The Evolution of a Police Inquiry (part 2 of 2)
Updated: Mar 2, 2020
Part 1 of this blog considered the ways in which several nations have carried out investigations of police and critical incidents of social unrest. Having an "independent judicial inquiry into police use of force" is one of the five demands of the Hong Kong (HK) protest movement that has become known the world over for its tireless demonstrations in the second half of 2019. The calls for a probe into police activity during the civil unrest have uncovered serious flaws in the way internal complaints, and complaints made by individuals outside the force are handled by the Independent Police Complaints Commission (IPCC) and the Complaints Against Police Office (CAPO). Amid a huge backlog of pending court cases, news stories in HK frequently reveal how charges laid by Police have either been withrawn or have not lead to convictions. It must therefore be asked what the purpose of so many arrests and charges made by police is? In the face of stubbornly persistent refusals and denials of the HK Chief Executive (CE), Carrie Lam, this blog joins the chorus of public opinion from around the world that keep on calling for an independent judicial inquiry into police conduct.
Human Rights under attack in Hong Kong
On 28 June, 2019, after just 4 weeks of protest and Police action in HK, four special rapporteurs to the United Nations (UN) wrote to China's Central Government in Beijing as a member of the UN expressing concern over what was happening in the SAR : alleged excessive use of force against peaceful demonstrators and human rights defenders, as well as alleged arbitrary arrest of individuals participating in peaceful demonstrations. Their letter included an annex detailing the various conventions that were apparently being broken, and requested Beijing respond to the specific allegations. Central Government was thereby reminded of its human rights obligations and put on notice that the UN was watching. Chinese officials were given 60 days with which to respond to the letter, to avoid its contents being made public. To date the Chinese government is not known to have responded, thus the letter was published.
An open letter to Carrie Lam
On 29 June, 2019, Amnesty International, Hong Kong Human Rights Monitor, and Human Rights Watch jointly published an open letter to HK's leader, the CE Carrie Lam. In the letter the three organisations urged the HK government to carry out an independent, impartial, effective and prompt investigation into the use of force, including tear gas, guns firing bean bag rounds and rubber bullets, batons and pepper spray by the HK police force (HKPF) against protesters in the vicinity of the Central Government Offices on June 12, 2019. They gave details of incidents of particular concern, and warned that the HK government’s failure to act appropriately and in a timely manner would undermine the HKPF's reputation as a generally rights-respecting law enforcement agency.
Enforcing an outdated law
On 10 July, 2019, a UK based NGO, Hong Kong Watch, issued a 38-page report calling on the HK government to drop rioting charges against protestors stemming from the June 12, 2019 protests. They called upon the government to conduct a judge-led independent inquiry into incidents of police violence. It further urged reform of the city's Public Order Ordinance which it said "fails to comply with the international human rights standards that HK is signed up to" is draconian and outdated.
By December, 2019 Pro-democracy lawmakers had drafted a bill to amend the Public Order Ordinance to change the definitions of unlawful assembly and a riot, and to reduce the relevant punishments for the charges. The move was too late for those already charged with "rioting" by the HKPF.
The United Nations expresses its concerns
Speaking in the Malaysian capital of Kuala Lumpur on 5 October, 2019 about the weeks of civil unrest in HK, U.N. High Commissioner Michelle Bachelet told a media conference: "We are troubled by the high levels of violence associated with some demonstrations... and also alarmed by the injuries to the police and protesters, including journalists and protesters shot by law enforcement officers. She called upon HK to immediately carry out an “effective, prompt, independent and impartial investigation” into acts of violence including the shootings, adding that those responsible must face due process.
Article 19 makes a stronger plea
Not completely happy with the statements issued by UN High Commissioner in October, the International human rights organisation, Article 19, issued a challenge to the UN to denounce the HK Government for its systematic violations of the rights to freedom of peaceful assembly and freedom of expression, and condemn the unnecessary and disproportionate use of force by police in HK. The statement from Article 19, issued on 25 November, 2019 and co-signed by 20 different international human rights concern groups said that the HK and Chinese Central governments have allowed police to operate with complete impunity.
Article 19's prescription for justice in HK : "As a minimum first step, HK authorities must establish an independent commission of inquiry into excessive use of police force, bringing to justice any law enforcement official responsible for unlawful use of force, as well as their superior officers. Any response to allegations of violent attacks on police must be handled through a fair judicial process. Those detained solely for exercising their rights to peaceful assembly and free expression should be unconditionally released and charges against them should be immediately dropped."
Amnesty International repeats the call
As indicated in part one of this blog, Amnesty International has been calling for an
an independent, impartial investigation into use of force by the HKPF for some time.
On 19 September, 2019 Amnesty International released details of a field investigation that involved interviewing nearly two dozen arrested persons and gathering corroborating evidence and testimonies from lawyers, health workers and others. The organisation demanded a prompt and independent investigation into the violations, which appear to have escalated in severity since the mass protests began in June.
“The HK police’s heavy-handed crowd-control response on the streets has been livestreamed for the world to see. Much less visible is the plethora of police abuses against protesters that take place out of sight,” said Nicholas Bequelin, East Asia Director at Amnesty International.
11 November, 2019 Amnesty International decried HKPF action which it said was retaliatory, and reckless. Man-Kei Tam, Director of Amnesty International HK, was responding to the shooting of two protesters by police during demonstrations in Sai Wan Ho on the morning of 11 November. “Today was another shocking low for the HKPF. The live rounds fired by police are clear evidence of reckless use of force. Another policeman was seen driving at high speed into a group of protesters on a motorbike. These are not policing measures – these are officers out of control with a mindset of retaliation," he said.
3 December, 2019 the Director of Amnesty International HK Man-Kei Tam spoke at an event in Tokyo, saying that violence by police "is also Amnesty's focus and we consider this to be the root cause of all the violence in HK." Amnesty International, which believes that "something structural" is behind the systematic use of excessive force by HKPF, attributes it to the central Chinese government's focus on national security since Chinese President Xi Jinping took office, he added.
20 December, 2019 Amnesty International published a report on the sexual harassment and assault of protesters, and the systematic failure of police to deal properly with allegations. A lawyer involved in one of the cases said his client [the plaintiff] “has formed the view that the HKPF cannot be trusted to impartially investigate her [the plaintiff's] allegations or indeed any criminal complaints relating to police officers.” According to the lawyer, she [the plaintiff] filed her report through proper channels, put up with invasive questioning and underwent a medical examination as requested by the police, only to be subjected to an apparent smear campaign that attempted to discredit her [the plaintiff]. Such allegations of sexual violence are one more pressing reason for establishing an independent, impartial investigation into the conduct of the HKPF.
2 January, 2020 Amnesty International noted how the HKPF showed the world their disdain for the rights to freedom of expression and peaceful assembly by violently dispersing a largely peaceful protest held the day before. A massive protest that had begun with HKPF approval in place was suddenly shut down three hours into the event. "Police gave the organiser and hundreds of thousands of protesters just 30 minutes to disperse. The police then started firing tear gas and water cannon at protesters, including those who remained peaceful," Man-Kei Tam, the Director of Amnesty International HK said. “This in effect prevented people from exercising their rights to freedom of expression and peaceful assembly. The police should facilitate peaceful protest, not restrict or disrupt it."
30 January, 2020 Amnesty International dedicated two chapters of its 25-chapter Annual report to HK and China, respectively. In the HK chapter, the watchdog organisation raised concern over Hongkongers’ freedom of peaceful assembly. “There was a rapid deterioration in the rights to freedom of peaceful assembly, expression and association as the HK authorities increasingly adopted mainland China’s vague and all-encompassing definition of national security,” it said. The international body accused the city’s police of responding to the protests with “unnecessary and excessive use of force”.
27 February, 2020 Amnesty International joined the voices of opposition critical of the HK government's annual budget plan to increase spending on personnel and equipment for the HKPF by $25.8 million. The increase in police spending comes after months of unrest and pro-democracy protests, and comes amid widespread claims made by demonstrators, watchdogs and NGOs of police brutality. The total funding to be allocated to the police is now set to be HK$25.8 billion, up 25 per cent from the previous year. The police are expected to add a further 2,500 posts to their 35,000-strong force in the next financial year to "strengthen operational capability".
Pro-democracy lawmakers were vocal in their criticism. “To this day, the government still doesn’t understand where the public opinion lies,” said Civic Party leader Alvin Yeung.
Another pro-democracy legislator Eddie Chu questioned whether the police could be able to hire more officers in the coming year: “The police’s reputation has been tarnished, Hongkongers are ashamed to be associated with the force. I really wonder is it possible to see more than 2,000 young Hongkongers join the force in the coming year,” Chu said.
Tam Man-kei, Director of Amnesty International HK, told media that the police should only ask for more funding and resources after alleged cases of police brutality are investigated through an independent commission of inquiry.
28 February, 2020 Amnesty International joined a chorus of outrage over the arrests of three pro-democracy activists by HKPF for their participation in an unapproved anti-government protest on 31 August, 2019 : Jimmy Lai, Lee Cheuk-yan and Yeung Sum. The Civil Human Rights Front had unsuccessfully sought HKPF permission for that protest, but many demonstrators chose to defy the police refusal. Seen as a move to crush dissent, some reports indicated the arrests were part of a police strategy to gain access to their mobile phones, to extract names and details of others involved in the city's unrest. Tam Man-Kei, Director of Amnesty International HK, said there was an "urgent need" for an independent inquiry into the tactics employed by police against anti-government protesters over the past year.
On 5 July 2019, after anti-government protesters had ransacked the LegCo (Legislative Council) chambers at Tamar, the HK Bar Association (HKBA) issued a media statement. It called on the government to respond in a sincere way to the demands of the community voiced so emphatically over the previous weeks. It said that a refusal to engage with the public over important and pressing issues is inimical to the Rule of Law in HK.
Importantly the HKBA renewed its call on the government to set up an independent inquiry to look into the clashes between police and protesters that occurred on June 12, 2019. It said that such an inquiry should also investigate the events on July 1 at the Tamar Complex, including the circumstances under which the complex was left unprotected. HKBA noted that the Independent Police Complaints Council (IPCC) had commenced a study into the key events of the previous few weeks. However, the HKBA was of the view that the scope of powers and potential areas of investigation of a statutory independent inquiry, which could look into not only what happened but why events happened, could not be met by the IPCC. It said that the IPCC lacked the mandate to inquire into anything further than complaints against police and police practice and procedures.
On 14 January, 2020 the HKBA wrote a letter to the HK CE. They gave support to the suggestion that the government hold a Commission of Inquiry (COI) into matters arising from the withdrawn proposal to pass the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (simply termed the 'Anti-extradition Bill' by lay citizens), and issues arising from the use of force by the HK Police in the social unrest that has ensued since March 2019. In fact members of the HKBA had already formulated a 60-page paper on the proposed COI. Their paper more or less guided the CE as to how such a COI might be set up and run. The detailed blueprint the HKBA provided, suggested that the COI could consider ten aspects of 15 key dates, including the use of force by police and protesters, the use of face-covering masks in conflicts, and participants' sources of funding. The key question in the HKBA's letter was whether or not the HK government was inclined to change its position that a COI was not necessary.
On 16 January, 2020 the Police supervisory body the IPCC halted the release of a long-awaited report into the handling of the pro-democracy and anti-extradition protests, stating that the reason for indefinitely postponing the release of the report related to an ongoing judicial review questioning its right to initiate such an inquiry.
The CE has repeatedly insisted there has been no police brutality in recent months, despite the staggering amount of photographic, video and anecdotal evidence that would suggest otherwise. Meanwhile the IPCC has been criticised by its own experts, rights groups and protesters as a toothless body that relies on the police investigating themselves. The postponed release of its report was announced amid growing international criticism of violence against protesters by the HK Police force.
By the 22nd January, 2020 the HKBA was reporting that there had been no response from the CE or her government concerning the proposed COI. Erik Shum, a member of the council governing the HKBA, indicated that if the Police or protesters had not used excessive force, their acts should be exonerated. He said that both sides would benefit from an independent commission of inquiry into matters of concern. He added that the CE's blank denial that there is police brutality in the city does not help calm unrest in the city, as the public will not believe this and public perception is an important factor in this matter.
USA : the HK Human Rights and Democracy Act
Americans, like people in many countries stand with HK in support of human rights and democracy. Protesters in HK pinned a lot of hope on the Hong Kong Human Rights and Democracy Act proposed and passed by the U.S. Senate because it contains powerful provisions which strengthen their hand. The legislation was finally signed by President Trump and became law on 27 November, 2019. It guarantees that pro-democracy protestors who are arrested do not find their applications for U.S. visas blocked after a political trial; it ensures that the violators of human rights bear the consequences of their actions through the application of Magnitsky sanctions; and it sends a clear signal to China that it cannot erode the city’s autonomy and freedoms while reaping the benefits, by strengthening U.S. State Department scrutiny of Hong Kong’s freedoms.
29 February, 2020 media reports conveyed the concern of the U.S. State Department and a range of other notable figures, due to the arrests in HK of media mogul Jimmy Lai Chee-ying and two veteran pro-democracy politicians over an unlawful assembly, pointing to its implications on the city’s freedom. The U.S. Department of State called on HK authorities not to use law enforcement “selectively for political purposes”. Several U.S. republican lawmakers and Chris Patten, the city’s last governor of HK during its British rule, also joined the criticism. Patten said the arrests were “outrageous” and the action aimed to “frighten the community”.
Note: The HK Police Force stopped recruiting from foreign services in 1994, but older British officers left over from the handover continue to dominate its senior staff today.
5 July, 2019 : During a House of Commons meeting Helen Goodman, member of the British Labour Party and parliamentarian, is said to have singled out for retribution the HK Police superintendent thought to have given the order to use tear gas against HKprotesters. In response, four HK Police associations, comprised of representatives from junior police officers, inspectors, overseas inspectors and superintendents respectively wrote to her demanding an apology. They claimed that naming a senior British officer as a commander who authorised the use of force against extradition bill protesters, had encouraged internet bullying of expatriate officers.
23 July, 2019 : Following the Yuen Long attack on protesters and MTR passengers by armed thugs, the British Foreign Secretary Jeremy Hunt has called for an independent inquiry into the police response to protests.
In addition, speaking in the British House of Commons, junior foreign minister Andrew Murrison demanded that the inquiry be “full and comprehensive…and crucially independent."
“It probably is not sufficient simply to have an internal police inquiry,” he said. “It really does need to involve HK’s excellent and well-respected judiciary.”
2 September, 2019 : British legislators were asking questions in their parliament about the establishment of an independent inquiry into police brutality in HK. However, although the British Foreign Secretary noted that any investigation must be credible and command the trust of the people of HK, a special inquiry by the IPCC had been set up. The IPCC inquiry clearly does not meet the standard set earlier by Andrew Murrison. The Foreign Secretary discussed the IPCC inquiry with the HK CE when they spoke on 9 August 2019.
4 February, 2020 : The last British governor of HK called on the Carrie Lam Administration to hold an independent inquiry into the months of anti-government protests as well as police conduct, and political reform in the city. Delivering Hong Kong Watch’s inaugural Paddy Ashdown Memorial Lecture, Chris Patten said an independent inquiry, reform of public order legislation and political reforms should all form part of a road map towards the reconciliation of Hong Kong society. "Most important of all, if HK is to return to normal and to rehabilitate the reputation of the police there should be a proper independent public inquiry into the reasons for the demonstrations, the behaviour of the demonstrators, and the conduct of the police," Patten said.
May the prayers be answered
On 23 October, 2019, amid continued controversy surrounding large-scale political protests in HK, and fears of a crackdown in the city by the Communist Chinese government, Catholic leaders echoed protesters’ calls for an independent inquiry into alleged police brutality. HK's Auxiliary Bishop, Joseph Ha Chi-shing, a supporter of the protest movement, wrote on his Facebook account : "I ask the Lord to move the government of the special administrative region to respond to the public opinion, and set up an 'Independent Commission of Inquiry' so that the community can begin with the truth and begin the path of real reconciliation."
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HK's political system is clearly broken. There seems little doubt that from the outset of protests the CE was willing to use the HKPF as a weapon against the people of HK. There's also no doubt that she has been under immense pressure to initiate an inquiry into Police operations during the civil unrest. However, equally, she has adopted a bull-nosed approach and seems even more keen to use police force to stem opposition to her governance. Despite receiving a further open letter from 44 parliamentarians and dignitaries from 18 countries that appealed to the CE to use her authority and responsibility to “seek genuine ways forward out of this crisis by addressing the grievances of HK people, bringing the HKPF under control, ensuring accountability and an end to impunity”, nothing has changed (see our blog on this letter).
The CE was also sent an open letter signed by hundreds of members of the HK legal profession on 30 November, 2019. The letter expressed shock and disappointment at the lack of any meaningful and constructive action taken by the government to bring about a peaceful solution to the ongoing protests. Here were sound voices from HK's own judiciary saying something needed to be done and specifically calling for an independent inquiry! No one could say they were an "outside influence meddling in HK affairs"! (see our blog on this letter).
To many in HK, the IPCC investigation begun by the CE was another of her half-measures, an attempt to fudge the issues, or a delaying tactic, or a combination of these. Doing so was merely about calming simmering public anger, rather than addressing the key policing and human rights issues of public concern.
Even amidst the Covid-19 outbreak the police are carrying out arrests. Does the Police Chief give her no choice? We note that although the CE recommends and nominates the city's Chief of Police, ultimately the appointment is made by Chinese central government, without any engagement of the people who the police are meant to serve. It's clear this disconnect, and the CE's continuing use of force is not winning her popularity, but she seems unconcerned. There is reasonable suspicion also that she has been aided by central government in Beijing, CCP and most likely even the PLA in moves against dissent.
Getting the CE to begin the type of independent inquiry HK genuinely needs still seems a tall order. While it seems that the HKPF and the CE are the main opponents to having one, Central Government in Beijing is no doubt also opposed to any concession to protesters' demands. Outdated laws and only piecemeal adherence to international human rights conventions, remain complications for protesters who began this 'revolution'. Since the handover, China's Central government has progressively stripped away elements of democracy that had been put in place by the government of Chris Patten. It's been a steady and systematic process of 'Chinafication' that deserves its own blog. Watch this space!
While HK is reeling from the Covid-19 outbreak, and its economic impact, democracy protesters might find there is now even more support for their 5 demands than previously. There is greater unity in opposition to Lam and her government than ever before. Come September, when there will be Legislative Council elections in HK, the current balance of power in LegCo is almost certain to change. In the meantime one way people can "Stand with Hong Kong" is by signing a petition that calls for a public referendum for HK. Wethepeopleofhk started its own petition that seeks to bring justice to HK through democratic means via a referendum. Will you support this initiative by signing it and forwarding the information to your contacts? Here's the link to our blog, and there's a link inside that will take you to the AVAAZ petition.
We, the people of HK, still hold hope that those vestiges of the legal and judicial systems that operate in HK will work in pro-democracy protesters' favour. After all, it was China who breached the 1984 Joint Declaration, and who fails to give its autonomous regions true autonomy. We have the support of the leaders of the G7 countries who issued a joint statement in November, 2019 that reaffirmed the existence and importance of the Sino-British Joint Declaration of 1984 for HK. The city state's 'special trading status' with the U.S. is important for both China and the SAR, so this will keep trade, financial, economic and political pressure on Central government. The human rights of U.S. citizens living and working in HK, and the status of mutual business interests are unlikely to be forgotten. This pressure will increase given the economic impact of Covid-19 in mainland China. Help from beyond HK is needed now more than ever, and an answered prayer would be a true blessing for the city.