Background: Extradition Law in Hong Kong

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Carrie Lam survived the first motion of no-confidence against her with the backing of the pro-Beijing majority in the legislature on 29 May. Democratic Party legislator Andrew Wan who moved the motion claimed that Lam “blatantly lied” about the extradition bill and misled the public and the international community, as Lam claimed that colonial officials did not deliberately exclude China from extradition laws ahead of the 1997 handover.

Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019

The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (逃犯及刑事事宜相互法律協助法例 ( 修訂 ) 條例草案) is a proposed bill regarding extradition to amend the Fugitive Offenders Ordinance in relation to special surrender arrangements and the Mutual Legal Assistance in Criminal Matters Ordinance so that arrangements for mutual legal assistance made between Hong Kong and any place outside Hong Kong.

The bill was proposed by the Hong Kong government in February 2019 to request for surrender of a Hong Kong suspect in a homicide case in Taiwan. The government proposed to establish a mechanism for transfers of fugitives not only for Taiwan, but also for Mainland China and Macau that are not covered in the existing laws.

The introduction of the bill caused the legal profession, journalist organisations and business groups, and foreign governments to fear the erosion of Hong Kong’s legal framework and its business climate. They were concerned about heightened risk that individuals, including foreign nationals passing through the city, could be sent for trial to mainland China, where courts are under the political control.

The key provisions of the bill are as follows:

  1. To differentiate case-based surrender arrangements (to be defined as “special surrender arrangements” in the proposal) from general long-term surrender arrangements;
  2. To stipulate that special surrender arrangements will be applicable to Hong Kong and any place outside Hong Kong, and they will only be considered if there are no applicable long-term surrender arrangements;
  3. To specify that special surrender arrangements will cover 37 of the 46 items of offences based on their existing description in Schedule 1 of the FOO, and the offences are punishable with imprisonment for more than three years and triable on indictment in Hong Kong. A total of nine items of offences will not be dealt with under the special surrender arrangements;
  4. To specify that the procedures in the FOO will apply in relation to special surrender arrangements (except that an alternative mechanism for activating the surrender procedures by a certificate issued by the Chief Executive is provided), which may be subject to further limitations on the circumstances in which the person may be surrendered as specified in the arrangements;
  5. To provide that 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. Such activation does not mean that the fugitive will definitely be surrendered as the request must go through all statutory procedures, including the issuance of an authority to proceed by the Chief Executive, the committal hearing by the court and the eventual making of the surrender order by the Chief Executive. Other procedural safeguards, such as application for habeas corpus, application for discharge in case of delay, and judicial review of the Chief Executive’s decision, as provided under the FOO will remain unchanged;

Opposition expressed fears about the legislation that the city would open itself up to the long arm of mainland Chinese law and that people from Hong Kong could fall victim to a different legal system. It therefore urged the government to establish an extradition arrangement with Taiwan only.

The Hong Kong Bar Association released a statement expressed its reservation over the bill, saying that the restriction against any surrender arrangements with mainland China was not a “loophole”, but 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. The association also raised concern over the accountability of the Chief Executive becoming the only arbitrer of whether a special arrangement is to be concluded with a requesting jurisdiction without negative vetting by the Legislative Council or expanding the role of the courts in vetting extradition requests.

Three human rights groups, the Amnesty International, Hong Kong Human Rights Monitor, and Human Rights Watch opposed the bill, warning the extradition proposal could be used as a tool to intimidate critics of the Hong Kong or Chinese governments, peaceful activists, human rights defenders and could further expose those extradited to risks of torture or ill-treatment.

More than 23,000 students, alumni and teachers from all public universities and one in seven secondary schools in Hong Kong, including St. Francis’ Canossian College which Carrie Lam attended, also launched online petitions against the extradition bill in a snowballing campaign.

Edited by Staff
Source: Wiki

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