Written by Jerome A. Cohen
November 15, 2019
Were Mark Twain with us, he might say about citizen action to save Hong Kong what he said about the weather: everybody talks about it, but nobody does anything about it.
To be sure this, like many pithy observations, would be an exaggeration. Months ago, when the current crisis emerged, Hong Kong’s many able and experienced community leaders, as well as the Hong Kong government officials and their Beijing superiors who precipitated the crisis, seemed paralysed. Since then, efforts of various stripes have been made, if only haltingly. Now is the time for decisive action.
There is widespread consensus, both in Hong Kong and abroad, that not much time may be left. The absence of enlightened action has allowed disaster to begin destroying an important human achievement. Irrationality on all sides is superseding wisdom. Sage commentators increasingly despair. Various solutions continue to be mentioned but without detail or evident hope.
Lip service is still frequently given to the desirability of establishing some sort of independent mechanism to investigate extraordinary police misconduct and the extremely violent reaction it has inspired. Such an inquiry could impartially assess many serious allegations and make significant recommendations to remedy the situation and prevent repetition.
In addition, it could conclude with persuasive verdicts about when peaceful protests become “riots” and when, if ever, imprisonment and exclusion from public office may be appropriate for those engaged in non-violent civil disobedience.
Presumably the thoughtful proposal for an independent judicial inquiry published in this newspaper by former Chief Justice Andrew Li Kwok-nang on July 9 could have met this need and still can. Why it has not been adopted remains a mystery to this distant observer.
A credible, vigorous investigation of some kind, it is generally agreed, would be the first meaningful response to the protesters’ demands since the government’s reluctant withdrawal of its ill-advised and disingenuous extradition proposal. Such a response might well stem the march towards civil war. So why has it not occurred?
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The Hong Kong government still occasionally mentions the possibility of adjusting its existing institutions so as to establish the equivalent of an independent commission. It could have made a good-faith effort to do so months ago, but instead merely supplemented its unimpressive official organisation for investigating police misconduct – the Independent Police Complaints Council – by adding advisers who themselves deemed the arrangement insufficient.
Governments everywhere, even democratic ones, whether in London, Washington, Tokyo or Taipei, fear genuinely independent investigations.
Moreover, whatever public trust might have originally supported any Hong Kong government proposal has long since dissipated. Only truly independent, prestigious action has any chance of popular credibility. That is why this week’s suggestion by a group of pro-government legislators that an official interdepartmental committee be set up is too little and too late.
“Heaven is wonderful. The problem is how to get there.” Yet it is possible, even now, if a significant number of the many outstanding community leaders who have thus far appeared indecisive and divided can either win approval for Li’s proposal, which has ample precedent in Hong Kong practice, or organise an innovative citizens’ commission. The latter should be composed of well-known participants in politics, business, the legal professions, education, journalism, entertainment and even sports. Representatives of students, plus past and present protesters should also be included, and so too should an authoritative police official.
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If an independent citizens’ commission seems necessary, it should be based on the joint efforts of the many strands of the community. Perhaps there should be no more than 24 commission members, with other influential figures serving as advisers.
An executive committee will have to be chosen, led by a respected former judge such as Li. He or she should preside over proceedings held in public, to permit transparency, with accompanying legal safeguards. The help of a team of skilled former prosecutors, criminal defence lawyers, civil litigators and professional investigators will be needed to help analyse the key issues and incidents in what otherwise might easily become an unmanageable and endless exercise.
This commission must not be toothless but, like a judicial inquiry, empowered by the government to achieve its goals. Adequate quarters will have to be provided, and funds allocated to support required staff and activities. Above all, the commission must have the power to summon witnesses, emails and other communications, documents and records, from the government as well as the private sector.
A prime subject of its inquiry must be the formal and informal instructions given by the Hong Kong government to the police and other relevant personnel. This will be a very sensitive, yet crucial, aspect. Claims of possible official privilege not to respond to certain inquiries will have to be confronted, with the commission and ultimately the public left to draw their own inferences from refusals to cooperate.
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Such a bold inquiry, whether by a judge or commission, will take time – perhaps six months or more – as well as courage, energy, imagination, compromise and statesmanship. But its effective initiation should be welcomed by a lethargic, embattled government and an exhausted, despondent citizenry. This will help to mitigate the abuses of the present situation, reduce the stimuli to the violence that shocks and inhibits daily life and start the long process of reconciliation.
No better alternatives than a judicial inquiry or an independent investigation commission are available, and further inaction will result in much greater tragedy than the community has already suffered.
Jerome A. Cohen, professor and faculty director of NYU Law School’s US-Asia Law Institute, is also adjunct senior fellow at the Council on Foreign Relations