Monthly Archives: May 2019

The proposed extradition law could open the door to extradition to China

Originally appeared in Monkey Cage, Washington Post, May 11, 2019

By Michael C. Davis

Debate over Hong Kong’s proposed extradition law devolves into a scuffle in the legislative council

This law could open the door to extradition to China, and that’s the problem.
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[source; Globe and Mail; see also HKFP]

Fights broke out Saturday in the Legislative Council of Hong Kong as lawmakers debated an extradition measure that would allow transfer of criminal offenders to face charges in mainland China.

On its face, the proposed amendment to Hong Kong’s Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance would allow ad hoc extradition to any jurisdiction where Hong Kong lacks an extradition agreement, something the government claims that it is routine practice. Hong Kong has mutual extradition agreements with 20 jurisdictions and provides legal assistance to 32 others.

However, local and foreign rights lawyers are concerned that the measure would include extradition to mainland China. Legal expertsspeculate Beijing hopes to open the door to extradite corrupt Chinese officials who flee to Hong Kong, as well as perhaps catching local activists in the dragnet.

The government in arguing for the measure has cited the recent case of Tong-Kai Chan, who fled to Hong Kong after killing his girlfriend in Taiwan over an alleged affair, and could go free if not extradited to Taiwan. But it’s not clear why this one case would justify the drastic overhaul.

The Taiwan Mainland Affairs Counsel, however, has indicated that Taiwan would not accept transfer of Chan to Taiwan under this legislation because of the wider risk of extradition to the mainland for its citizens in Hong Kong.

In a complex legislative maneuver, to ensure the measure passes, the pro-Beijing majority in the Hong Kong council usurped the authority of the pan-democratic member presiding over the bills committee. This maneuver and the pro-establishment effort to ram the bill through set the stage for Saturday’s brawl.

The bill raises a number of concerns:

1. The bill undercuts the protection of Hong Kong’s rule of law 

The “one country, two systems” framework for Hong Kong’s return to China in June 1997 recognized that these two legal systems have a huge gap in protection of human rights and the rule of law. Beijing guaranteed Hong Kong would have a high degree of autonomy — including human rights and rule of law protections that do not exist in Chinese laws. The only mainland laws that apply in Hong Kong are a handful of laws added to Annex III of the Hong Kong Basic Law addressing issues such as national symbols, nationality, diplomacy and sea boundaries.

These legal gaps remain largely in place two decades later, and the two governments thus far have failed to reach an extradition agreement. The mainland system often ignores human rights and the rule of law, and includes a number of laws that restrict basic freedoms. Global rankings for freedom and the rule of law demonstrate the difference: Hong Kong ranked 16 and China 82 out of 116 countries on rule of law, for instance.

The nonpartisan legal adviser to the Legislative Council, a career government servant, has taken the unusual step of openly raising these concerns. In his view, extradition to the mainland should require a special agreement that more clearly addresses Hong Kong concerns with basic freedoms and due process of law.

2. The proposed bill fails to exclude the extradition of Hong Kong residents to mainland China

A prominent member of Beijing’s Basic Law Committee, Professor Albert Chen of the University of Hong Kong, points out that most jurisdictions under extradition agreements typically do not extradite their own citizens. The possibility of extradition to the mainland especially worries many Hong Kong residents.

The extradition proposal has already caused one local resident at risk to flee Hong Kong. In late 2015, bookseller Wing-kee Lam was arrested while visiting neighboring Shenzhen, China. Months later, Chinese officials sent him back to Hong Kong, ostensibly to collect evidence. But Lam then refused to return to the mainland. He recently moved to Taiwan, claiming it would no longer be safe for him in Hong Kong.

3. The Hong Kong government has failed to defend the territory’s autonomy

The government claims that the chief executive would serve as a gatekeeper to review requests for extradition to the mainland. But a Beijing-friendly Election Committee chooses Hong Kong’s chief executive, making the person in this role vulnerable to pressure from Beijing. In 2005, when Beijing disapproved the performance of Hong Kong’s first chief executive after the handover, he effectively had to resign. To many in Hong Kong, the Beijing liaison office in the Western district has undue influence on what goes on in Hong Kong.

The Hong Kong government has argued that it would allow extradition only in cases where the individual’s basic human rights were protected, and the decision would be subject to judicial review. Chen, however, noted that this puts Hong Kong courts “in a difficult and invidious position.” One worry, perhaps, is that the court may come under simultaneous pressure in the same case from both Beijing and the Hong Kong government.

Despite its commitment to defend the autonomy promised under the “one country, two systems” framework, the Hong Kong government has a history of enabling interference from Beijing. In other recent cases, the Hong Kong government has prosecuted protesters, expelled pro-democracy legislators and banned political parties — actions many in Hong Kong see as moves on Beijing’s behalf.

This bill has also generated much international concern. Foreign governments have recognized Hong Kong as a separate territory for customs and trade since 1997, distinct from mainland China. The U.S. provides for such recognition under Hong Kong Policy Act, for instance. The recent U.S. State Department report on human rights in Hong Kong raised concerns about the erosion of basic freedoms.

The US-China Economic and Security Review Commission also weighed in this past week to argue that “The extradition bill could pose significant risk to U.S. national security and economic interests in the territory,” allowing “Beijing to pressure the Hong Kong government to extradite U.S. citizens under false pretenses.” The same Commission in its 2018 report had worried that Beijing interference had endangered autonomy, calling Hong Kong’s distinct trading status into question.

In a recent press interview, the U.S. consul general in Hong Kong suggested that this extradition legislation will only intensify U.S. doubts about the continued viability of Hong Kong’s special status under the Hong Kong Policy Act.

Michael C. Davis is a professor of law and international affairs at Jindal Global University and currently a senior fellow at the Woodrow Wilson International Center for Scholars in Washington, where he is affiliated with the Asia Program and the Kissinger Institute. Formerly a professor at the University of Hong Kong, he has written on Hong Kong and Asia for the Journal of Democracy

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The end of the umbrella movement but the beginning of a new chapter in Hong Kong’s democracy movement

Postscript: The 1-million strong protest on June 9 and the 2-million strong protest on June 17 have proven this observation.

Nine core leaders of Hong Kong’s Umbrella Movement were convicted on April 9 and sentenced on April 24. This last batch of prosecutions is widely seen to mark the end of the city’s largest civic disobedience in history. Yet, the closure of one chapter only leads to the beginning of another chapter in Hong Kong’s long walk to democracy.

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Originally appeared as “There’s a new chapter in Hong Kong’s struggle for democracy and autonomy,” Monkey Cage post, Washington Post, May 2, 2019 (https://www.washingtonpost.com/politics/2019/05/02/theres-new-chapter-hong-kongs-struggle-democracy-autonomy/)

What happened to the Umbrella Movement leaders? And what is Beijing trying to do? By Victoria Tin-bor Hui

On April 9, a Hong Kong district court convicted nine core leaders of the 2014 Umbrella Movement of conspiracy to commit public nuisance. On April 24, the court handed down prison sentences of up to 16 months.

To some in Hong Kong, this batch of prosecutions marks the end of the city’s largest demonstration of civil disobedience. Others see a further chapter opening in Hong Kong’s struggle for freedom and democracy, as new attacks emerge on promises of political autonomy guaranteed in the 1986 Sino-British Joint Declaration and the Basic Law.

Here’s a look at the political fallout since the Umbrella Movement.

1. Who are the “Occupy Nine?”

The accused “Occupy Nine” include the trio who started the “Occupy Central with Love and Peace” movement to demand genuine universal suffrage in choosing Hong Kong’s chief executive: Hong Kong University law professor Benny Yiu-ting Tai, Chinese University sociology professor Kin-man Chan and the Rev. Yiu-ming Chu.

Six others — lawmakers Tanya Chan and Ka-chun Shiu, political leaders Raphael Wong and Wing-tat Lee, and student leaders Sau-yin Cheung and Yiu-wa Chung — joined the center stage when “Occupy Central” morphed into the “Umbrella Movement.”

Foreign correspondents came up with the name when protesters opened yellow umbrellas to shield themselves from police tear gas and pepper spray on Sept. 28, 2014. Protesters then occupied major thoroughfares in Admiralty, Causeway Bay and Mongkok for 79 days, until early December 2014.

Citing “serious” obstruction and the “extensive” duration of the protests, the government charged members of the group with various crimes: conspiracy to cause public nuisance; inciting others to cause public nuisance; and inciting people to incite others to cause public nuisance.

The original trio received 16-month jail terms. Tai and Chan were imprisoned immediately, but Chu’s sentence was suspended for two years, in recognition of his age and his lifetime of public service. Legislator Shiu and activist Wong received eight-month terms and Tanya Chan’s case is on hold, pending treatment for a brain tumor. The others received suspended sentences or community service.

2. The aftermath of the Umbrella Movement

Foreign diplomats and NGOs like Amnesty International voiced concerns related to Hong Kong’s freedoms of speech and assembly. In addition to the “Occupy Nine” sentencing, there have been other examples of measures to erode the rule of law in Hong Kong.

In early April, the Hong Kong government proposed to amend the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance to allow extradition from Hong Kong to mainland China. Critics are worried: China’s Communist Party is above the law, and those arrested in China are often tortured and forced to make televised confessions.

This happened to Wing-kee Lam, one of five Hong Kong booksellers Chinese officials seized in 2015 for selling gossipy books about China’s leaders. In 2016, mainland security officers escorted him back to Hong Kong to retrieve subscribers’ data — and he then refused to return to China. Fearing the pending extradition law, Lam fled to Taiwan on April 26.

In September 2018, the Hong Kong government rolled back a provision of Hong Kong’s Basic Law by ceding to mainland jurisdictionparts of the West Kowloon high-speed railway terminal. Mainland officials later arrested a Hong Kong permanent resident who was in the mainland area of the station, alleging he was involved in a property case in Shenzhen, China.

Last fall, the Hong Kong government banned the pro-independence Hong Kong National Party. Chief Executive Carrie Lam submitted a report to Beijing when Chinese officials requested details. Many in Hong Kong criticized this move as contradicting the Basic Law promise that Hong Kong would run its own internal affairs. The Hong Kong government also refused to renew the visa of Financial Timesreporter Victor Millet, who had hosted a talk by the party’s founder Andy Chan at the Foreign Correspondents’ Club.

The government also disqualified six pro-democracy legislators who had won seats in the 2016 elections to the Legislative Council (LegCo). They were accused of improper language in their oath of office. To make sure that local judges had no choice but to grant the government’s disqualification requests, Beijing issued a binding interpretation of the Basic Law.

With the disqualifications, LegCo has become a rubber stamp for Lam, the chief executive, to push through any budget requests or legal measures, including the extradition amendments.

3. Hong Kong’s struggle for autonomy will likely continue

Beijing and Hong Kong officials may have hoped to deter further activism with the above measures. Yet the sentencing of university professors and young activists may be backfiring. In the aftermath of the Umbrella Movement, going to jail has become a badge of honor.

When jailed leaders called for a mass demonstration against the extradition law on April 28, 130,000 protesters turned out.

In response to the charges that the “Occupy Nine” incited nuisance, supporters declared on social media and wore T-shirts with the hashtag “I was not incited.” A Chinese University study estimates that 1.2 million people out of a population of 7.2 million participated at various times and in various forms in these protests — it would be a high order to incite that many people. Indeed, journalism scholars Francis L.F. Lee and Joseph M. Chan report that it was the police tear gas that motivated nearly 60 percent of those they surveyed to join the movement.

It’s likely the convicted leaders and their supporters won’t simply give up. In their view, the promise of “one country, two systems” has become “one country, 1.5 systems.” They are fighting for their own future.

The government may have inadvertently forged unity among opposition leaders by putting them in the same courtroom docks. Traditional democrats, the Occupy Central trio, student leaders and radical activists had bitter disagreements during and after the Occupy campaign. Now that they share the same experience of mass arrests, court trials and imprisonment, they have acquired a new sense of common cause.

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When young people and esteemed professors (including the Yale-trained Sociologist Kin-man Chan who is well-known for his work on civil society in China) are handcuffed and imprisoned for preaching nonviolent civil disobedience, the injustices are obvious. In response to the charges that the “Occupy Nine” incited nuisance, supporters declare that “I was not incited to occupy.”

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Activists believe that history will absolve them. This sentiment is reflected in the banners that supporters made for the “Occupy Nine.” One banner is adopted from what the early-twentieth century intellectual Duxiu Chen wrote to his friend who was jailed by the then suppressive Nationalist Party: “My conduct has nothing shameful; the way of Heaven will shine” (行無愧怍天道昭昭). The second banner is taken from Tang dynasty poet Du Fu who was defending 4 reformed-minded colleagues: “[Others’ ridicules will not affect how your fame] will flow like rivers for ten thousand generations”  (不廢江河萬古流).

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[source]

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Joshua Wong, another young student leader who has been in and out of jail, decries that the “one country, two systems” model has been diminished to “one country, 1.5 systems.”

It is sometimes argued that all is well in Hong Kong, no less because Beijing has not sent in the tanks to quell dissent. But it is in fact a genius stroke to send in the bullet train rather than the bullet. While the latter is certain to cause alarm, the former has achieved what Hongkongers dub “cooking a frog in warm water.” To Hong Kong people, it is little comfort that the city is still freer than the rest of China when the rule-of-law firewall between China and Hong Kongis breaking down.

 

 

 

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