One of the leading global news stories in recent weeks has been the protests in Hong Kong over the proposed extradition bill, which would allow for extradition to mainland China for the first time in almost 90 years.
But how different is the proposed bill to the law in the UK? And what does the popular opposition tell us about what is publicly acceptable in extradition relations?
Hong Kong currently has longstanding extradition agreements with 20 countries, including the UK and the US, but not with mainland China. In fact, it has not extradited anyone to China since the 1930s. The 1889 Chinese Extradition Ordinance gave effect to an article in the 1858 Treaty of Tientsin, which required the surrender of Chinese subjects wanted for crimes in imperial China. The provision fell into disuse, however, as China refused to make requests that it saw as legitimising a treaty it had been forced to sign.
In 1997, when control of the area was handed from the UK to China, extradition to mainland China was legally prohibited.
There has been some dispute as to the historical reason for this prohibition. The current Chief Executive, Carrie Lam, has described this as a “loophole”, but in a statement issued by the Hong Kong Bar Association (‘HKBA’) this was said to be misleading. They say the prohibition was a deliberate decision by the legislature in 1997, in light of the “fundamentally different criminal justice system operating in the Mainland and concerns over the Mainland’s track record on the protection of fundamental rights.”
In response, the Secretary for Security, John Lee, has argued that the reason that China was left out of the 1997 extradition arrangements is because the Hong Kong legislature was still trying to reach a more long-term extradition agreement with China. It is in the persistent absence of such an agreement that the new amendment was introduced in February of this year, so that the extradition of particular individuals to China (and any country with which Hong Kong does not have an agreement) would be decided on a case-by-case basis. As has been widely reported, it was introduced in response to the inability of Hong Kong to extradite the alleged murderer of a pregnant woman to Taiwan, although Taiwan has now said it would not seek the extradition of the suspect if the “politically motivated” extradition law is passed.
Section 4 of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 inserts section 3A into the Fugitives Offenders Ordinance of 1997. The new section would provide for “Special arrangements for surrender of fugitive offenders”, allowing the extradition of a person for whom special arrangements have been agreed with the requesting authority. The Chief Executive would certify that there are such arrangements and that the procedures in the 1997 Ordinance should apply to the extradition of that person to the requesting territory. This new provision would only apply to 37 categories of offences (now omitting nine business crime offences) and the extradition offence would need to be punishable with imprisonment for seven years or more (above the usual 12 months set in the 1997 Ordinance).
It is not unusual for a state to allow extradition on a case-by-case basis, without a treaty with the requesting state. In the UK, section 194 of the Extradition Act 2003 gives the Secretary of State an analogous power to certify that arrangements have been made between the UK and another territory for the extradition of a person to that territory, where the requesting territory is one with which the UK does not have an extradition treaty. In that case, the territory in question is treated as being a ‘category 2’ territory (i.e. one outside the EU with which the UK has a bilateral extradition treaty) for the purposes of that person’s extradition. See, for example, the attempted extradition of four people to Rwanda under section 194 (Brown v Rwanda  EWHC 770 (Admin)).
Such a provision is not suited to recurrent use with a particular State, as it requires a specific agreement for each individual, and there are no long-term agreed safeguards for the treatment of requested persons. But the fear for many in Hong Kong is that by lifting the prohibition on extradition to China, the legislature is not simply allowing for exceptional cases which may be catered for with bespoke agreements, but rather is paving the way for any number of individuals to be extradited to China through systematic use of the ‘special arrangements’ provision.
Opponents also fear that this bill will remove the motivation for the administration to reach a long-term agreement with China, with built-in safeguards for fair trial and rights protections (e.g. HKBA statement at paragraph 13). There is no guarantee that a long-term agreement with another territory would be any more reassuring for a requested person, but it has the advantage of greater certainty for individuals, more extensive public scrutiny on the terms of the agreement, and, ideally, explicit safeguards of a subject’s fundamental rights.
As it is, there is a concern that there are insufficient safeguards in the case-by-case process. For example, the courts have narrow review powers and can only look at whether there is sufficient prima facie evidence to convict the suspect. They are not empowered to examine whether the suspect would receive basic human rights protection (see HKBA’s comparison with the Extradition Act 2003 at paragraphs 18 – 20) .
“The key difference with the UK…is the greater reliance on the discretion of the executive to protect individuals.”
The key difference with the UK – and perhaps the difference between protests and public acceptability – is the greater reliance on the discretion of the executive to protect individuals. This is exacerbated in the delicate geo-political context of Hong Kong, where some of the public may not trust the government to enter into special arrangements with China that include the requisite safeguards, or may not trust the Chief Executive to certify extradition to mainland China only where she can be sure the individual involved is not going to be mistreated. In the UK, there might be concern if section 194 were repeatedly misused by the Secretary of State, but this would be tempered by the built-in consideration of human rights by the judiciary.
The political unrest in Hong Kong is on-going and it is clear that the debate is not over, as recent events show the legislature’s postponement of the bill has not silenced protesters. As we move closer to 2047, the year the ‘one country, two systems’ approach – which promised Hong Kong an independent legal system for fifty years – is set to expire, extradition is likely to continue to be a key battleground in the ideological conflict over what Hong Kong is or should be.
The UK is, for now, free from such concerns. But as extradition arrangements with Europe are set to be redefined after Brexit, future governments may wish to be mindful of the importance of built-in safeguards beyond the exercise of executive discretion.