Hong Kong’s Fugitive bill
May 27, 2019 | Expert Insights
Hong Kong is an autonomous territory with a separate political and economic system from China. From 1842 to 1941, Hong Kong was formally ruled by the British under a lease that stipulated that Britain would leave the territory in 1997. After 1997, under the One Country, Two Systems principle, Hong Kong exercises its own independent executive, legislative and judiciary powers, only subject to China in foreign affairs and defence. The One Country, Two Systems principle is to be upheld until 2047, after which no specification was made of how much the Chinese government would be involved in Hong Kong’s governance.
Extradition is a legal action where one jurisdiction hands over a person accused or convicted of a crime over to the other. Hong Kong and China have no existing extradition treaty. Under the One Country, Two Systems principle, the territory is promised civic freedoms. Judicial independence is central to this framework. Hong Kong currently has extradition agreements with 20 countries, including the US and the UK.
The Fugitives bill is a recently proposed extradition law that resulted in clashes between pro-government (Mainland Chinese government) and pro-democracy (proponents of Hong Kong’s autonomy) lawmakers. The legislation would allow extraditions from Hong Kong to any jurisdiction around the world, even if they have no extradition agreement with the territory. This law excludes any country with which Hong Kong has a formal extradition agreement.
The bill was introduced after a Hong Kong national, Tong-Kai Chan, admitted to killing his pregnant girlfriend in Taiwan. He is currently in prison in Hong Kong on other charges. Hong Kong officials say the Fugitives bill would have to be passed by July 2019 to ensure Mr Chan does not go free. He is expected to be released by October 2019. However, Taipei has said that it would not request his extradition.
Under the proposed law, an extradition request would be first reviewed by the government, resulting in a recommendation to Hong Kong’s leader, the chief executive. The chief executive can decide whether to proceed or not. Once the decision is made to proceed, the suspect is arrested, and a court decides whether the request is politically motivated and has sufficient evidence. If the court decides to commit the suspect, and appeals are unsuccessful, a final decision is made by the chief executive. Following this decision, another motion can be made in court. If unsuccessful, the suspect would be extradited.
Extradition laws are typically subject to safeguards. Hong Kong’s authorities have stressed that human rights and procedural protections would be kept in place. This includes protection against the death penalty, a restriction on double jeopardy and no extradition of suspects for political offences. Protection from double jeopardy shields the accused from being tried again on similar charges, after a valid acquittal or conviction.
Opposition parties believe that because a Beijing-controlled election committee selects the chief executive, the office would be compelled to support extradition requests made by China. Additionally, according to the Basic Law, which governs Hong Kong, the chief executive is held “accountable” to Beijing. The Hong Kong Bar Association said that courts would have a limited role in reviewing the extradition process, raising concerns that the law allows insufficient safeguards to protect human rights.
The central concern among international players and human rights activists is that China would abuse the law. Hong Kong is one of Asia’s leading centres for business, and its airport is one of the continent’s busiest international aviation hubs. Critics believe that the proposed law would permit Beijing to detain anyone who enters Hong Kong and deport them to China. This is based on distrust in Hong Kong’s ability to act independently from Beijing.
The US-China Economic and Security Review Commission warned that the law would allow Beijing to force Hong Kong to extradite US citizens under “false pretences.” The Commission, which makes policy recommendations to the US government, also said the law could “create significant risks for US national security and economic interests in the territory.”
China argues that there is a need for such a law. Since 1997, China has transferred over 260 suspects to Hong Kong, while none have been sent in the other direction. Chinese officials say that they view the matter as an “internal affair of Hong Kong and a domestic affair of China," thereby oppose external influence regarding the law.
Our assessment is that the extradition law indicates the growing influence of China on Hong Kong’s judiciary, sparking international concern regarding the territory’s ability to continue as a centre for Asian trade, commerce and transportation.
We believe that while the law is unlikely to affect the twenty countries with whom Hong Kong has an extradition deal with, multinational corporations in the territory view the proposed bill as a potential hindrance to their continued operations. We feel that the move is part of a series of efforts by Chinese authorities to bring Hong Kong into a common security architecture, while still adhering to the One Country, Two Systems principle. We estimate that these efforts are likely to continue until 2047 when the current treaty expires.
Image Courtesy - Temppic at English Wikipedia [Public domain]