On its face, the proposed modification to Hong Kong’s Fugitive Offenders Ordinance and the Mutual Authorized Help in Prison Issues Ordinance would enable advert hoc extradition to any jurisdiction the place Hong Kong lacks an extradition settlement, one thing the federal government claims is routine follow. Hong Kong has mutual extradition agreements with 20 jurisdictions and offers authorized help to 32 others.
Nonetheless, native and international rights legal professionals are involved the measure would come with extradition to mainland China. Authorized specialists speculate Beijing hopes to open the door to extradite corrupt Chinese language officers who flee to Hong Kong, in addition to maybe catch native activists within the dragnet.
In arguing for the measure, the federal government has cited the latest case of Tong-Kai Chan, who fled to Hong Kong after killing his girlfriend in Taiwan over an alleged affair, and will go free if not extradited to Taiwan. But it surely’s not clear why this one case would justify the drastic overhaul.
The Taiwan Mainland Affairs Council, nevertheless, has indicated that Taiwan would not settle for switch of Chan to Taiwan below this laws due to the broader threat of extradition to the mainland for its residents in Hong Kong.
In a posh legislative maneuver, to make sure the measure passes, the pro-Beijing majority within the Hong Kong council usurped the authority of the pan-democratic member presiding over the payments committee. This maneuver and the pro-establishment effort to ram the invoice via set the stage for Saturday’s brawl.
The invoice raises various issues:
1. The invoice undercuts the safety of Hong Kong’s rule of legislation
The “one nation, two methods” framework for Hong Kong’s return to China in June 1997 acknowledged that these two authorized methods have an enormous hole in safety of human rights and the rule of legislation. Beijing assured Hong Kong would have a excessive diploma of autonomy — together with human rights and rule of legislation protections that don’t exist in Chinese language legal guidelines. The one mainland legal guidelines that apply in Hong Kong are a handful of legal guidelines added to Annex III of the Hong Kong Primary Legislation addressing points similar to nationwide symbols, nationality, diplomacy and sea boundaries.
These authorized gaps stay largely in place twenty years later, and the 2 governments up to now have failed to succeed in an extradition settlement. The mainland system typically ignores human rights and the rule of legislation and contains various legal guidelines that limit primary freedoms. World rankings for freedom and the rule of legislation display the distinction: Hong Kong ranked 16 and China 82 out of 116 nations on rule of legislation, as an illustration.
The nonpartisan authorized adviser to Hong Kong’s Legislative Council, a profession authorities servant, has taken the weird step of overtly elevating these issues. In his view, extradition to the mainland ought to require a particular settlement that extra clearly addresses Hong Kong issues with primary freedoms and due technique of legislation.
2. The proposed invoice fails to exclude the extradition of Hong Kong residents to mainland China
A outstanding member of Beijing’s Primary Legislation Committee, professor Albert Chen of the College of Hong Kong, factors out that almost all jurisdictions below extradition agreements usually don’t extradite their very own residents. The opportunity of extradition to the mainland particularly worries many Hong Kong residents.
The extradition proposal has already triggered one native resident in danger to flee Hong Kong. In late 2015, bookseller Wing-Kee Lam was arrested whereas visiting neighboring Shenzhen, China. Months later, Chinese language officers despatched him again to Hong Kong, ostensibly to gather proof. However Lam refused to return to the mainland. He lately moved to Taiwan, claiming it will now not be protected for him in Hong Kong.
3. The Hong Kong authorities has did not defend the territory’s autonomy
The federal government claims that the chief govt would function a gatekeeper to evaluate requests for extradition to the mainland. However the Beijing-friendly Election Committee chooses Hong Kong’s chief govt, making the individual on this position weak to strain from Beijing. In 2005, when Beijing disapproved the efficiency of Hong Kong’s first chief govt after the handover, he successfully needed to resign. To many in Hong Kong, the Beijing liaison workplace within the Western district has undue affect on what goes on in Hong Kong.
The Hong Kong authorities has argued that it will enable extradition solely in circumstances the place the person’s primary human rights have been protected, and the choice can be topic to judicial evaluate. Chen, nevertheless, famous that this places Hong Kong courts “in a troublesome and invidious place.” One fear, maybe, is that the courtroom could come below simultaneous strain in the identical case from Beijing and the Hong Kong authorities.
Regardless of its dedication to defend the autonomy promised below the “one nation, two methods” framework, the Hong Kong authorities has a historical past of enabling interference from Beijing. In different latest circumstances, the Hong Kong authorities has prosecuted protesters, expelled pro-democracy legislators and banned political events — actions many in Hong Kong see as strikes on Beijing’s behalf.
This invoice has additionally generated a lot worldwide concern. International governments have acknowledged Hong Kong as a separate territory for customs and commerce since 1997, distinct from mainland China. The U.S. offers for such recognition below Hong Kong Coverage Act, as an illustration. The latest U.S. State Division report on human rights in Hong Kong raised issues concerning the erosion of primary freedoms.
The US-China Financial and Safety Evaluate Fee additionally weighed in lately to argue that “The extradition invoice may pose important threat to U.S. nationwide safety and financial pursuits within the territory,” permitting “Beijing to strain the Hong Kong authorities to extradite U.S. residents below false pretenses.” The identical Fee in its 2018 report had frightened that Beijing interference had endangered autonomy, calling Hong Kong’s distinct buying and selling standing into query.
In a latest press interview, the U.S. consul basic in Hong Kong steered that this extradition laws will solely intensify U.S. doubts concerning the continued viability of Hong Kong’s particular standing below the Hong Kong Coverage Act.
Michael C. Davis is a professor of legislation and worldwide affairs at Jindal World College and at the moment a senior fellow on the Woodrow Wilson Worldwide Middle for Students in Washington, the place he’s affiliated with the Asia Program and the Kissinger Institute. Previously a professor on the College of Hong Kong, he has written on Hong Kong and Asia for the Journal of Democracy