The 2019 Hong Kong Extradition Bill: Eroding Domestic Autonomy?
Earlier this year in Hong Kong, a series of demonstrations against a government-proposed extradition bill has resurfaced questions of the region’s “high degree of autonomy”  under the People’s Republic of China. Out of a population of seven million people, an estimated two million Hong Kongers participated in the June 2019 demonstration, marking the largest protest in Hong Kong’s history.  The contested bill, the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, would permit the transfer of criminal suspects in Hong Kong to other areas of China, including the region controlled by the People’s Republic of China (PRC).  Despite these momentous protests, Carrie Lam, the Chief Executive of Hong Kong, has not formally withdrawn the bill and the threat of future protests continues to destabilize Hong Kong.
As part of the 1997 handover of Hong Kong from the United Kingdom to the PRC, extradition to mainland China was legally prohibited due to the “fundamentally different criminal system operating in the Mainland and concerns over the Mainland’s track record on the protection of fundamental rights” . According to Hong Kong’s last colonial governor, Chris Patten, China was intentionally excluded from the original legislation regarding extradition with Hong Kong, known as the Fugitive Offenders Ordinance (“FOO”), because the PRC’s legal system was not up to international standards.  Thus, it was especially surprising when the Hong Kong Special Administrative Region (HKSAR) decided to push forward the contentious amendments to the state’s extradition law. 
In the past twenty-two years since the enactment of the FOO, only arbitrary updates to the document have been made despite rapid developments in Hong Kong’s economy, society, and legal system.  The proposed extradition bill is a sudden, broad attempt to reforming extradition processes between Hong Kong and mainland China. Furthermore, compared to past extradition laws around the world, the bill seems to ignore basic human rights and values that similar agreements tend to protect. Indeed, the 2019 extradition bill does not address the full consideration of reliable evidence provided by both countries involved in the extradition, the assurance of individual due process rights, and a recognition of other constitutionally protected rights of the requested person under Hong Kong law.
In order to place the Hong Kong situation in context, it is pertinent to examine contemporary global perspectives on extradition. Soering v. the United Kingdom, a 1989 case in the European Court of Human Rights, has largely shaped modern attitudes towards extradition processes. The case concerned Jens Soering, a German national who faced capital punishment charges in the United States. It was found that the United Kingdom could not extradite Soering to stand trial in the United States because the imposition of the death penalty would violate his rights against “inhuman or degrading punishment”  under the European Convention on Human Rights (ECHR). The Soering decision established a precedent whereby sending states must protect the domestic rights of individuals whose extradition has been requested. The ramifications of Soering also imply that documents such as the Universal Declaration of Human Rights, which has been adopted by all 193 United Nation member states including China, should govern extradition cases. 
In the Soering decision, a British common law principle known as Wednesbury Unreasonableness was used to measure the rationality of an extradition request. The principle, originally set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948), notes that “[a] reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it.”  In an extradition case, the safeguarding principle is applied to determine whether a court’s decision is “within the confines of ‘reasonableness’”  with “the most anxious scrutiny.”  The incorporation of the Wednesbury standard in the Soering decision has exemplified the urgent duty to guarantee a requested individual’s entitlement to due process, including in cases of extradition.
Since Soering, extradition agreements have been constructed with a more hands-on approach based on the presumption that the prosecuting state must exercise fair treatment of extradited individuals. For instance, in 2003, the United Kingdom amended its Extradition Act (c.41) to allow member states to act if they believe an extradition violates an individual’s rights under the ECHR.  A year later, the Model Law on Extradition by the UN Office on Drugs and Crime was established, emphasizing that a sending state has the power to decline extradition if the individual “would not receive the minimum fair trial guarantees in criminal proceedings in the requesting State.”  These provisions to extradition laws recognize the importance of maintaining individual human rights in extradition and ensure that a requested person is guaranteed his or her rights throughout the process.
With the standards of contemporary extradition law in mind, we can begin to examine the controversy in Hong Kong. The proposed bill in Hong Kong would amend the Fugitive Offenders Ordinance, Cap. 503 (“FOO”) to allow for the surrender of individuals wanted in other areas. The amendment would create a new case-based arrangement called “special surrender arrangements,”  which would apply to all jurisdictions which currently lack an agreement with Hong Kong such as Macao, Taiwan, and mainland China. The proposed extradition bill would also amend the Mutual Legal Assistance in Criminal Matters Ordinance Cap. 525 (“MLAO”), which currently allows foreign jurisdictions to ask Hong Kong authorities for help collecting evidence to be used outside the HKSAR. The amendments to the MLAO would remove limitations between surrendering individuals in Hong Kong and the rest of the PRC. Both of these changes mean that, for possibly the first time in 90 years, citizens of Hong Kong could be removed from their homeland to stand trial and be sentenced in the mainland. 
The extradition bill would reduce the power of Hong Kong’s Legislative Council and allow for more decision-making on the PRC’s part. The bill would exclude the Legislative Council from overseeing any processes in countries where Hong Kong does not currently have an extradition pact. Instead, the Chief Executive would lead extradition requests on a case-by-case basis  and would become the sole decision-maker in the special surrender arrangements. This provision is especially concerning in cases between Hong Kong and the PRC because the Chief Executive is chosen semi-democratically from a small pool of candidates elected primarily by Chinese authorities. In addition to the Chief Executive’s newfound powers, the proposed bill also means that the Legal Council of Hong Kong no longer provides negative vetting, legislative scrutiny, or any way to hold the Chief accountable.  Unlike other extradition agreements, Hong Kong courts do not have the explicit power to examine whether a suspect would receive the basic human rights protected by the HKSAR constitution, the Basic Law. These shifts in legislative power under the bill would make it easier for the PRC to target critics, human rights activists, journalists, and anyone attempting to exercise Hong Kong’s constitutionally protected freedoms.
The controversy over the proposed bill is also largely emphasized by Hong Kong’s unstable political climate, sparked by situations like China’s history of controversial prosecutions of foreign citizens. According to many sources, China’s legal system has routinely persecuted political dissidents, many of them whom reside in Hong Kong, by charging them with arbitrary, vague offenses such as “endangering state security” or decades-old driving citations. Incidents such as the Causeway Bay Books disappearances, which concern the disappearances, detention, and purportedly forced confessions of five bookstore owners associated with books critical of the PRC’s government, demonstrate Hong Kong’s failure to address possible violations of its own citizens’ rights.  If the Wednesbury standard was applied in cases regarding the PRC’s arrests of non-citizens, it is likely that the rising incidents of the PRC’s state-sponsored kidnapping  would not be within that confine of reasonability regarding the violation of a prosecuted individual’s rights.
This all being said, the extradition bill has been tabled by Chief Executive Lam, and successful government action towards passing the bill is not likely given the impact of the growing protests. However, even under current law, many critics, such as the Hong Kong Bar Association, have pointed out potential opportunities for the PRC to take advantage of Hong Kong’s limited role in overseeing extradition requests. In Cosby v. Chief Executive of the HKSAR (1999), a case concerning a U.S. citizen in Hong Kong, the opinion of the court describes the FOO as a means to “minimize the circumstances in which either the executive or the courts are required to examine the law of the requesting jurisdiction.”  This implies that even the FOO in its current form grants the requesting state more sway in an extradition case. In addition, the FOO also restricts the defendant’s right to challenge evidence; section 23 of the current legislation states that documents in support of extradition are admitted “without further proof” while evidence that contradicts an allegation can not be used by the defendant.  A sufficient level of autonomy may only exist when lawmakers keep the freedoms of rights of Hong Kong citizens at the forefront when drafting legislation.
On both sides of the spectrum, actions over the extradition bill have erupted into a larger debate over the relationship between Hong Kong and the PRC. For the protesters that turned to the streets, these demonstrations have evolved into a nationwide call for democracy, autonomy, and a more transparent differentiation between the HKSAR and the PRC. On the government’s side, the broad-sweeping bill clearly attempted to do more than affix the small-scale murder case that originally incited the proposal. As a submission by the Law Society suggests, there were many alternative actions, including amending existing legislation that govern prosecutable crimes specifically within Hong Kong, that the HKSAR government could have taken which would have left less room for controversy. 
Despite the PRC’s guarantee to post-handover Hong Kong of proper autonomy and assurance that the rights, freedoms, and laws would remain “basically unchanged,”  the protests demonstrate that citizens are increasingly wary that the PRC is tightening its reins. Given a comparative review of extradition laws across the world, it is evident that the extradition bill’s amendments do not concern the general issues regarding the protection of core rights of Hong Kong citizens in foreign jurisdictions, but actually aims to restrict HKSAR’s involvement in extradition cases. By mitigating the role of Hong Kong’s legislative courts, these rights are actually more at risk than before.
 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (1990), online at https://www.basiclaw.gov.hk/en/basiclawtext/index.html
 Amy Gunia, “A Brief History of Protest in Post-Handover Hong Kong,” Time Magazine (2019), online at https://time.com/5606212/hong-kong-history-mass-demonstrations-protest/
 The Law Society of Hong Kong [Submission] Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (2019), online at https://web.archive.org/web/20190630185814/http://www.hklawsoc.org.hk/pub_c/news/submissions/20190605.pdf
 Hong Kong Bar Association, Observations of the Hong Kong Bar Association (“HKBA”) on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, online at https://www.hkba.org/sites/default/files/HKBA%20Observations%20on%20FOMLACM%20Bill%202019%20%28Final%29.pdf
 Michael F. Martin, “Hong Kong’s Proposed Extradition Law Amendments,” Congressional Research Service (2019), online at https://fas.org/sgp/crs/row/IF11248.pdf)
 Thomas E. Kellogg, “Hong Kong’s Proposed Extradition Law and International Human Rights: Legalized Kidnapping?” Lawfare (2019), online at https://www.lawfareblog.com/hong-kongs-proposed-extradition-law-and-international-human-rights-legalized-kidnapping
 The Law Society of Hong Kong, Submission.
 Lillich, Richard B., "The Soering Case." The American Journal of International Law 85, no. 1 (1991), online at http://www.jstor.org/stable/2203565.
 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
 Soering v. The United Kingdom, 1/1989/161/217 , Council of Europe: European Court of Human Rights, (1989), online at: https://www.refworld.org/cases,ECHR,3ae6b6fec.html [accessed 15 August 2019]
 Kellogg, Hong Kong’s Proposed Extradition Law.
 Model Law on Extradition, United Nations Office on Drugs and Crime, (2004), online at http://docplayer.net/104264929-Model-law-on-extradition-2004.html
 Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (2019), online at https://www.legco.gov.hk/yr18-19/english/bills/b201903291.pdf
 Hong Kong Bar Association, Observations.
 Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill
 Hong Kong Bar Association, Observations.
 James Palmer, “Why is Hong Kong Erupting?” Foreign Policy (2019), online at https://foreignpolicy.com/2019/08/03/why-is-hong-kong-erupting-protests-china-extradition/
 Zach Dorfman, “The Disappeared,” Foreign Policy (2018), online at https://foreignpolicy.com/2018/03/29/the-disappeared-china-renditions-kidnapping/
 The Law Society of Hong Kong, Submission.
 Cap. 503 Fugitive Offenders Ordinance (1997), available online at https://www.elegislation.gov.hk/hk/cap503?pmc=1&m=1&pm=0
 The Law Society of Hong Kong, Submission.
 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China