There is probably nothing that matters more to us than the right to life, which is the basis for obligating the authorities to provide a safe environment for their citizens. But social stability and personal safety suddenly disappeared in Hong Kong in the second half of 2019 after large-scale social unrest broke out, resulting in vast destruction which had no parallels in our living memory.
Scarcely less important than the need to maintain political stability is the need to maintain social harmony. But Hong Kong has remained inharmonious because of deep polarization following the anti-extradition campaign in 2019. While social order has been restored in Hong Kong, much needs to be done to mend the social fractures caused by the social unrest. To this end, I suggest the setting up of a reconciliation commission to be headed by a reconciliation commissioner, which is tasked to heal wounds, restore personal relations and bridge political divisions by pursuing reconciliation on the principles of restorative justice.
Restorative justice has come under a positive spotlight from scholars and criminal justice practitioners since the 1990s. Howard Zehr’s book Changing Lenses: A New Focus for Crime and Justice is credited with being groundbreaking as well as being one of the first to articulate restorative justice. It is also influenced by the theory of “reintegrative shaming” propagated by John Braithwaite, who argues that societies which effectively shame criminal behavior but do this within a cultural context of respect for the offender and which follow shaming with gestures of reacceptance have low crime rates. In a nutshell, restorative justice’s victim-offender mediation and family group conferences offer solutions for repairing the harm related to conflict, broken relationships and victimization by bringing the offenders, family, victims and other stakeholders into the reconciliation process.
First of all, I propose appointing a reputable person with integrity to be the reconciliation commissioner. In addition to getting administrative support from the reconciliation commission, the commissioner will be assisted by a board of advisers comprising local dignitaries with relevant reconciliation experience to coordinate all major activities currently run by various bureaus covering social welfare, community work and rehabilitation of offenders.
Under the Labour and Welfare Bureau, the Commissioner for Rehabilitation is mainly responsible for formulating development strategies for rehabilitation services. We can take a leaf from the LWB’s book to flesh out the powers and responsibilities of the reconciliation commissioner. The pay scale of the reconciliation commissioner should be set on par with that of a D4-rank Directorate because of the huge task involved.
The three main duties of the reconciliation commission should be: (1) provision of reconciliation mainly for offenders of the 2019 riots and repairing of relations among friends and family members; (2) implementation of education and community projects in 18 districts to boost unity and harmony; and (3) consideration of setting up a riot compensation program for businesses which suffered damage as a result of the riots.
Since the scope of the Mediation Ordinance is limited to civil proceedings, we can learn from other common law jurisdictions to make statutory amendments to enable restorative justice processes to occur within our criminal justice system. For example, New Zealand was one of the pioneers to initiate restorative justice principles with its children. Section 717 of the Criminal Code and the Youth Criminal Justice Act of Canada provides that alternative measures may be used if an accused admits criminal liability. The law drafters of the Department of Justice can play an indispensable role in making the necessary statutory changes to accommodate restorative justice practices.
As a pilot project, restorative justice-based reconciliation will be managed by experienced NGOs for a period of three years. Supervised by the reconciliation commission, NGOs will get government funding to run these reconciliation projects and enjoy a high degree of autonomy in its day-to-day operation. It is worth noting that some NGOs have experience in organizing restorative justice conferences in Hong Kong. For example, the Evangelical Lutheran Church of Hong Kong was the pioneer in providing a mediation service for those cautioned under the Police Superintendent’s Discretion Scheme with the support of Sheung Shui Police Station from 1999 to 2001. It is called the pre-charge program because of its diversion from the court process. Post-charge programs are suitable for offenders of more serious offenses. Mediation services have also been provided by the Methodist Centre’s Project Concord on Hong Kong Island.
More financial resources should be provided by the government to enable these NGOs to recruit and train more mediators, especially for post-charge programs. Trained mediators should comply with the professional code of conduct set for mediators. Any interested NGOs will be welcomed if they can meet the standard of mediation and reconciliation required by the reconciliation commission.
Concerning community and educational programs, the 18 District Councils are in a better position to formulate, design and implement these programs in accordance with local tastes and interests. Supervision can be provided by the reconciliation commission. These programs should aim at facilitating community reconciliation, promoting community unity and fostering national consciousness.
Finally, the government should give serious thought to the setting up of a no-fault riot compensation program for shops and homes which suffered physical damage during the 2019 riots. From a broad perspective, this compensation program can facilitate reconciliation. In the UK, the vast majority of businesses which suffered losses from the 2011 riot have received a payout. In 2012, the UK police authority completed 95 percent of uninsured compensation claims under the Riot (Damages) Act of 1886. Regrettably, Hong Kong does not have such a riot compensation program.
It is time for Hong Kong to pursue restorative justice-based reconciliation and mend the social fractures. Leaving day-to-day operation to NGOs, the reconciliation commission would be mainly responsible for supervising these reconciliation projects. Setting up a riot compensation program and launching community and educational programs can also facilitate reconciliation at the community level. Lost ground can always be regained; lost time, never.
The author is a barrister, a member of Chinese Academic Network and co-founder of Together We Can.
The views do not necessarily reflect those of China Daily.