HKBA: Justification to amend extradition law misleading

April 03, 2019 15:29
There is no "loophole" that would prevent Hong Kong from entering into any case-based arrangements with other jurisdictions, except the rest of China, the Hong Kong Bar Association said. Photo: HKEJ

The Hong Kong Bar Association (HKBA) said it is misleading for the government to justify its plan to amend the extradition law by claiming the move is aimed at plugging a loophole because there is none.

The Security Bureau was set to table the proposed amendments to the Fugitive Offenders Ordinance (FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance for first reading at the Legislative Council on Wednesday amid fears that the legislation could be used by central authorities against political dissidents.

The lawyers' group said in a statement on Tuesday that under the current FOO regime, “one-off case-based surrender arrangements are potentially available to all jurisdictions with which Hong Kong has no long-term arrangements” except the rest of the People’s Republic of China, the Hong Kong Economic Journal reports.

“There is no ‘loophole’ that would prevent Hong Kong from entering into any case-based arrangements with those jurisdictions, except the rest of [China],” it said.

The association noted that this restriction against any surrender arrangements with the rest of China, “whether under a long-term formal arrangement or case-based arrangements”, is not a “loophole” because it was “a deliberate decision by the legislature when enacting the FOO in 1997 not to provide for the application of the FOO to rendition arrangements with the rest of the PRC, particularly 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 HKBA accused Chief Executive Carrie Lam Cheng Yuet-ngor, Secretary for Security John Lee Ka-chiu and Secretary for Justice Teresa Cheng Yeuk-wah of misleading the public by repeatedly stating that failure to hand over a Hong Kong youth who is being sought by Taiwan prosecutors in connection with a murder on the island about a year ago exposed a loophole in the city's law regarding the surrender of fugitives.

The association pointed out that the government has so far failed to explain why it thinks that circumstances have changed since 1997, in terms of both the human rights record and the criminal justice system in the mainland, to justify a departure from the Legislative Council’s decision to exclude the rest of China from any surrender arrangements.

The HKBA stressed that if the government considers that circumstances in the rest of China have changed such that the “time has come for arrangements to be made to render fugitives”, the proper course is to start negotiations for long-term general arrangements between the two sides and for such arrangements to be considered by the Legco and the public.

But the association is worried that there will no longer be any incentive for such long-term arrangements once the amendments are enacted.

In the statement, the HKBA also opposed the plan to allow the chief executive to be the only person who can initiate case-based “special arrangements” without the need to “go through any negative vetting process” before the Legco.

Without Legco’s negative vetting, there is no way to hold the administration accountable and to make sure that “adequate safeguards are in place” before the extradition process begins, the association said.

As for the government’s announcement on March 26 that nine of the 46 categories of offenses already set out in the FOO, which are mainly related to commercial matters, would not be covered in the amendments, the HKBA said: “The protection that appears to be given is likely to be illusory.”

Furthermore, the HKSAR government has repeatedly asserted that one of the purposes of proposing these amendments is to deal with the murder case in Taiwan, but the HKBA also noted that the Taiwan government has made it clear that no extradition deal with Hong Kong would be signed if it would have implications for the one-China principle.

Since the government cannot assure that the proposed amendments will give a favorable resolution, the association said there is no reason for the government to “rush into these controversial and worrying proposals which undermine the international reputation of Hong Kong”.

Responding to the HKBA's statement, Lee said: “[It] is a fact that I cannot deal with, first of all, at present, the Taiwan murder case because there is no law. The second factor is the surrender on a case basis is full of matters that make it not practicable. So to me, it is a loophole that I must plug.”

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