China may be overstepping Hong Kong’s rule of law and there’s historical proof of that

A protestor in protective gear looks out from between the barricading umbrellas to the line of police officers on Harcourt Road, Wan Chai.

First of all, I’m no stranger to a city that has its fair share of prejudices in how they’ve been treating minority groups living on the margins of society as non-Chinese, brown residents of Hong Kong.

But that doesn’t mean they are any less impacted by the atrocities of the border-sharing mainland that has one of the world’s harshest administrations.

Witnessing the millions, old and young, marching to salvage Hong Kong from the grip of China shook the world. Double the devotion and commitment to avoid letting major decisions fall into totalitarian hands is a fight that hasn’t gone in vain.

That is as unifying as it can get after years of disenfranchisement the non-Chinese body politic has faced during national debates.

To add to the conversation of the mass protest, there’s a lot that hasn’t been crunched in simple terms for people, not to mention an information deficit of the any background on how it all came to this point for the Chinese Communist Party to decide on what to do with the fate of criminal law in Hong Kong.

A protestor with dual Canadian-Hong Kong citizenship blocks the police barricade from moving forward with teargas strikes.

Here’s what triggered the debate of the necessity to save Hong Kong from the People’s Republic of China’s encroaching actions by wielding the laws as the weapon: transferring criminals, allegedly finding safe haven in Hong Kong, to China to proceed under the punitive justice system for trial or if convicted, punishment.

Prevailing the public domain and flooding the streets with outcries against it is the word, extradition.

Those unfamiliar with the backstory of extraditing arrangements, here’s a breakdown of what this rather haphazard process dealt with by the Hong Kong Legislative Council is and why is it mind-numbing at best.

It’s a first that the single legislating organ in HK, the Legislative Council, has foregone conclusions on what ought to be done in the interest of the public by first taking time to debate over it. That has certainly not been the case.

For the first time in 90 years, fugitives in Hong Kong will be extradited to China and that is an interesting turn of events since Beijing never found it desirable to do so during the British colonial occupation. Funnily enough, they avoided it so it doesn’t give rise to the humiliating chapter for China when it lost the Second Opium War.

Not that the now-dissolved Chinese Extradition Ordinance is being revived. China is actually enforcing a new mechanism unfounded in the Hong Kong laws, a far cry from the system that takes after the English legislation on an ad-hoc basis.

In other words, the extradition powers are invoked for exceptional circumstances referring to the Taiwan murder case Chief Executive Carrie Lam is in a rush to move forward with for some reason.

Two major extradition acts by the UK passed two generations apart warrant a revisit. One was in 1870 and another in 1989. The difference in the latter had to do with the way extraditable offenses were measured in terms of the severity of punishment in line with human rights treaties.

And just a reminder that the Hong Kong Bill of Rights Ordinance has acceded to several international law provisions that contain human rights safeguards.

In the vein of the 1989 extradition act, Hong Kong never used a dual criminality test to prosecute the accused suspect whose conduct would constitute a crime in both the surrendering and requesting state. Instead, a lenient yardstick pointedly based on the conduct was employed.

Under Section 15 of the Act, unless the requesting state has acceptable records of judicial independence, compliance with human rights laws, and fair trial proceedings, extraditing the accused would be impermissible.

Take the extradition request of Wikileaks founder, Julian Assange for a minute. The UK authorities arrested Assange from the Ecuadorian embassy in London— where he claimed political asylum — on April 11 under the request of the US with which they share an extradition treaty. Charges against him are on a raft of espionage crimes which could put him in a maximum security prison in the US for over 170 years.

WikiLeaks founder Julian Assange sentenced on May 1 in London. (Daniel Leal-Olivas /AFP/Getty Images)

Nils Meltzer, U.N Special Rapporteur on Torture, to his consternation said: “democratic states ganging up to deliberately isolate, demonize, and abuse a single individual for such a long time and with so little regard for human dignity and the rule of law”.

Meltzer cited real human rights violations if more charges were added to the list of national security allegations where he’d be sentenced for life without parole or even the death penalty.

Putting this in perspective of whether extradition could seriously endanger human rights clauses, considering Assange’s “intense psychological trauma” after being forced out of the embassy, a “political offense” is not an extraditable offense also absent in statutory provisions of the UK law. Simultaneously, the UK is obligated to prioritize its domestic laws on their special arrangement rule and zero tolerance for the death penalty.

This case alone is enough to conclude that extradition protections are present for Assange and if the process is greenlit, human rights will be duly compromised, rendering a brutal move of political prosecution on illegal grounds under international law.

In light of the indecisions since the arrest, Home Secretary of the UK, Sajid Javid signed off the extradition request notwithstanding the foreseeable health implications for Assange in the US.

So there’s the ongoing high-profile controversy surrounding Assange’s arrest and then there is indisputable asymmetry of power between Hong Kong and China.

If the UK recanted their extradition law in 2003 to incorporate more human rights assurances where an investigation of torture risks on the requesting jurisdiction is available, would they accept requests from China, a state with an opaque legal system and well-documented reports of abuses of political prisoners?

Top Chinese officials in Hong Kong and China state that fugitives won’t have a reason to escape justice. Over 300 fugitives, according to unverified statements from them, have found a safe haven in this city. Couple that with the Taiwan murder case, it makes for an urgent case for the central government to hurry up with passing the law.

Evidence of a comprehensive debate in LegCo is scant. They took 20 days for public consultation and 60 hours in the initial process.

HKU’s Faculty of Law hosted a public consultation with attorneys, legal scholars and politicians from Hong Kong, the UK and Canada to discuss the extradition bill.

In fact, Margaret Ng, a former member of LegCo said at a panel discussion a day before the protest, that properly enacting laws require genuine and extended observation of comparative jurisdictions and the due consequences of enforcement.

Hong Kong’s existing Fugitive Offenders Ordinance (FOO) possesses no assurances vested in the UK extradition court, to name a common law parallel in the absence of bilateral extradition treaties. China, on the other hand, is not a signatory to the International Covenant on Civil and Political Rights applicable to the Basic Law.

Sweeping powers will be afforded to the Chief Executive and central authority, encumbering the judiciary to fairly adjudicate extradition decisions with respect to, well, China’s abysmal track records.

See, the crux of the problem whittles down to a serious rule of law misalignment.

If this is resolved in an imprudent way in the legislature as it presently shows, this will bring Hong Kong one step down in the international community as a democracy in the shadows of Beijing.