—— Calls for Re-examination of the Criminal Public Accountability and Independent Judicial-Scrutiny Functions Under Basic Law Article 35(2)

(26 May 2026, Hong Kong)  🔗中文 / 🔗English

The Hong Kong Rule of Law Initiative (HKROLIN) today issued a Legal Analysis Report together with an open letter to the Secretary for Security, noting that the Government’s recently introduced “Special Project” targeting large numbers of individuals arrested during the 2019 Anti-Extradition Amendment Bill incidents, but left unprosecuted for prolonged periods, may have moved beyond the established boundaries of ordinary “rehabilitation arrangements” or concerns relating to the “presumption of innocence,” and may now begin to implicate criminal-law risks arising from the exercise of public power itself.

According to currently available public information, the “Special Project” involves Mainland exchange activities, “positive guidance,” attitude and value-orientation assessments, and other ancillary arrangements potentially linked to prosecutorial outcomes. The Report observes that Hong Kong’s existing diversionary mechanisms — including binding-over orders, the Superintendent’s Discretion Scheme, and other common-law diversionary arrangements — have traditionally been grounded upon established facts, procedural supervision, and clearly defined legal consequences. By contrast, the “Special Project” introduces ancillary conditions under circumstances in which large numbers of individuals have remained in a prolonged state of non-prosecution, and does so through executive-led arrangements whose operational logic may materially diverge from existing criminal-process structures.

The Report further states that where executive authorities, in the absence of facts established through due process, continue to impose sustained institutional pressure upon individuals’ legal status, human-rights protections, and freedom of choice through “positive guidance” and other attached conditions, such arrangements may not only depart from Hong Kong’s existing constitutional and legal framework, but may also begin to enter the realm of:

• Perverting the course of justice
• Misconduct in public office
• Coercion or criminal intimidation
• Other forms of criminal-law evaluation

The Report notes that such forms of institutional deviation have historically received little formal examination within Hong Kong’s existing legal framework, and may represent a profound constitutional issue emerging for the first time under Hong Kong’s present institutional conditions.

The Report also highlights that the judicial avenue protected under Article 35(2) of the Basic Law — concerning “acts of the executive authorities and executive personnel” — carries a latent function of criminal public accountability and independent judicial scrutiny. In circumstances where institutional overlap and structural contradictions may arise between the executive and prosecutorial framework, these constitutional functions require renewed and serious examination in order to ensure that mechanisms of public accountability within Hong Kong’s constitutional order continue to operate effectively.

HKROLIN emphasizes that the Legal Analysis Report and Open Letter do not constitute political commentary, but represent a jurisprudential analysis grounded in Hong Kong’s existing legal system, common-law principles, and statutory framework. The purpose is to clarify institutional boundaries at an early stage and to avoid the risk that continued implementation of such special administrative arrangements may generate serious and potentially irreversible legal and constitutional consequences.

• 🔗 Full Legal Analysis Report: 中文 / English
  
• 🔗 Open Letter to the Secretary for Security: 中文 / English

Hong Kong Rule of Law Initiative (HKROLIN)
Website: hkrolin.org
Email: info@hkrolin.org