If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process
- Democracies across the world look at China’s judicial practices and decline extradition agreements with it
- If Beijing wants such an agreement with Hong Kong, it should deliver the judicial reforms it promised long ago
The UK, the US, Canada, New Zealand and other common law democracies have never even signed such an agreement.
This comes as no surprise to Hong Kong, which knows the Chinese mainland and its legal system better than other jurisdictions do. Even 22 years after its return to the motherland, the special administrative region (SAR) has made no extradition-type agreement with the central people’s government.
The police, more powerful than prosecutors and judges, dominate China’s criminal justice officialdom, and all three departments operate subject to the dictates of the Communist Party political-legal committee and the new National Supervision Commission that control them. A single party leader’s brief instruction can determine guilt or innocence, the duration of a sentence or even the death penalty.
In my own experience practising law relating to China for over 20 years, I often encountered situations where powerful local interests procured police cooperation in detaining and charging business personnel, foreign as well as Chinese, to compel hapless detainees to surrender their property or suffer serious punishment. Key performance indicators also drive prosecutors and judges to fear the damage that not-guilty verdicts will do to their careers.
In these circumstances, is it any wonder that independent, democratic and knowledgeable foreign governments and legal experts resist extradition agreements with Beijing? Why, then, should Hong Kong succumb to its demand for legislation authorising extradition?
Beijing need only file an extradition request claiming that the person sought is suspected of committing bribery, for example, and an affidavit alleging the existence of facts that, on their face, appear to contain the elements of the crime. Hong Kong courts will not be allowed to hold a trial to determine the truth of those “facts”. That will be the task of China’s party-controlled courts, which lack the procedural protections Hong Kong people take for granted.
Hong Kong courts will only confirm the legal formalities, including whether prescribed procedures have been followed, whether the SAR also punishes bribery (it does), whether bribery falls within the nine offences excepted from extradition (it does not), and whether the bribery alleged should be deemed a political offence and therefore excluded from extradition.
Beijing may seek to punish Americans and others for alleged violations of Chinese law while even outside China. At least Huawei’s chief financial officer, if extradited, will be tried by an American judicial system that, while flawed, nevertheless merits international confidence. This cannot be said of Chinese justice, and many American business personnel, scholars, human rights activists and others involved with China may avoid Hong Kong if the amendment passes.
The most one might hope for is that China’s leaders, who have recently shown a willingness to engage in judicial institutional innovations, might establish a special court, ostensibly free of party controls and other distorting influences, that would actually provide extradited people with the fair trial that Xi has repeatedly promised but failed to deliver to the Chinese people. To assuage understandable international scepticism, the court should invite the participation of distinguished foreign judges, as Hong Kong’s Court of Final Appeal does.
Jerome A. Cohen is a law professor at New York University, faculty director of its US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations