Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international human rights obligations

On the first day of July, Hong Kong celebrates Establishment Day, which commemorates the 1997 transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China. Establishment Day for Hongkongers is customarily accompanied by political protests. The widely reported 2019 protests are the direct result of a proposed amendment to the Fugitive Offenders Ordinance (‘FOO’). The proposed amendment, if passed, would open up the possibility of extradition to mainland China.  Although the proposed amendment was declared “dead” by Hong Kong’s Chief Executive, Carrie Lam, there is real possibility that, at one point or another, the bill will be reincarnated since under Hong Kong law a bill can be suspended or withdrawn and it is not clear that the declaration declaring it dead does either of these. As a result, people have kept pouring into the streets calling for Carrie Lam to step down, making the issue of continuing relevance.

One major point of contention of the proposal concerns the protection of human rights of those subject to transfer to China. NGOs such as Amnesty International and Human Rights Watch point out China’s deplorable human rights protection. While the PRC’s poor human rights track record has been documented extensively, in this contribution I wish to clarify how the amendment bill could result in a situation in which Hong Kong incurs responsibility under international human rights law – in particular article 7 ICCPR – when extraditing persons to the PRC. I do so by first discussing the proposed amendments to the FOO. Second, by explaining the international human rights standards that govern extradition and by which Hong Kong is bound (mainly the torture prohibition), I show how the proposal lacks the safeguards necessary to ensure adequate protection against torture and inhuman and degrading treatment.

Proposed amendments to the Fugitive Offenders Ordinance

The government’s justification for tabling the FOO amendment proposal lies in a brutal 2018 murder case in which a Hong Kong man killed his girlfriend while vacationing in Taiwan and fled back to Hong Kong. The Taiwanese authorities, quick to connect the dots, issued an extradition request to Hong Kong, but received no reply. The absence of action on the part Hong Kong can be explained by two alleged loopholes in the FOO: (i) the law’s geographical restriction which does not allow for extradition to Mainland China and other parts of China (i.e., Taiwan and Macau) and (ii) operational requirements which make one-off extradition a practical impossibility. The government seized the brutal killing to push for measures that would plug these loopholes. The 2019 amendment bill addresses these two loopholes by lifting the ban on extradition to China and by providing for special arrangements for surrender of fugitive offenders that make case-based extradition possible.

Understanding how these two amendments will change Hong Kong’s extradition practices demands some insight into the FOO regime. The FOO makes provision for extradition to certain places outside of Hong Kong, but does not in itself provide for a legal basis on account of which a person may be extradited. Surrender of persons takes place under arrangements between states, usually – but not exclusively – in the form of lasting extradition treaties. The content of these arrangements must conform to the FOO; the function of the FOO is therefore to set the ground rules by which all extradition arrangements, so-called “arrangements for the surrender of fugitive offenders”, must abide. The FOO defines such arrangements for the surrender of fugitive offenders as an arrangement applicable to Hong Kong and any other place outside of Hong Kong, other than any other part of the PRC (including Taiwan).

When Hong Kong concludes an extradition arrangement, and wishes to commence the extradition of a requested person, the arrangement must first be published in the Governmental Gazette and be laid on the table of the Legislative Council, which can repeal the order. The entirety of this process normally takes up to 49 days. These requirements make case-based extradition practically impossible. Publication, even in case redaction, would give away some of the particularities of a case and could cause the person in question to flee. The risk of flight is exacerbated by the fact that a person may not be arrested until Legislative Council’s scrutiny period comes to an end.

The 2019 bill intends to plug the loopholes by introducing “special surrender arrangements”. These arrangements do away with the geographic restrictions that currently prevent extradition to the PRC and allows the Chief Executive to bypass the legislative vetting procedure through the issuance of a certificate. The Chief Executive thereby becomes the sole body which decides whether a special arrangement is to be concluded with a particular jurisdiction and what the content of such a special arrangement is to be. The issuance of a certificate however, does not automatically result in extradition, but does allow for the opening of committal proceedings, in which a court considers the case. The magistrate’s function in these proceedings is limited primarily to ensuring that there are no applicable grounds of refusal (e.g., political offence exception, double criminality, specialty, ne bis in idem, death penalty, etc.). If none of the above pose obstacles, the court makes an order for committal after which the Chief Executive can – but is not obligated to – issue an extradition order.

Hong Kong’s human rights obligations and the lack of safeguards in the amended FOO

While the possibility of extradition to the PRC allows Hong Kong to build a joint crime-fighting network with its closest neighbours, it concurrently raises questions with regard to Hong Kong’s obligations under international human rights law – in particular, but not exclusively – the ICCPR.

It is well-established, ever since the ECtHR’s decision in Soering v the United Kingdom, that requested states incur responsibility under human rights law – in particular the prohibition against inhuman and degrading treatment – when they extradite a person to a jurisdiction where substantial grounds have been shown for believing that the person concerned faces a real risk of either being subjected to torture or to inhuman or degrading treatment. The Human Rights Committee in the case of Kindler v Canada followed in the ECtHR’s footsteps and viewed that “if a State Party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s right under the Covenant will be violated in another jurisdiction the State Party itself may be in violation of the Covenant”.

That torture and inhuman and degrading treatment are prevalent in the Chinese legal system is no secret: detention conditions are abysmal, torture is rampant, both pre- and post-trial, and evidence obtained through torture is not, as a rule, excluded as evidence. While the fact that torture and inhuman treatment is rife and systemic is problematic in itself, it does not necessarily result in a violation of Hong Kong’s obligations under the ICCPR: the establishment of such responsibility requires an in concreto assessment of conditions in the PRC against the ICCPR standard.

It is here in particular that I believe that the 2019 FOO amendment fails to provide for sufficient safeguards. As explained above, the extradition procedure provided for in the proposal consists of a dual-track procedure with only a limited role for the court. The committal court can only refuse to make a committal order if one of the listed refusal grounds applies. Under the FOO there is no general human rights ground which allows the court to refuse committal where extradition would result in exposing the individual concerned to torture or inhuman or degrading treatment. Though it is true that a person can make a torture claim, such a claim can only be made vis-à-vis countries other than China. And while the Chief Executive, under the amended bill, may bargain for further restrictions on circumstances in which a person may be extradited beyond those provided for in the FOO, this seems unlikely as the Chief Executive is ultimately accountable to the Central People’s Government. In addition, whereas the Legislative Council normally has the power to vet any extradition agreement ex ante, which includes an audit of another country’s fundamental rights situation, its exclusion under the 2019 amendments make the Chief Executive the only authority which dictates the terms of the agreement.

Conclusion

If, at one point or another, the bill is reanimated it would be prudent, in light of Hong Kong’s international human rights obligations, to reconsider some of the elements of the bill as it stands today. The bill places too much power in the hands of the Chief Executive, which is ultimately accountable to the PRC government, while excluding legislative oversight or offering compensation through effective judicial control. The amendment, if passed in its current state, could result in exposing requested persons to a real risk of being subjected to torture or to inhuman or degrading treatment in China and could, consequently, lead to Hong Kong breaching its obligations under the ICCPR.