Part 3, pp. 865-882

Abstract: In response to calls for an amnesty as one of the measures to bring to an end the 5-month conflicts arising from the proposed amendments to the Extradition Bill, the HKSAR Government said that it has no power to grant an amnesty and that to do so is against the rule of law. This article refutes both arguments, and argues that there are different legal means to allow the HKSAR Government to grant amnesty to both the protesters and the police; that granting immunity from prosecution on grounds of public interest is not contrary to the rule of law; and that, in light of foreign experience, the situation in Hong Kong is ripe for a serious consideration of the granting of amnesty.

Dziedzic and Yam on Amnesties in Hong Kong (CCPL)

HKU’s Centre for Comparative and Public Law has released Amnesties in Hong Kong: Preliminary Discussion Paper. Authors Anna Dziedzic and Julius Yam argue that amnesty – in the form of pardons and/or immunity from prosecution – provide a way to address the ongoing civil conflict in Hong Kong. Amnesties have been used throughout Chinese history, in Hong Kong and all over the world as a way to bring conflicting parties to the negotiating table, cease hostilities, and to promote reconciliation.

     The Discussion Paper outlines the purpose and justifications for amnesty as well as discussing some of the common objections made to amnesty in Hong Kong. It explains how amnesty is not contrary to the rule of law, but rather, properly designed and implemented, amnesty can be consistent with Hong Kong’s existing legal framework and work to support amnesties can support peace, good governance, justice and the rule of law. 

     Global comparative experience offers a range of choices for the design of amnesty. The Discussion Paper suggests some options for design, tailored to meet the current needs of Hong Kong, covering questions such as: Whom should an amnesty cover? What offences should be included (or excluded)? What time period should the amnesty cover? What conditions might be attached to an amnesty? What procedure might be adopted for assessing and granting amnesty? The Discussion Paper also emphasises the importance of the design process: if amnesty is to work to defuse conflict, it is also important that all sides take ownership of the amnesty and work to make it effective and sustainable. 

     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 of the use of amnesty in Hong Kong and its potential to contribute to rebuilding trust and reconciliation. Click here to download the full Discussion Paper (in English) and Chinese translation.