21 Jun 2019

China’s decades since the Opening and Reform has witnessed ever-increasing people-to-people and business-to-business exchanges among Mainland China, Hong Kong, Macau and Taiwan, gradually breaking historical and political barriers, and generating noticeable prosperity that has benefited all parties.

The Absence of a Judicial Arrangement

These frequent exchanges naturally bring with them cross-border crimes to which different jurisdictions in the four regions find it difficult to uphold justice. The reason for such judicial divisions is complicated, involving the judicial and political factors of China’s central government, respective local governments and former colonial administrations. Legally binding judicial arrangements to different extents have been in place among Mainland China, Macau and Taiwan, leaving a legal loophole in Hong Kong. According to Hong Kong’s current Fugitive Offenders Ordinance that was drafted by the Bills Committee and passed in the Legislative Council in April 1997, judicial immunity to suspects of Hong Kong citizenship and fugitives staying in Hong Kong, are only applicable to Hong Kong and countries outside Hong Kong other than the People’s Republic of China.

Wherever a legal loophole exists, justice might not be upheld. It was against this backdrop that the fuse to the ongoing explosive repercussion in Hong Kong was kindled, first between Hong Kong and Taiwan. In 2018, a Hong Kong youth murdered his pregnant girlfriend and dumped her body in a suitcase in Taiwan. Afterwards, he immediately fled to Hong Kong and has remained immune from the murder charge till now, though he was sentenced to 29 months jail for money-laundering. Following the common territorial principle, Taiwan’s government requested to extradite the fugitive to Taiwan, leading Hong Kong to commence the amendment of the extradition bill, though Taiwan’s current administration later stated that they would not remain cooperative on this matter anymore.

The Amendment of the Extradition Bill

hk extradition protest

Hong Kong citizens protesting against the extradition bill. Photo: Studio Incendio

The Hong Kong government’s response to the Taiwan case was to propose an amendment of the Fugitive Offenders Ordinance, the so-called Extradition Bill, making it conditionally applicable to over 170 jurisdictions across the world other than Hong Kong’s current 20 juridical partners, including the other parts of the People’s Republic of China. The Hong Kong government believed this would fill the existing legal loophole in dealing with the Taiwan case and other cases related to the Mainland and Macau, to prevent Hong Kong from becoming a haven for fugitives. This ambitious approach received widespread repercussions from Hong Kong citizens as covered and circulated by major media, though not much light was shed on over 900,000 citizens expressing support for the amendment. As a result, Hong Kong’s Chief Executive recently announced the suspension of the amendment.

The amendment’s conditional applicability includes the law amendment, which provides a list of extraditable crimes commonly recognised as severe crimes and would only receive sentences for 7 years and above. This list does not include crimes related to freedom of speech, freedom of press, political offences and things alike. Given the booming digital transactions in the Mainland and Hong Kong, it is worrying that digital fraud was not included as well.

Provided that Hong Kong protesters’ concerns are mainly on the Mainland, it was neither the Mainland that initiated the amendment, nor gave the instructions for its issue. However, the Central Government, complying with the Basic Law, indeed stated support for the amendment, in order to fill the legal loophole. As mentioned by China’s former Minister of Public Security during this year’s Two Sessions, over 300 felons remain immune from justice simply because they fled to Hong Kong. Furthermore, it is also noticeable that the still-developing Mainland’s judicature and human rights protection have been progressing substantially, though further efforts need to be made. For example, the “respect and protection of human rights” has been added to the Constitution in 2004, the rule of law has been upgraded as a fundamental principle and a priority since 2007, the intuitional prevention of misjudgement is also in the building and 46 severely misjudged cases have been overruled since 2013. In 2018, the supervisory power was also enhanced by the establishment of the State Committee of Supervisory. Internationally, China has signed bilateral extradition treaties and mutual judicial assistance treaties with 71 countries as of February 2016. Among countries signing extradition treaties, these include France (in effect since 2015), Italy (in effect since 2015), Portugal (in effect since 2009), Spain (in effect since 2007) and South Korea (in effect since 2002).

The Mainland-Hong Kong Relations

What is reflected from Hong Kong’s latest protests is that some Hong Kong citizens remain fundamentally distrustful towards the Mainland. Given Hong Kong’s well-known social security and low crime rates, one might question how many of the massive citizens protesting in the streets would fall in charges of the extraditable 7-year-and-above felonies. While it is not logically correct in believing the amendment would lead to widespread injustice threatening all Hong Kong citizens’ daily life, this is sentimentally understandable, and exactly reflects Hong Kong’s trust deficit towards the Mainland.

This time, it is worth blaming the Hong Kong government for the rush without adequately communicating with the citizens. However, with over 20 years since Hong Kong’s Handover to China in 1997, this trust deficit is particularly worrying, not only because today’s still-developing Mainland has accomplished considerable domestic governance and rule of law, but also because the two sides are almost at the halfway mark of the 50-year transition period.

Hong Kong has contributed enormously to the Mainland in the past decades in terms of disaster aid, economic modernisation and social governance. It is also expected to be inspiring the Mainland’s possible institutional reforms. Therefore, it is worrying if Hong Kong is still perceived as a pioneering example of democracy to view from in Greater China, given that its practice of democracy has been gradually leaning away from peace, rationality, tolerance, accountability, proper use of power, and resulting in social laceration, violence, blood-bleeding and illegal occupation of the Legislative Council. Such unideal practices might even alert the Mainland’s efforts in the path, which would unfortunately lead to even higher trust deficit and even more structural conflicts in future.

The World Politics in Play

The ongoing US-China trade disputes resulting in repercussions from other countries on a variety of issues have been bringing tough challenges to China. It might not be reasonable to simply blame the Hong Kong protests on foreign instigations. However, it is undeniable that certain major media outlets have repeatedly shown unfair coverage on the case, by simply politicising the issue to portray the citizens fighting against a totalitarian regime, and partially casting light on protesters but ignoring supportive voices. One might question whether it is legitimate for these major media to keep blaming and criticising just because one is trying to explore its own model rather than imitating existing democracies. Today’s democracies could lead to the nationwide regrettable referendum in deciding its major foreign policy, elect a leader that further divided a society instead of unifying it, and let the citizens remain in demand of economic dividends and public services without effective delivery. One might also be discouraged if its own citizens could be illegally detained by a democracy during a transit, while seeing no one else protesting for, at least, basic justice.

Hong Kong and the rest of world might be easily dazzled by the Mainland’s developments in its coastal cities and various industries, while forgetting its internationally recognised status as a developing country in which the government is still working hard to deliver economic dividends and public services to millions of remote dwellers. Likewise, Hong Kong and the rest of world may also be focusing on a few cases of violations in the mainland, while forgetting the dynamics that various intuitional reforms for better governance and more comprehensive practice of rule of law are undergoing. It is easy but irresponsible to contain China simply for its unfamiliar system and arbitrarily perceive it as a threat in the recent debate around China’s role in the international liberal order. In fact, China’s history of success benefiting itself and the world have been achieved exactly in the international liberal order by opening and reforming itself. Hence, China has no intentions of turning back as long as the order itself does not exclude or discourage China.

In sum, trust-building between Hong Kong and the Mainland, as well as China and other countries takes time, obviously. However, to start, it is necessary to take just one step forward to listen to, learn more about and bear in mind each other’s concerns, which may prove to be an effective way not only to deal with such complicated cases, but also to live in today’s world of volatility, uncertainty, complexity and ambiguity.

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