Hong Kong protests: calls for an amnesty or a pardon for those convicted must be resisted
- Apart from the potential backlash and waste of courts’ time and money, granting a pardon or amnesty to those convicted of protest-related crimes would constitute a manipulation of procedure and hurt the integrity of Hong Kong’s criminal justice system
Although the Basic Law’s Article 48 (12) enables the chief executive to “pardon persons convicted of criminal offences or commute their sentences”, the circumstances under which this power is exercisable are few and far in between. They must have a legitimate foundation, particularly if someone has committed a grave offence. A sentence might, for example, be commuted where a prisoner is dying, as an act of mercy, so he can be free in his final days.
In 1907, the British Home Secretary, Herbert Gladstone, told the House of Commons that “numerous considerations” influenced a decision to grant a royal pardon, including “the motive, the degree of premeditation or deliberation, the amount of provocation, the state of mind … character and antecedents”. He added, however, that “many other” factors had to be considered in every case.
In the United Kingdom, pardons are, for example, sometimes given to prisoners who provide the authorities with valuable assistance, or who show great bravery while imprisoned, or who are deemed “morally or technically” innocent.
Although a pardon indicates forgiveness, it does not, as many people suppose, expunge a conviction. A pardon cannot overturn a conviction, as only the courts can determine someone’s guilt or innocence. If, moreover, the conviction is legally flawed, the courts would normally have overturned it already.
In 1984, in the UK’s Queen’s Bench Division, the late lord justice Tasker Watkins said the effect of a pardon was to remove from the convicted person “all pains, penalties, and punishments whatsoever that from the said conviction shall ensue”, without eliminating the conviction itself.
This means that, for example, a job applicant, or someone filling in a visa application, must, when asked, disclose a previous conviction, although they may add that a pardon has been granted. If, moreover, someone is later convicted of another offence, the judge can take the pardoned offence into account, in deciding appropriate punishment.
Leave Hong Kong’s judges out of the protest politics
If a pardon is granted, it must be legally justifiable. The UK’s former justice secretary, Kenneth Clarke, once said that the subject of the pardon must not be “tainted with unclean hands”. The grant of a pardon is, therefore, judicially reviewable even if it involves an element of policy, most obviously by the offender’s victim.
In practical terms, moreover, to start handing out pardons to people convicted of serious offences after long trials would be a waste of time and money. Even if only some offenders were pardoned, the whole process could get bogged down in claims of arbitrariness, with some people complaining of being left out of the chief executive’s generosity.
The integrity of the criminal justice system must, therefore, be safeguarded, and any temptation to manipulate established procedures firmly resisted.
Grenville Cross SC is a criminal justice analyst