The governments of Hong Kong and Macau are in talks on establishing a bilateral extradition agreement. Hong Kong Secretary of Justice Rimsky Yuen and his Macau counterpart Sonia Chan have kept their mouths shut as to the details of the negotiations and of the shape any possible agreement may take. It was not until an interview in mid-July did Sonia Chan hinted that the Hong Kong-Macau agreement might not be compatible with some principles of international extradition. Sonia Chan’s abstract comment suggested – as I interpret it – that the devil may well be in the details.
On any of the following grounds an extradition request should be refused, at least, in accordance with the principles set forth in Macau’s existing law on international extradition.
1. Double criminality
“Double criminality” refers to the principle that in both the requesting and requested states an act for which extradition is sought must constitute a crime punishable by some minimum penalty. Therefore if an act is not publishable under law in Macau, Macau shall not extradite the person concerned to another state.
2. Jurisdiction over their own citizens
A state may refuse the extradition of its own citizens to another state. Macau law prohibits the extradition of Macau and Chinese citizens to other states, and the Penal Code of Macau has established its jurisdiction over crimes committed by or against citizens of Macau. Macau citizens can therefore be tried in Macau for their acts wherever these acts are committed.
3. Forms of punishment
A state may turn down an extradition request should there be a possibility that the defendant will be subject to punishment that the requested state does not administer. In Macau the most severe form of punishment of legal sentences is 30 years imprisonment. Macau law also expressly prohibits the extradition of persons to states where they face life / indefinite imprisonment or capital punishment.
In light of Sonia Chan’s “candid revelation”, the obscurity of the agreement under negotiation concerns me, when it comes to the negligence of principles usually observed in international extradition agreements.
I have discussed in a previous piece how the Law Safeguarding National Security, passed in early 2009 by virtue of Article 23 of Macau’s Basic Law, has not unleashed the full potential of Article 23. However, I am concerned that its provisions on “theft of state secrets”, which utterly submits the authority of classifying “state secrets” to the Chinese government, may be abused as a means to suppress free speech, given the Chinese government’s notorious history of arbitrarily declaring a piece of information as a “state secret.”
I cannot help but imagine a scenario where one day a Hong Kong citizen may be extradited to Macau to stand trial in camera – meaning in private – for “exposing a state secret”. This could happen if the principles of double criminality and jurisdiction over own citizens are not observed. Such an extradition agreement has the potential to create a loophole of application of Macau law in Hong Kong and vice versa.
Likewise, if the principles of forms of punishment and jurisdiction over own citizens are not observed, a Macau citizens may be extradited to Hong Kong to serve a life sentence – a form of punishment illegal in Macau.
I understand that tycoon Joseph Lau Luen-hung who was sentenced to five years in jail by a Macau court for bribing Ao Man Long, a former principal official of Macau, is now free in Hong Kong. However, given the increase in the use of criminal procedures against activists in Hong Kong and Macau, the possibility of abuse should not be underestimated. At this point, we have no idea which principles are going to be applicable to the Hong Kong-Macau agreement on extradition.
The Hong Kong and Macau governments should come clean with the public and openly address these concerns as soon as possible. The people of the two cities must demand that their rights are safeguarded before the agreement is finalised.