• 特赦自有方|戴啟思
  • 2019-10-21    


Amnesty or Legal Oblivion: Lessons from 1660

When the Chief Executive returned from the ordeal of presenting her Policy Address the other day, she faced the press. One of the questions put was about her addressing the protestors' remaining demands. The Chief Executive repeated her earlier explanation that an amnesty for demonstrators was outside her constitutional remit under the Basic Law.

It was a matter for the Secretary of Justice, she said, to decide whether to bring a prosecution. The Chief Executive might have rounded off her remarks by saying that if a trial went ahead after a decision to prosecute, it was for the judge or magistrate alone to decide whether the defendant was guilty and what should be the sentence in the event of a conviction. She could not get involved in the Administration of Justice.

This explanation is a simple but reasonably accurate description of the way the Justice system works. Where the police investigate a case and refer it to the Secretary of Justice for a decision to prosecute the decision whether to go ahead is for the Secretary of Justice alone. It is for this reason that the Secretary of Justice bears a heavy burden and must not only be independent but must be seen to be independent.

This apportionment of legal responsibilities in this way is a feature of the English legal system which the drafters of the Basic Law adopted.

It has its origins in the struggles between the Crown and Parliament in the seventeenth and early eighteenth centuries. At the end of this time, Parliament came out the winner, and the Crown submitted to unwritten constitutional constraints and had to suffer to legislative incursions on personal prerogative powers.

These conventions exist to this day and only occasionally hit the headlines, as happened recently when there was litigation about the Queen's decision-on the advice of her Prime Minister-to prorogue Parliament at a critical time in the national debate about Brexit.

When the scales began to tip decisively in Parliament's favour in the middle of the seventeenth century, the twin kingdoms of Scotland and England-there was no Irish kingdom then-had to deal with an amnesty problem. It is educational to see how they dealt with the matter.

The Civil War lasted from 1642 to 1651. Very simply, the cause of the strife was Parliament's resentment of King Charles I ruling the kingdoms directly without Parliament's consent or input. This included suspending Parliament and bypassing existing laws. There was a bloody war which Parliament won. King Charles was captured, tried and executed. Parliament selected a successful wartime general, Oliver Cromwell, to govern as 'Lord Protector'-a nice name for a dictator-which he did until his death in 1659.

For reasons that need not trouble us, when Cromwell died many people wanted a return to monarchical rule. King Charles I's son, also a Charles, agreed to return and promised to rule with Parliament, and not despite it. Charles returned in 1660 to assume the throne.

The big problem on Charles II's return was to paper over deep constitutional fissures. Many seeking his return had been loyal royalists, but very many others had fought against his father. These former enemies had only come around to the restoration of the monarchy late in the day out of a sense of pragmatism, not enthusiasm. How was the new King to square open treason against his father with the fact that the overall national mood was to let bygones be bygones?

One of the legal principles fought over in the Civil War was that the King could not suspend laws or apply them selectively. Nearly thirty years after Charles II returned to his thrones in England and Scotland, it was put into writing in the Bill of Rights Act 1689. This was after Charles' brother, James II, had tried to turn the clock back to his executed father's days and was kicked off the throne for trying.

"That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal."

If Charles II could not suspend the laws of Treason, how was he to bring on board the men who had committed the offence but whom he needed to help to run the two kingdoms smoothly?

The solution was an amnesty given under the authority of Parliament which was the supreme source of law in the land.

The short title of the Act was "An Act of Free and General Pardon Indemnity and Oblivion." (The word 'amnesty' in the sense a forgetting of past crimes had only entered the language in the late sixteenth century and was not in general use in 1660.) The Act ran to forty-nine sections. It described with a high degree of precision those who were to get the benefit of the amnesty and those who were left in the cold.

The idea was to grant a general pardon to everyone who had borne arms against the late King or who had treasonably worked against his cause. There were certain classes of persons who did not benefit from the Act. Predictably, the seventeenth century's ever-present enemies of the State were excluded: Roman Catholic Priests and Jesuits. People who had stolen from the late King and his family were excluded too along with those of the late King's servants who had dealt with foreign powers treacherously.

The most notorious section of the Act was section 34. This section listed the names of the men who had sat in the ad hoc court in Westminster Hall in 1649 and had signed the warrant for the execution of Charles I. These regicides, in the words of the Act, were

'....persons for their execrable Treason in sentencing to death, or signing the Instrument for the horrid Murder, or being instrumentall in taking away the pretious Life of our late Soveraigne Lord Charles the first of glorious memory are left to be proceeded against as Traitors to his late Majesty according to the Lawes of England and are out of this present Act wholly excepted and foreprized.

The new regime hunted down the regicides still alive. Some were abroad, but British agents seized and brought them back as outlaws who need not be tried because they had fled justice and could be executed upon the court being satisfied only about their identity.

Regicides found at home were tried and then executed horribly. They were disemboweled when only half-hanged and then cut into quarters for exhibition around the city. Dead regicides did not escape. They were posthumously executed by being dug up from their graves and hanged in chains until the remains rotted away. (The corpse of Oliver Cromwell got this treatment. It is ironic that his statue now stands outside Parliament, just a short distance from where he sat in judgment on King Charles I.)

When the bloodletting had ended, the new King's subjects were encouraged not to talk about the past. One provision of the 1660 Act made it an offence to 'presume malitiously to call or alledge of, or object against any other person or persons any name or names, or other words of reproach any way tending to revive the memory of the late Differences or the occasions thereof.' This prohibition on reviving the past to annoy and upset others was to last for three years after the Act became law.

The Act succeeded by and large in restoring constitutional equilibrium. It failed to prevent James II from trying to go back to the bad old ways. But, as noted above, he lost his throne, and a safe and reliable Protestant monarchy was brought in from Germany twenty-five years later in 1714 when the Civil War was a distant memory.

I am not suggesting that the Chief Executive should look to the 1660 Act as a model to bring about an enforced harmony. She knows that turning to legislation which is only just shy of being one hundred years old-the Emergency Regulations Ordinance-is problematic. There are more recent enactments which deal with amnesties in a way that is appropriate for modern society.

There would be the problem of drawing a line to separate those who benefited from an amnesty and those who did not. Forgiving and forgetting have their limits. Disemboweling hardline protesters excluded from a statutory amnesty might satisfy those in our community who are not in a mood to forgive and forget though. Still, I can tell the Chief Executive for free that there would be serious human rights issues with such a course of action.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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