Wednesday, September 25, 2019

The Situation in Hong Kong: Albert Chen. "Who will supervise the police?" [陳弘毅 誰來監督警察?]

(Pix © Larry Catá Backer 2019)

Albert Chen Hung-yee 陳弘毅 has been writing on the situation in Hing Kong since late summer (See, e.g., Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]; Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong: 理性溝通的困境 ["The Dilemma of Rational Communication"].

Professor Chen writes again--"Who Will Supervise the Police?"  [誰來監督警察?].  It moves the discussion from the protests to its management.  In the process it raises, in a subtle way a number of fundamental issues of governance and constraints that go to the fundamental character of t"One Country Two Systems." The key assumptions:
"In a modern rule of law society in which the separation of powers is divided, we have legislative, judicial, and administrative organs. The police department is affiliated with the administrative organs. It is also a law enforcement agency."
 "The more a society attaches importance to the rule of law, the more attention it pays to the protection of human rights, and the more democratic its members, the more the society pays attention to the issue of the police."
To those ends Professor Chen pointedly looks back to the colonial past rather than to the current trajectory of unification that will end in a very different place by mid-century.  That is an interestung pwerspective that itself carries embedded within it a set of assumptions about the character of "Two Systems" that may not be shared by the central government.

Like Professor Chen's other writings on the situation in Hong Kong, it appeared first on 18 September 2019 in the Hong Kong periodical  Ming Pao [原刊於《明報》,2019年9月18日)].

My crude English translation and the original follow.  The response from the central government will surely come in due course.

Who will supervise the police?
Albert Chen

(originally published in Ming Pao, September 18, 2019)

Among the "five major demands" put forward by the "Anti-Reform Movement", the most public support is the withdrawal of the Fugitive Offenders Amendment Bill and the establishment of an independent investigation committee to investigate the police's law enforcement actions or the entire amendment. On September 4, the Chief Executive Lin Zheng announced that he would formally withdraw the Bill in accordance with the Rules of Procedure of the Legislative Council. As for the investigation, she said: "The Government believes that the police enforcement actions should be assigned to the independent independence according to the established mechanism. The police will handle it." She also promised that the government will seriously follow up on the reports and recommendations submitted by the IPCC in the future.

At present, one of the focuses of social concern is how we monitor police enforcement actions, including their use of force against demonstrators who engage in illegal activities, to prevent abuse of police power. This article will start from the basic principles and the foreign police system, and conduct a preliminary discussion on the issue of the police, and discuss the role of the current police system in Hong Kong in dealing with this regulatory storm.

In any society or country with government governance, the exercise of state power has its mandatory or violent side. This means that the government has the right to impose sanctions on individuals who violate national laws, such as suspected of breaking the law. Individuals are arrested and prosecuted in judicial proceedings. If the individual concerned is found guilty, he may be punished, such as imprisonment, or sentenced to death in certain countries. The exercise of state coercion depends on public officials who are specifically responsible for using force in the name of the state, that is, the police in modern society.

In a modern society ruled by law, as with any government official, the power of the police is conferred by law, and the police must not exceed the authority of their laws when exercising their powers. For example, the law authorizes the police to use the necessary force when arresting citizens who are reasonably suspected of breaking the law. However, if the police do not authorize the use of violence by law, the use of violence against the public, such as beatings, constitutes a criminal offence. The "seven police cases" and the police chief Zhu Jingwei, which occurred during the "Occupy" period, are typical examples.

In a modern rule of law society in which the separation of powers is divided, we have legislative, judicial, and administrative organs. The police department is affiliated with the administrative organs. It is also a law enforcement agency. It is characterized by its ability to use force in law enforcement. Another feature of the police department is that it plays an important role in supervising the implementation of the law, because in general, if someone is suspected of breaking criminal law, the police will investigate, collect evidence, and then transfer the evidence to prosecution. The department (such as the Department of Justice of Hong Kong), the prosecution department decides whether to prosecute, and finally the court conducts a fair trial of the case.

The police is an organ that supervises the implementation of the law. It is responsible for supervising whether the people are law-abiding. How to supervise whether the police themselves act according to law or are illegal? In other words, who is supervised by the supervisor itself? Who is responsible? This is the issue of “supervising the police” or “monitoring the police” in the modern rule of law, or the “accountability” problem of the police. The issue of the issue of the police is important because it is related to whether the rule of law can be enforced, whether it can implement the principle of equality under the law, whether it is the protection of the rights and freedoms of citizens, and the prevention of a monopoly on the legal use of force. The right of the police violates the freedom and human rights of the people while exercising their powers.

The more a society attaches importance to the rule of law, the more attention it pays to the protection of human rights, and the more democratic its members, the more the society pays attention to the issue of the police. However, from the perspective of historical development, even in the common law countries in the West (such as Britain, the United States, Canada, Australia, etc.), the issue of the police has received more attention since the 1960s. Previously, they all accepted the internal departments of the police to supervise the police, investigate their violations and deal with people's complaints against the police. This is a system of self-monitoring by the police, not an external, independent, non-police civilian who supervises the police.

This situation began to change in the 1960s. At that time, the United States had a civil rights movement, including anti-Vietnam demonstrations. Due to the popularization of television, police violence was placed in the public eye. In addition, the awareness of middle-class human rights was soaring, and the issue of police was beginning to receive attention from mainstream public opinion. However, the US police strongly resisted the establishment of the police commission by civilians (ie non-police officers), such as in New York and Philadelphia, which were abolished by the police shortly after their establishment. In the United Kingdom, in 1962, high-level committees reported on issues such as police and police. Although there were a few opinions in favor of establishing an external supervision mechanism, most of the opinions still believed that the police's internal supervision system should be maintained.

In 1976, the British government finally decided to reform the police system and set up a Police Complaints Board composed of private people. At that time, Robert Mark, the police chief, resigned in protest to protest, which shows that the police External supervision involves political wrestling, including the sensitive relationship between the government and the police. The British police system has developed further in the 1980s. Driven by the Scarman report on the independent investigation of riots after the 1981 Brixton riots, the UK established the new Police Complaints Authority in 1985, compared to the 1976 committee, the organization of the 1980s. Enjoy more power.

Since then, the UK's police system has continued to evolve in the direction of an independent external police organization, which was reflected in the Independent Police Complaints Commission, established in 2004, which was reorganized into the Independent Office for Police Conduct in 2018. In general, the current police system in the UK has different channels of investigation for different types of complaints against the police. The most serious cases are investigated directly by the Independent Police Commission. Other cases are investigated by the police under the guidance or supervision of the IPCC. Some cases are handled internally by the police. Regardless of the channel, the results of the final investigation include the possibility that the respondent does not need to reply, the complainant must face disciplinary proceedings, or transfer the evidence to the prosecuting authority for consideration of criminal prosecution.

The current police system in Hong Kong has evolved from the institutional development of the 1970s. In 1974, the Police Complaints Division was established within the Police Force. This is an internal supervision system. In 1977, the Governor set up a standing committee for police complaints between the non-official members of the Executive Council and the Legislative Council. It is responsible for external supervision of the work of the CAPO. The group was reorganized into the "Police Complaints Commission" in 1986. In 1994, it was renamed the "Complaints Independent Police Complaints Committee" ("IPCC"). In 2009, the IPCC was renamed the IPCC (English name is still Independent). Police Complaints Council) and became a statutory body established and operated under the Independent Police Complaints Commission Ordinance.

The current police system in Hong Kong basically involves the investigation of complaints made by the police by the Police Complaints Against Police Office. The investigation report is submitted to the IPCC for review. The IPCC can make comments or suggestions on this. The police can modify the report accordingly. The IPCC dispatches its members or observers to participate in the investigation activities; after the CAPO submits the report, the IPCC may arrange to meet the complainant and witnesses to further understand the situation. The results of the investigation will be submitted to the complainant after review by the IPCC. It is the police's own decision to take disciplinary action against the respondent or transfer the case to the prosecution. However, the police must inform the IPCC and the latter can make an opinion.

In the anti-revision campaign, the police have received hundreds of complaints and are in the process of being processed. The IPCC has made an additional arrangement for this anti-reform exercise. It is to set up a task force to collect information on the police's handling of demonstrations, accept the relevant information provided by the public, and inform the police about the situation. Then, by writing a report, try to restore the truth about the facts and conduct a comprehensive review and assessment of the police's handling of the demonstrations. The IPCC also hired five experts with extensive experience in police affairs from the United Kingdom, Canada, Australia and New Zealand to assist in the above review and assessment.

I think that the IPCC has tried its best to play its role and play the role of supervisor in handling the police's demonstrations of the campaign. It is not a comprehensive investigation of the background and causes of the regulatory storm, but even if such a committee is established in the future, it is estimated that it cannot replace the functions of the IPCC. In particular, it cannot replace the IPCC’s handling of hundreds of amendments. The case of a complaint against the police.



“反修例運動”提出的“五大訴求”中, 最多市民支持的是撤回逃犯修訂條例草案和成立獨立調查委員會對警方的執法行為或整個修例事件進行調查。在9月4日,特首林鄭宣佈將依據立法會《議事規則》正式撤回條例草案;至於進行調查的問題,她說:“政府認為有關警方執法行動,應該按既定機制,交由專責的獨立監警會處理”。她並承諾,政府將認真跟進監警會日後提交的報告和建議。


在任何有政府管治的社會或國家裏, 國家權力的行使都有其強制性或暴力的一面,這即是說,政府有權對違反國家法律的個人使用強制力予以制裁,如對涉嫌違法的個人進行拘捕,並在司法程序中予以檢控,如有關個人被判有罪,可被施以刑罰,例如監禁,或在某些國家被處以死刑。國家強制力的行使,有賴於專門負責以國家的名義向人民使用武力的公職人員,即現代社會中的警察。



警察是監督法律的實施的一個機關,它負責監督人民是否守法,那麽如何監督警察本身是否依法行事或有違法行為呢?換句話說,監督者本身受誰監督?向誰問責?這便是現代法治社會中的“監督警察”或“監警”問題,或稱為警察的“問責性”(accountability)問題。監警問題之所以重要, 一方面是因為它關係到法治是否得以伸張,是否能貫徹法律之下人人平等的原則,也關係到公民的權利和自由是否得以保障,防止對合法使用武力有壟斷權的警方在行使其權力時侵害到人民的自由和人權。



到了1976年,英國政府終於決定改革監警制度,成立了一個由民間人士組成的警察投訴委員會(Police Complaints Board);當時的警務處長Robert Mark因此憤然辭職以示抗議,由此可見,對警方進行外部監督,其實涉及政治上的角力,包括政府與警隊的敏感關係。英國的監警制度在八十年代有進一步的發展。在1981年Brixton暴動之後對暴動進行獨立調查的Scarman報告書的推動下,英國在1985年成立了新的獨立投訴警察局(Police Complaints Authority),相對於1976年的委員會,八十年代的這個組織享有更多的權力。
其後英國的監警制度繼續演化,方向是獨立的外部監警機構的擴權,這體現在2004年成立的Independent Police Complaints Commission,這機構在2018年改組為Independent Office for Police Conduct 。大致來說,英國現時的監警制度對於不同類型的針對警方的投訴案件,有不同的調查渠道。最嚴重的案件由獨立監警會直接進行調查,另一些案件在監警會的指導或監督之下由警方進行調查,有些案件則由警方內部自行處理。無論是哪個渠道,最後調查的結果包括以下可能性:被投訴者無須答辯,被投訴者須面對紀律程序,或把有關證據移交檢控當局考慮刑事檢控。

香港目前的監警制度演化自上世紀七十年代的制度建設。1974年,警務處內部成立了投訴警察課,這是一種內部監督制度。1977年,港督設立行政立法兩局非官守議員警方投訴事宜常務小組,負責對投訴警察課的工作進行外部監督。這小組在1986年改組為“投訴警方事宜監察委員會”,1994年改稱“投訴警方獨立監察委員會”(“警監會”),2009年警監會改名為監警會(英文名稱仍為Independent Police Complaints Council),並成為一法定機構,根據《獨立監察警方處理投訴委員會條例》成立和運作。



我認為監警會已經盡力發揮其功能,就警方對於這次運動的示威活動的處理,扮演監督者的角色。 它不是一個全面調查修例風波的背景和成因的調查委員會,但即使將來成立這樣的委員會,估計也不能取代監警會的功能,尤其不能代替監警會處理數以百計的涉及修例風波的對於警方的投訴個案。

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