One Year Ago Today: Hong Kong’s Extradition Bill
The article is part of the 'Hong Kong Anti-extradition Demonstrations: One Year Ago Today' initiative which aims to raise awareness for the movement and also to debunk some myths regarding the movement’s origins and core elements.
The thumbnail picture was taken by photojournalist Peter Wong from Stand News who was highly commended for Best News Photography Collection in the 2020 Taiwan Press Photography Competition.
2019 saw an unprecedented number of protests erupt across every corner of the globe: Hong Kong, India, France, Catalonia, Chile - the list is extensive. These movements share one common characteristic: people want their voices heard and to express their discontent at governments that flatly refuse to listen.
Image Source: The Standard
In Hong Kong, the fuse that sparked city-wide protests was a controversial extradition bill. On June 12th 2019, the bill was scheduled for its second reading in the Legislative Council. Three days prior, 1 million people took to the streets to protest against the bill, only to be met with the government’s willful ignorance. In response, protesters occupied major roads and attempted to break into the legislative council in hopes of preventing the session. Due to the violent clashes that occurred, the date’s abbreviation “612” became symbolic of the movement’s beginning. One year on, it is worth revisiting the rationale, content of the bill that started it all, as well as the reasons for its widespread opposition.
In short, the bill seeks to amend present extradition laws. As a starting point, under international law, no jurisdiction has the obligation to surrender fugitives, though countries often sign extradition treaties to streamline the process of combating cross-border crime. The extradition bill introduced by the Hong Kong government allows special extradition arrangements to be made with places that lack a formal agreement with Hong Kong on a case by case basis.
The bill’s purpose was to fill in a loophole which is rooted in long-standing historical and political tensions. Under the “One Country Two Systems” model, Hong Kong remains a distinct jurisdiction from Mainland China and is able to conclude their own extradition agreements. However, current extradition laws are inapplicable to “any other part of the People’s Republic of China”. In light of cross-strait tensions between the Mainland and Taiwan, the Hong Kong government is politically bound to consider Taiwan as part of the Mainland. Without any legal framework, extradition to Mainland China, Macau and Taiwan was an issue left in limbo which manifested in the case of Chan Tong-Kai. Chan is a Hong Kong resident who murdered his girlfriend in Taiwan during 2018 and subsequently escaped back to Hong Kong. However, Chan could not be surrendered to Taiwan. As the crime was committed in Taiwan, Hong Kong was unable to charge him with murder either. Instead, Chan was imprisoned for money laundering offences for using his girlfriend’s ATM card and was due for release in October 2019. In February, the government brought the bill to light and pushed strongly for its passage before Chan’s release so he could be surrendered to Taiwan.
Image Source: EIAS
If the bill was legislated, the suspect will be surrendered if the Hong Kong courts are satisfied that all conditions are met. The key conditions include:
The alleged offence is one of the 37 listed applicable offences
The alleged offence is liable to imprisonment for 7 years or more in both Hong Kong and the requesting jurisdiction
The evidence adduced is, on its face, sufficient to prove the alleged offence was committed by the suspect (Prima facie evidence)
The prosecution is not based on the suspect’s religion, race, nationality or political views
In practice, while the suspect may defend his case in front of Hong Kong’s courts, the defence available to them is limited. The proceedings in Hong Kong are only for determining whether the conditions of extradition are satisfied, rather than an ordinary trial. Therefore, the suspect’s defence is limited to issues of compliance, and any evidence adduced cannot be disputed until the suspect is on trial in the requesting place. Considering that the conditions do not impose a high standard of review by the Hong Kong courts, a request to surrender is very likely to succeed. Professor Albert Chen argues the bill leaves much of the decision to the discretion of the Chief Executive. In his analysis of other countries’ extradition arrangements without a treaty, he observed such arrangements are often very narrowly defined and confined to exceptional circumstances. He suggests the government’s bill does not fulfil this requirement and may operate as a “regular extradition arrangement” between Hong Kong and Mainland China, threatening Hong Kong’s judicial independence.
Image Source: SCMP
Although prosecutions of a political nature are prohibited, many fear mainland authorities could procure extraditions for a nominal non-political offence, despite underlying political reasons. Effectively, anyone considered hostile to Beijing’s ideology and policies may be vulnerable to prosecution, giving way to cross-border law enforcement and undermining the “One Country Two Systems” model. Concerns with this developed as early as 2015, where five owners of a bookstore selling books banned in China seemingly disappeared into thin air - only to reappear under custody in the Mainland. In particular, one of the bookstore’s shareholders Gui Minhai was alleged to have surrendered himself to Chinese authorities for a traffic accident back in 2003. His status ever since remained uncertain until earlier this year it was confirmed he was sentenced to 10 years imprisonment for a political crime - illegally providing intelligence overseas. This incident revealed China’s increasingly severe attitudes towards suppressing political opposition in Hong Kong. It is quite reasonable for people to fear that the extradition bill provides a basis for mainland authorities to legally conduct prosecutions of a similar nature.
Another contentious point regarding the extradition bill is with the lack of safeguards after the transfer, particularly in relation to China’s legal system. According to the UN Model Treaty on Extradition, extradition should be refused if the suspect may be subject to “torture or cruel, inhuman or degrading treatment”, or if they would not receive minimum guarantees to a fair and public hearing by an independent, impartial court. However, these elements were not guaranteed in the bill by the government, since these guarantees would supposedly “limit the circumstances in which the person may be surrendered”. At the core of the matter, it is unsettling that individuals in Hong Kong may face unfair legal proceedings in a country where judicial independence is not constitutionally protected. The impartiality of the Chinese is at question due to the fact it is directly accountable to the National People’s Congress – the countries’ ultimate legislative body. Instead, the judiciary is considered a mere extension of executive power, as shown through President Xi’s explicit rejection of the separation of powers and judicial independence. Since the deciding of cases are heavily overshadowed by the Communist party’s objective of maintaining socio-political stability, it is unsurprising but nevertheless alarming that China’s conviction rate is above 99%. A commentator for the official newspaper ‘People’s Court Daily’ acknowledged that at its present state, there is a need for reform regarding the courts’ inclination to convict. If there is already significant pressure on the courts to convict the suspect in non-political criminal cases, it would be absurd to believe the pressure will be any less in a politically sensitive case.
Conversely, it is arguable that Hong Kong’s Chief Executive would be conferred with the discretion to make the final decision. They may choose to refuse a surrender request on the basis that the suspect may face the death penalty, an unfair trial, or even torture in the requesting place. However, as Albert Chen rightly points out, this safeguard is effectively fictional since the Chief Executive will almost certainly never refuse an extradition request from Beijing. The bill, therefore, instils the risk of being extradited and tried unfairly for political dissent, putting Hong Kong’s freedom of expression in peril.
Image Source: DW/Xinhua
Despite the bill’s withdrawal over half a year ago, protests in Hong Kong have not ceased. The bill was indicative of the wider flaws in Hong Kong’s democracy, in that the government’s ignorance and detachment from public opinion was reflected in its introduction and subsequent handling of the bill. Furthermore, the deep-rooted, fundamental distrust of the Chinese government shared by many Hong Kongers was exacerbated. Many worried that the Hong Kong government was covertly instructed by the Central Government to legislate this bill, as part of its objective to consolidate its grip over the city. The bill marked yet another incursion into the “one country, two systems” principle which forms the basis of Hong Kong’s autonomy and civil liberties. It is only natural for people to stand up when their core values are under immense threat.
Note that opinions expressed in the article above do not represent the overall stance of Asiatic Affairs, Students' Union UCL or University College London. If you have read something you would like to respond to, please get in touch with uclasiaticaffairs@gmail.com.
Editors' Note: As a blanket disclaimer for the entire ‘Hong Kong Anti-Extradition Demonstrations: One Year Ago Today’ initiative, we will not be disclosing the identities of any of the contributors to the initiative. We thank everyone who has submitted a piece of their own work and we apologise for not being able to openly accredit you for your contributions.