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

Jerome A. Cohen

Published: 7:00am, 23 May, 2019

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For many decades, every democratic government in the common law world has successfully resisted efforts by the People’s Republic of China to conclude an extradition treaty. These democracies have refused to commit to forcibly delivering, for trial in China, people whom Beijing claims have violated Chinese criminal law. Australia signed an extradition treaty with Beijing, only to have its parliament reject it in 2017.

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.

That is because the personal experiences of many Hong Kong citizens, and those of many other countries, have shown that even though 70 years have passed since the People’s Republic’s establishment and much relevant legislation has been promulgated, its criminal justice system can still not assure alleged offenders a fair trial.

Activists in Hong Kong protest against the bill to allow extraditions to the Chinese mainland, on April 29. Photo: AFP

Despite the Chinese system’s legendary non-transparency, its failures to meet international standards of due process are well known. Arbitrary, often lengthy, secret and incommunicado detention, widespread existence of torture and frequent denial of the effective help of defence counsel are hallmarks of the process.

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.

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This is true in cases not only of those perceived to be political opponents of the party-state but also those suspected of bribery and related offences in the context of an economy, government and society where corruption is endemic. Even more distorting to the legal system is the impact of guanxi, the network of interpersonal relationships that exercises far more influence over the administration of justice than even politics and corruption.

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?

The argument that the proposed legislative amendment is required to extradite an alleged murderer to Taiwan for trial is specious. That issue can be negotiated without changing arrangements relating to the mainland, and Taiwan does not support the proposed amendment.

Once the amendment goes into effect, it will be easy for mainland authorities to extract from Hong Kong those who have drawn their ire. There will be no further incentive for kidnapping and its costly consequences for social stability and Beijing’s reputation.

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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.

Some of the affidavits filed in support of extradition may well be false. A regime willing to use kidnapping to arrest its prey will not cavil at lying to do so. As too many cases on the mainland – involving foreigners as well as Chinese – attest, long, incommunicado detentions marked by torture often yield false confessions, and the multiple pressures exerted on mainland witnesses and lawyers often produce false testimony.

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Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong. This will lead to more than the reciprocating of Canada’s recent detention of Huawei’s CFO at Vancouver airport for extradition based on alleged violations of American law while in Hong Kong.

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.

Of course, there is a solution to China’s worldwide extradition problem: to realise that, in practice, its criminal justice system violates many international standards. Even if China should unexpectedly ratify the International Covenant on Civil and Political Rights over 20 years after signing it, much more will be required before the world’s major democracies accede to Beijing’s extradition treaty wishes. Given the increasingly repressive direction of the Xi Jinping government, such a profound change in its criminal process is very unlikely.

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

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