The guarantee of a fair trial or any other safeguards will not be written into the controversial Hong Kong extradition bill, top government officials told lawmakers on Friday, while sidestepping questions as to how a politically tricky issue regarding Taiwan would be tackled.
Rather than adding protective clauses when changing the city’s fugitive transfer laws, as critics are demanding, Chief Executive Carrie Lam Cheng Yuet-ngor’s administration is proposing “top-up protections” depending on each case.
Officials said the approach was designed to give the government greater flexibility under the bill, which would allow the transfer of criminal suspects on a case-by-case basis to jurisdictions the city does not have an extradition deal with, including mainland China, Macau and Taiwan. In a move to secure support from the local business community, the government announced on Thursday it would limit the scope of extraditable offences, accept transfer requests only from the highest judicial authorities, and allow more safeguards in future ad hoc extradition documents, such as insisting on open trials.
But officials could not clarify which authority making an extradition request would be deemed acceptable to Hong Kong when dealing with Taiwan.
“We would ask for the request to come from a very senior level; normally it would have to be at the central government level, rather than from a provincial government,” Lam said.
“How it would actually work out with Taiwan authorities, we cannot say at the moment.”
Taiwan’s Mainland Affairs Council said negotiations would have to be conducted with the self-ruled island being accepted as a sovereign entity.
“If the amendment is based on the one-China framework, we will not accept such acts that aim at erasing [Taiwan’s] sovereignty,” the council said in a statement.
Professor Lau Siu-kai, vice-chairman of semi-official think tank the Chinese Association of Hong Kong and Macau Studies, said the best way forward would be to bypass the sensitive issue of Taiwan being considered a part of China.
He suggested a solution acceptable to all sides might lie in finding the appropriate authorities to facilitate the transfer, such that both Hong Kong and Taiwan would be treating each other as “regions”.
In the past, Britain has worked with Taiwan’s Ministry of Justice on extradition requests, because it only views it legally as a separate jurisdiction.
At a Legislative Council security panel meeting on Friday, Secretary for Justice Teresa Cheng Yeuk-wah and Secretary for Security John Lee Ka-chiu said the safeguards in question could not be written into the bill, which is scheduled for a second reading on June 12, before it is put to a vote.
“In handling special rendition requests from elsewhere, the government could draw from a non-exhaustive list of safeguards,” Cheng said.
“That creates flexibility and the government could top up protections, depending on the situation regarding the requesting jurisdiction and the outstanding case.”
Lee said the government’s proposal was only to provide a “minimum guarantee” of protection to the accused wanted abroad.
He was referring to a section of the amendment bill allowing for the government to “further limit the circumstances in which the person may be surrendered”.
Lee said there were at least four fugitives who could not be prosecuted because of the lack of an agreement, which justified the need for the bill.
The prospect of Hongkongers being sent across the border for trial is causing particular concern because of distrust of the mainland’s legal system, and its lack of human rights guarantees.
However, officials have stressed the urgency of passing the bill to allow the transfer of Hongkonger Chan Tong-kai, 20, who is wanted in Taiwan for the murder of his girlfriend.
Chan is behind bars in Hong Kong after being found guilty on related money-laundering charges, but could be released by October, when he would be free to flee the city.
While the bill continues to raise concerns internationally, with Britain and Canada issuing a rare joint statement warning against its negative impact on rights and freedoms, Lam said the worries were rooted in a lack of understanding.
She said her government had already listened to various views in proposing the latest revision of the bill, denying that it was only catering to the business community’s concerns, and called for a rational approach during scrutiny of the amended legislation next month.
But the pro-democracy camp remained unconvinced, saying there was little the government could do if the requesting jurisdiction failed to fulfil any guarantee of providing a fair trial.
“How many more people should take to the streets on June 9, before the government will even consider shelving the bill?” democrat James To Kun-sun said, referring to a planned mass protest.
Senior counsel Ronny Tong Ka-wah, an adviser to Lam, said it was unfortunate that the chief executive had to make concessions.
“This is the political reality. The government had to do this to gain the support of the business sector and if this one-size-fits-all application is what it takes, then this compromise is worth it if it can provide safeguards and get the bill passed,” he said.
The convenor of the Progressive Lawyers Group, Billy Li On-yin, said the concessions were not enough to ease public fears.
Article originally appeared in South China Morning Post on 31 May 2019