Explainer: Hong Kong’s controversial extradition bill

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More than a million people in Hong Kong marched on Sunday against a controversial extradition bill that they fear will erode freedom in the semi-autonomous territory.

People say the new law would put many at risk of extradition to China for political crimes [Tyrone Siu/Reuters]

Hong Kong, a British colony until 1997, was handed over to China under the concept of ‘one country, two systems,’ which accorded political and legal autonomy to the city.

Critics fear the changes will undermine the independence of Hong Kong’s legal system and put Hong Kong citizens and foreign nationals at risk by allowing suspects to be sent to mainland China for trial.

The government has made some revisions to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, as it is officially known, which is due for another debate in the Legislative Council, the territory’s parliament, on Wednesday.

Hong Kong’s Chief Executive Carrie Lam, insists the legislation is necessary to allow Hong Kong to better uphold justice and fulfil its international obligations.

She has denied Beijing played a role in the amendments, which will apply not only to the mainland, but also to Macau, Taiwan, and other countries with which Hong Kong has no formal extradition treaty.

On Tuesday, Lam stressed her administration would press on with the bill despite the size of Sunday’s protest and the threat of more demonstrations, strikes and sit-ins.

Lam has said safeguards have been incorporated into the bill but critics say it would put people at risk of extradition to China for political ‘crimes’.

Al Jazeera explains the controversy:

Why authorities push for the new law?

The Hong Kong administration first proposed the changes in February, citing the case of local man Chan Tong-kai who was wanted for the suspected murder of his pregnant girlfriend while the two were on holiday in Taiwan.

Officials said he could not be sent back to Taiwan for trial because there was no formal extradition agreement between the two territories.

Hong Kong’s extradition arrangements are laid out in the Foreign Offenders Ordinance, which was negotiated in 1997 when the British returned the territory to China.

Hong Kong Chief Executive Carrie Lam walks behind a red barrier tape toward a press conference in Hong Kong Monday, June 10, 2019Taiwan, Macau and the mainland were not included in that agreement in what the Hong Kong Bar Association says was a “deliberate decision” on the part of the legislature given the “fundamentally different criminal justice system operating in the mainland and concerns over the mainland’s track record on the protection of fundamental rights.”

Lam has said a ‘legal loophole’ was preventing the extradition of fugitives like Chan.

Hong Kong Chief Executive insists the legislation is necessary to allow the city to better uphold justice [Vincent Yu/AP Photo]

What are the amendments?

Hong Kong currently has bilateral extradition treaties with 20 countries including the UK, United States and Singapore, but the amendments put forward by the administration are being framed as a way to enable suspected offenders to be sent even to places with which the territory has no formal extradition agreement on a case-by-case or one-off basis.

Under the proposals, the Chief Executive, who is not elected but chosen by an election committee accountable to China, would have the authority to decide any request.

The 70-member assembly or Legco would have no role in the process.

Hong Kong’s courts would have the opportunity to review any decision, but they would not be allowed to enquire into the ‘quality of justice’ the accused would receive or whether they were guilty of the alleged offence.

“The courts will have very little power to reject any extradition request,” said MK Tam, director of Amnesty International Hong Kong.

“It’s not a formal prosecution so you cannot examine the evidence presented by the other side. We all know that if they want to prosecute someone – a human rights defender or activist – actually in mainland China the charges are political in nature but they use other laws to prosecute them, like tax evasion, for example.”

The amendments will cover some 37 offences, including fraud and other white-collar crimes.

The administration announced a series of changes at the end of May that included raising the threshold for an offence to be considered for extradition to at least seven years, and setting a time limit on the date of offences to prevent retrospective requests.

It has also said that only China’s highest court and its top prosecutor would be able to file an extradition request and that the Chief Executive would be allowed to order any jurisdiction requesting extradition to respect presumption of innocence, the right to appeal, open trial and other international judicial norms.

Only the seven year term, would actually be written into the bill.

Hong Kong Extradition Bill ProtestThe administration has also proposed amendments to mutual legal assistance, which would allow outside investigators to request assistance from Hong Kong for criminal cases including search and seizure, and confiscation and restraint orders.

Since mainland China’s police and officials are not allowed to operate in Hong Kong, lawyers say those changes could also have a significant impact.

Protesters marched through Hong Kong on Sunday to show their opposition to the the extradition bill [Kin Cheung/AP Photo]

What are peoples’ concerns?

Hong Kong was returned to China under the concept of ‘one country, two systems.’

Article 4 of the Basic Law, the mini-constitution which governs post-colonial Hong Kong, promises to “safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.”

Michael DeGolyer, who has tracked the territory’s transition to mainland Chinese rule as an academic at the Baptist University of Hong Kong, said people in Hong Kong have been particularly sensitive to issues involving judicial independence, which is seen as guaranteeing a measure of protection from the government on the mainland.

“This bill not only ‘erodes’ those protections; it places protection of those rights it only belatedly recognised as critically important to most Hong Kongers squarely within the hands of unelected bureaucrats who have so far manifested a rather poor record of being able or willing to resist pressure from Beijing,” DeGolyer, who now lives in the US, told Al Jazeera via email.

This could sound the death knell of ‘one country, two systems’

Willy Lam, Chinese University of Hong Kong

Opposition to the amendments comes as China’s President Xi Jinping, who took office in 2012, has increasingly cracked down on dissent.

The apparent kidnap of Hong Kong booksellers critical of the mainland government, the disqualification of pro-democracy lawmakers from office and the jailing of leaders from the Occupy Central movement have fuelled concerns that the amendments could become a tool to be used against political opponents.

The deepening trade war between the US and China has also put the mainland’s judicial system, which is said to have a near 100 percent conviction rate, under the spotlight.

Morgan Ortagus, a spokeswoman for the the US State Department said on Monday that the country was gravely concerned about the proposed amendments and what she described as “the continued erosion” of the ‘one country, two systems’ framework.

The US was concerned the proposals would damage Hong Kong’s business environment “and subject our citizens residing in or visiting Hong Kong to China’s capricious judicial system,” she said.

Two Canadians, Crisis Group director Michael Kovrig and businessman Michael Spavor, were detained in China last December accused of national security offences.

Neither man has been allowed access to lawyers. Their detention followed Canada’s arrest of Huawei chief financial officer Meng Wanzhou on a US extradition request.

In 2019, China ranked 82nd out of 126 countries on the World Justice Project’s Rule of Law Index, coming in 12th out of 15 countries in the Asia Pacific. It scored particularly poorly on “constraints on government power” and “fundamental rights”.

“The consequences of the bill will be dire,” said Willy Lam, an expert on Chinese politics at the Chinese University of Hong Kong.

“For the first time since Hong Kong became part of China almost all the consulates based in Hong Kong have told the Carrie Lam administration not to proceed.

“There is this fear that Hong Kong will lose its international reputation as a free society that is different from China. This could sound the death knell of ‘one country, two systems’.”

China backs the amendments

China has said it has played no part in Hong Kong’s decision to amend its extradition law, but it has indicated it supports the initiative.

“We resolutely oppose wrong words and actions by any foreign forces to interfere in the legislative matters of the Hong Kong SAR,” Geng Shuang, a spokesman at China’s Ministry of Foreign Affairs, said at a regular press briefing on Monday.

Mainland newspapers have also run editorials denouncing Western criticism of the amendments claiming the Hong Kong protesters had been “hoodwinked” by the opposition.

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