Extradition bill: Why govt is hesitant on 'fair trial clause'

May 28, 2019 12:26
Hong Kong authorities are said to have questioned the need to add a ‘fair trial clause’ to a fugitives bill, arguing that there is yet to be a universal definition on what exactly would constitute a fair trial. Photo: Bloomberg

As a dispute continues over planned changes to the extradition law, Justice Secretary Teresa Cheng Yeuk-wah said on Sunday during a TV interview that the administration would consider establishing a system of observers to monitor the treatment of transferred fugitives in relation to their rights protection.

However, when asked about a suggestion that clauses be added to the amendment bill that would require jurisdictions to guarantee fair trials for fugitives, Cheng said the government would need more time for discussion.

The administration is believed to be hesitant as it feels adding such clauses to the bill may entail making huge changes to the current Fugitive Offenders Ordinance.

It is understood that the government is worried that such a move could affect the city’s existing surrender agreements with 20 jurisdictions such as the United States, the United Kingdom, Australia, Canada, the Philippines, Indonesia, Sri Lanka, etc.

It is for this reason that the administration has been following the principle of making as little change to the main body of the Fugitive Offenders Ordinance as possible since day 1.

Besides, there is yet to be a universal definition of “fair trials”, and therefore, it is said that the administration will seek further advice from the judiciary on this matter.

Meanwhile, according to government sources, the government has doubts over the necessity of adding a “fair trial” clause to the amendment bill since the existing Fugitive Offenders Ordinance, which is now over 20 years into its enforcement, has already incorporated substantial elements on protecting human rights.

For example, under section 5 of the ordinance, “a person shall not be surrendered to a prescribed place, or committed to or kept in custody for the purposes of such surrender, if it appears to an appropriate authority that the offence in respect of which such surrender is sought is an offence of a political character”.

Section 5 also stipulates that a suspect shouldn’t be extradited if the request for surrender concerned is “in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions”.

The government source also pointed out that although there is currently, to some extent, a common understanding among the international community over the basic requirements of fair trials, there is yet to be a universal set of guidelines on whether it is necessary to impose additional different restrictions in order to meet the requirements.

In fact, the source added, it is not common for jurisdictions to add fair trials for transferred fugitives to the relevant clauses of their bilateral extradition agreements, out of respect for the other nation's judicial system.

As such, it would be rather difficult to ask a Hong Kong court to scrutinize extradition requests made by other jurisdictions in the context of whether they can guarantee fair trials.

Instead, in comparison, it would be relatively more flexible for a local court to apply such a condition to a one-off extradition case.

Nevertheless, at the end of the day, the most urgent task lying before the government right now is to allay the concerns among the citizens of Hong Kong and the governments of the US and Europe about the implications of the proposed law changes.

In order to do that, some pro-establishment lawmakers are in favor of adding a “fair trial” clause to the amendment bill, as well as introducing an observer system.

Yet these suggestions have only got a lukewarm response from the pan-dems and members of the legal sector, who immediately said such measures wouldn’t be very effective.

The reason is that, as they have pointed out, if the public don’t even have complete confidence in the chief executive playing the gatekeeper herself in guaranteeing due process when it comes to enforcing the new extradition law, how could anybody possibly expect the citizens to believe confidently that someone of a lower position (i.e. an observer) can achieve the task of monitoring the cases of extradited suspects?

As a matter of fact, even some in the government have conceded privately that there is not much an independent observer can do when a fugitive has already been surrendered to other jurisdictions to stand trial.

This article appeared in the Hong Kong Economic Journal on May 27

Translation by Alan Lee

[Chinese version 中文版]

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Columnist of Hong Kong Economic Journal.