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Hong Kong’s extradition bill and the rule of law – more complicated than you think

This matter of extradition is getting very complicated, and I am not sure that mixing it up with the rule of law helps.

My last piece on the controversy contained an error. So many of the People’s poodles had said that Lord Patten was being inconsistent by opposing an extradition arrangement with China when the UK already had one, that I assumed this was true. It isn’t, as a kind reader gently pointed out, and the column on HKFP was corrected.

Chris Patten.

Chris Patten. Photo: Tom Grundy/HKFP.

The official Foreign Office line is that individual requests for extradition to China are treated on their merits. There is no extradition treaty.

This brings us to another point, which is that whether there is a treaty or not does not by itself decide whether extradition takes place or not. I am indebted on this topic to a light-hearted piece in The Guardian about which country to take refuge in if you are a wanted person in your home country.

Some countries which have extradition treaties with the UK are in practice very reluctant to extradite anyone, some which do not have a treaty are happy to cooperate. Some have restrictions of their own which take precedence over the extradition treaty.

The best-known example of this, to people of my generation, involved Mr Ronnie Biggs, now deceased. Mr Biggs participated in the Great Train Robbery, was caught, convicted and sentenced to a long prison term.

He escaped from prison and found his way to Brazil, where he married a local lady. This made him a Brazilian citizen and Brazilian law does not permit the extradition of its own citizens. So he lived free in Brazil for many years until he succumbed to home-sickness and shortage of money in 2001 and went home voluntarily.

Ronnie Biggs

Ronnie Biggs. Photo: Wikicommons.

The relevance of this is that it shines an unflattering light on the latest offering from Ronnie Tong, which included the complaint that the UK has extradition treaties with “many countries” with worse scores than China on the Rule of Law Index.

This index is produced by a non-government organisation called the World Justice Project, which is like the World Series – more American than you would think. Every year it produces a league table in which countries are ranked according to their adherence to the rule of law.

The immediate objection to Mr Tong’s argument flows from this. The Rule of Law Index is updated every year. Extradition treaties, on the other hand, go on forever. The proper question is not whether the UK has extradition treaties with countries which score lower than China, but whether it would sign an extradition treaty with a country which, at that time, had a lower score than China, which is quite a different matter.

Still, let us have a look. There are – according to the UN – 195 countries in the world. The UN does not count the Pope or Palestine or for that matter Taiwan. Actually, it doesn’t count Hong Kong either, but the Rule of Law Index does.

statue of justice court

Photo: Court of Final Appeal.

The Rule of Law Index covers 113 countries. Hong Kong comes in at number 16; China at number 82. The index ignores about 80 countries. Some of them are very small (Andorra, San Marino), some may present practical difficulties (Iraq, Libya) and some might be politically tricky (Israel). On behalf of my ancestors, I would like to protest at the omission of Ireland. Switzerland seems an odd one to miss, too.

The strangest thing about the Index, though, is that if you look at the map version it is very obvious that – in the Caribbean – no island is too small, corrupt or rum-sodden to appear in the index, while there is no Pacific island at all between New Zealand and the Americas. Maybe there is the problem of expense.

To get to Mr Tong’s point, according to the British Foreign Office the UK has extradition arrangements with 121 countries. List here. Not all of these involve separate treaties. Importantly for our purposes, former colonies were covered on a blanket basis by the Fugitive Offenders Act 1967.

Of those 121 countries with which the UK has “arrangements”, 19 have lower scores in the Rule of Law Index than China does. Moldova has the same score but comes after China in the alphabet. Tough luck. Of those 19, nine are former colonies whose “arrangement”, dates back to the 1967 Act. There are only 33 countries below China in the index. Whether 10 or 19, qualifies as “many” in this context I leave up to you.

The UK does, though seem to have a preference for countries at the top of the rule of law list. It has arrangements with 27 of the top 30, and number 11 is the UK itself.

Looking at the list of miscreants in the bottom 30, though, inspires some concerns about the index as a whole. I realise that there are serious criticisms to be made of the way the government is conducted in places like Mexico, Russia, the Philippines and Turkey. But are they really more lawless than China?

avery ng extradition china law

Avery Ng. Photo: Tom Grundy/HKFP.

The standards being applied here, according to the World Justice Project website, go like this:

  1. Accountability: The government, as well as private actors, are accountable under the law.
  2. Just Laws: The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
  3. Open Government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
  4. Accessible & Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

Reading this you wonder how on earth China got any points at all. The clue, I think, is in the methodology. The WJP is anxious to propound the view that any country can have the rule of law, no matter how undemocratic its government, or as they put it: “The Index has been designed to be applied in countries with vastly different social, cultural, economic, and political systems.”

In pursuit of this laudable objective, the index is compiled by quizzing large numbers of people, and particularly people in the legal system, in the country concerned.

You can see that this might, in places like Mexico or the Philippines, produce some pretty critical responses. Citizens of such countries have access to international news and media. They can travel. They know what the rule of law looks like. They can discuss it among themselves and read about it in local publications.

lady justice court

Photo: Wikicommons.

In countries where the citizens are denied access to the outside world either by visit or information, the situation is rather different. The rule of law is like a pedestal toilet – it’s very nice but if you’ve never had one you don’t really know what you’re missing. Indeed in a closed society, you may be bombarded with the message that you are not missing anything. Squatting is healthier.

For many years I used to teach Hong Kong students about media law. This was easy enough, they already knew what the law was and roughly how the system worked. You just had to teach the specific media stuff.

Teaching the same subject to mainland students involved a depressing discovery. You had to spend weeks explaining what the law was and how it worked, and even then some of them didn’t get it. People were gob-smacked by the discovery that in criminal trials under Common Law systems the accused was sometimes acquitted. The conviction rate in China’s criminal “courts” is something over 99 per cent.

I don’t know what the solution to this problem is for the Rule of Law Index. Perhaps they should keep the index but change its name, or prune countries which really don’t have a rule of law worth speaking of at all, but are good at keeping their citizens on the side.

The index itself rather subverts the notion that the rule of law is a national characteristic unconnected to other characteristics like the system of government, presence or absence of civil society, free speech and such like.

Hong Kong China flag

Hong Kong and China flag. Photo: inmediahk.net.

The fact is that all the top 30 index countries are ostensibly democracies. There are two disputable entries in this happy band: Singapore and Hong Kong. The United Arab Emirates at 32 is the highest scoring autocracy. I do wonder whether tolerance for “vastly different… systems” is appropriate when it results in a good score for a country with Sharia courts and stoning as a punishment.

Still, it appears that if you want to feature in the upper reaches of the index democracy is a necessary condition, if perhaps not a sufficient one.

This leaves me wondering about Hong Kong. We are constantly told that we can still have the rule of law as a core value, even while our government is a marionette whose strings are pulled by people in Beijing who neither know nor like the idea that the law should apply to them.

This may be possible in the short term, perhaps. But for how long?


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Hong Kong's extradition bill and the rule of law - more complicated than you think