Limits of Law and Power of Politics

From "Occupying Central" to "Anti-Extradition" in Hong Kong – Limits of Law and Power of Politics Presented by: LIN Feng, Professor of Law, City University of Hong Kong Arrangement of the Lecture - Background - Main Contents of the Extradition Bill - Main Legal Issues relating to the Extradition Bill - The intention of the Extradition Bill - Case-by-Case Extradition versus Long-term Arrangement - Adequacy of Human Rights Safeguards - Positive Contribution of the Extradition Bill - Other Issues - The "Anti-extradition Movement" - A Comparison of the "Anti-extradition Movement" with the "Occupying Central" Movement - Conclusion Background - There is no agreement on surrender of fugitive offenders between Hong Kong and Taiwan. A Hong Kong girl was murdered by her boyfriend (Mr. Chan) in Taiwan in 2018. Then Mr. Chan escaped back to Hong Kong. He could not be surrendered (extradited) to Taiwan for trial. He served his term in prison in Hong Kong (for a much less serious crime charged in HK) and was released in October 2019. That was why the Chief Executive, Carrie Lam, wanted to get amendments to the two relevant Ordinances passed as soon as possible so that Mr. Chan could be surrendered to Taiwan for trial when he was released from prison in HK. - HK Government introduced the Extradition Bill in February 2019; - Purpose: to amend two pieces of relevant local legislation (Fugitive Offenders Ordinance and Mutual Legal Assistance in Criminal Matters Ordinance) to make possible surrender of a fugitive offender on a case-by-case basis - Objective: to fill in a loophole in existing legislation on extradition; - Consultation period: 20 days. Main Contents of the Extradition Bill - Surrender on a case-by-case basis will be applicable between Hong Kong and those jurisdictions with which Hong Kong has not reached an agreement on long- term extradition/surrender of fugitives. - In relation to special surrender arrangements, the scope of the offences covered for a surrender from Hong Kong will be limited to 37 offences punishable by at least 7 years behind bars and only as they are described in the Fugitive Offenders Ordinance and currently apply in relation to surrender arrangements of a general nature. - Documents authenticated in accordance with surrender arrangements that are prescribed arrangements are deemed as duly authenticated. - To lift the geographical restriction under the Mutual Legal Assistance in Criminal Matters Ordinance so that transfers of fugitives will not only be possible for Taiwan but also for Macau and mainland China, which are not covered under existing legislation. - A request for assistance in a criminal matter covered by bilateral arrangements for mutual legal assistance made between Hong Kong and any other jurisdictions that are prescribed arrangements may only be made pursuant to the arrangements. - A certificate issued by or under the authority of the Chief Executive is conclusive evidence of there being special surrender arrangements, such that the certificate will serve as a basis to activate the surrender procedures. - Procedural safeguards for the protection of human rights, such as application for habeas corpus, application for discharge in case of delay, and judicial review of the Chief Executive's decision and so on will remain unchanged. - The case-based co-operation premised on the undertaking of reciprocity will be superseded by the long-term arrangements once the latter have been made and become effective. Main Legal Issues (1): Intention of the Extradition Bill - Report: the Chief Executive received five letters from the family of the victim in Chan's case; - A significant number of Hong Kong residents doubted whether that was the genuine intention; - Suspicion: the HK Government had acted upon instruction from mainland China and the real motive was to remove legal obstacles for surrender of fugitive offenders to mainland China - Reservation of HK and Western countries over human rights protection track record in mainland China concern is understandable if firewall between HK and mainland China be removed. Main Legal Issue (2): Case-by-Case Extradition versus Long-term Arrangement - HK Government: to fill in a loophole in the existing legislation - First issue: whether the inaction constituted a loophole? - HK Bar Association: the restriction against any surrender arrangements with mainland China was intentional instead of being a loophole; - 2nd issue: whether in principle Hong Kong should introduce case-by-case extradition arrangement in addition to long-term extradition arrangements; - Pros: could fill in gaps in existing legislation so that Hong Kong would no longer be a paradise for fugitives; Cross-border crimes could best be countered through crossborder cooperation; rendition of fugitive offenders was an effective deterrent in the global fight against crime; similar legislation existed in England, Canada and some other jurisdictions. - Former DPP: although it was important to respect the rights of suspects, the debate had downplayed the issue of responsibilities of Hong Kong to other jurisdictions in the global combat of crime. - Negotiation of a bilateral extradition agreement takes considerable time. - It is foreseeable, however, that further necessity may arise that HK may request or be asked to extradite a fugitive offender to or from Hong Kong by another jurisdiction with which Hong Kong has not yet entered into a bilateral extradition agreement. - The establishment through legislating an ad hoc case-by-case extradition arrangement would improve Hong Kong's extradition legislation and ensure that extradition would always be possible with any jurisdiction in the world should there be a necessity. - Though it is desirable to establish an ad hoc case-by-case extradition arrangement in Hong Kong, the Hong Kong Government should take an incremental approach in its introduction of such an arrangement and make every effort to win Hong Kong people's confidence. - Hon. Michael Tien's proposal is reasonable: to limit extradition between Hong Kong and mainland China only to mainland fugitive offenders who are currently in Hong Kong. Main Legal Issues (3): Adequacy of Human Rights Safeguards - Core human rights safeguards are already there: "double criminality", right against double jeopardy, right to Habeas corpus, non-extradition for death penalty, nonextradition for political offences, and non-extradition if the fugitive offender, if surrendered, could face a prejudiced trial because of his race, religion, nationality or political opinions; - 1st criticism: the proposed amendment would bypass the supervision of the LegCo and it would be possible to extradite Hong Kong residents or foreigners passing through Hong Kong to mainland China without the LegCo's monitoring of such case-by-case extradition; - Real issue: whether it is essential to have supervision of a legislature over each ad hoc extradition? - The answer depends on whether judicial scrutiny is enough to provide adequate protection; - • If the answer to the above question is yes, the extra layer of scrutiny will serve no meaningful purpose and will only reduce efficiency and may constitute a waste of precious time of the LegCo; - For: local judges would have power to refuse any extradition request under the Extradition Bill; - Against: some judges and practitioners feared that the proposed legislation would "put [the courts] on a collision course with Beijing" because the limited scope of extradition hearings would leave them little room to maneuver, and therefore would be "one of the starkest challenges to Hong Kong's legal system. - What the HK Government needs to do is to assure Hong Kong people that the courts in Hong Kong can operate independently as usual in their supervision over extradition requests; - Next issue: whether certain human rights protection measures should be included in the Extradition Bill? (necessity to compromise even though it may not be necessary to include them in the Bill); - Another issue: major human rights protection measures such as the right against double jeopardy and Habeas corpus are only granted in HK law but not under mainland Chinese law (which is a Communist Party-controlled legal system); - Counter-argument: if Canada and France can have agreement with and extradite fugitives to mainland China, why not HK? - Protection adequate; what's lacking is confidence in both HK's judiciary and particularly Chinese judicial system Main Legal Issues (4): Positive Contribution of the Extradition Bill - The necessity to have a long-term extradition (surrender of fugitives) arrangement with mainland China was realized before 1997; negotiations had been held, but there were stumbling blocks. According to papers submitted to the LegCo, the following issues existed: - How will the principle of double criminality be applied in an arrangement with the Mainland? - How will the principle of non-extradition in death penalty cases be applied? - Non-extradition for political offences is an established general principle. How will "political offence" be defined in surrender arrangements between Hong Kong and the Mainland? - Two main obstacles were: whether the principle of non-extradition in death penalty cases would be applied; and whether non-extradition for political offences should be applied. - No agreement could be reached by either scholars or officials in HK and mainland China. - Under the Extradition Bill, however, both principles have been indirectly incorporated and will be applied to surrender of fugitives between HK and mainland China (through application of the two existing ordinances) had the Bill been adopted. - The public support of three senior Chinese officials in charge of HK affairs of the Extradition Bill makes it extremely difficult, if not impossible, for mainland China to say that it will not recognize the application of those two principles in future long-term extradition arrangement between HK and mainland China. Main Legal Issues (5): Other Issues - Examples of adverse events prior to the introduction of the Bill (after 2014 "Occupying Central" Movement): - NPCSC Interpretation of Article 104 of the Basic Law; - Disqualification of several legislative councilors who failed to take their oath properly; - Refusal to extend employment visa for a British journalist because he insisted on holding a talk by Mr. Andy Chan, the chairman of former Hong Kong National Party; - The ban of operation of Hong Kong National Party. - These events have been interpreted as mainland China's tightening of its control in Hong Kong and limiting freedom enjoyed by Hong Kong people. - The Extradition Bill has been regarded by the pan-democratic camp and many others both overseas and locally as another measure from Beijing. Anti-Extradition Movement - 31 March demonstration: 5,200/12,000 participants; - 28 April demonstration: 23,000/130,000 participants; - Various foreign governments expressed their concerns; - Central Government expressed its support for the amendments; - 30 May 2019: Secretary for Security John Lee rolled out six new measures to limit the scope of extraditable crimes and raise the bar to those punishable by the sentence of three years to seven years or above. - 9 June demonstration: 1.03 million/240,000 participants; - 12 June: protestors blocked the Legislative Council; - 15 June: Chief Executive announced suspension of the amendments; - 16 June: 2 million/338,000 participants; - 9 July: the Chief Executive announced that the Bill was dead; - 21 July: indiscriminate attack on passengers by a gang at Yuen Long railway station (suspicion: police colluded with the gang); - 4 September 2019: CE's announcement to withdraw the Bill: too late to satisfy the protesters; - CE hinted at a TV interview in October 2019 that a possibility to conduct independent inquiry after completion of the inquiry by the Independent Police Complaints Commission (IPCC), and to pardon some protestors after they have been judicial procedures; (not taken seriously) - Government's adoption of "Prohibition on Face Covering Regulation" on 4 October (by exercising its authority under the Emergency Regulations Ordinance); - Thousands of people took to the streets immediately, wearing masks, radicals began rioting across the city; sharp escalation in vandalism and property destruction; - Culmination of violence and vandalism with the protestors occupying the campus of Chinese University of Hong Kong for one week and the campus of Polytechnic University for about half a month in November 2019; - Violent demonstration had become routine practice in different districts in HK until the beginning of 2020;