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

See also

Martin Lee’s op-ed This may be China’s worst assault yet on the rule of law in Hong Kong

Albert Chan’s Commentary on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2009 (“the Bill”)

In Pictures: 130,000 protest looming China extradition law, say organisers, after Hong Kong jails Umbrella Movement leaders

The International Chamber of Commerce Hong Kong

Brian Fong’s Hong Kong and the US-China New Cold War: Will Hong Kong be a “Free World outpost” or a bastion for “Red China”?

Hong Kong’s Proposed Extradition Bill Could Extend Beijing’s Coercive Reach: Risks for the United States

 

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