By Mathias Cheung, barrister at Atkin Chambers
“The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvellous victory” – those words of the late Howard Zinn sum up how many a Hongkonger feels about the historic protests which took place on 9 June and 16 June 2019 over the extradition bill.
To the very many who support this remarkable public demonstration of discontent, the true “victory” which the people have long been calling for has yet to come, that is, the complete withdrawal of the extradition bill instead of a mere suspension of the legislative process.
The well-rehearsed genesis of the extradition bill is the tragic Taiwan murder case. It calls to mind how the American jurist, Oliver Wendell Holmes Jr, warned that “great cases like hard cases make bad law… because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment”.
It is plain that a considerable number of Hongkongers consider the extradition bill to be a serious lapse of judgment, an ill-conceived attempt to plug a legal lacuna by recklessly creating a legal blackhole which puts every Hongkonger at risk. It would be a mistake to casually dismiss this as “doubts” to be eliminated by more “explanation work”, as if this is all based on unfounded paranoia.
To genuinely begin mending the rift which has torn the Hong Kong society apart, the Government has to take stock and understand the two fundamental issues which are driving the persistent calls for the withdrawal of the extradition bill.
First, there is a widespread impression that the Government is habitually and paternalistically imposing laws on Hongkongers without proper regard for their views and best interests. It is this same sense of lack of accountability which fuelled the debate on universal suffrage back in 2014. If the promise to sincerely listen to the people is to have any credibility, it is important for the Government to commit to a proper consultation process involving the Law Reform Commission and all members of the public – and that applies to all future legislation of importance.
Second, it is important not to lose sight of the concern that no amount of amendments to the extradition bill can address the fundamental objection to any extradition arrangement with the PRC, namely the very real risk that an individual would face a serious breach of his/her right against torture and inhuman and degrading treatment and a flagrant denial of his/her right to a fair trial. This problem stems from the very root of the PRC legal system and cannot easily be resolved by amendments to the bill or diplomatic assurances, and the suggestion that these concerns should fall away with more communication and/or more safeguards unfortunately misses the point.
What the Government does next is not just a question of political manoeuvring, but an executive decision which is strictly conditioned by its legal and constitutional duties under the Basic Law, the Bill of Rights Ordinance (BORO) and the International Covenant on Civil and Political Rights (ICCPR). It is a test of whether the Government is truly and always faithful to all the constitutional safeguards which Hongkongers are entitled to, and not just when it suits the Government’s agenda.
Article 39 of the Basic Law constitutionally mandates the protection of the fundamental rights enshrined in the ICCPR and implemented through the BORO. It is well established that “a statutory provision is liable to be constitutionally invalidated on the ground of inconsistency with the BOR”, as the Court of Final Appeal stated in Lau Cheong v HKSAR (2002) 5 HKCFAR 415 at paragraph 32.
In the context of the extradition bill, Articles 3 (no torture or inhuman treatment), 6 (persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person) and 10 (right to a fair and public hearing) of the BORO are particularly pertinent. The necessity of protecting these rights in the context of extradition is well-established in international human rights law, as evidenced by the approach of the European Court of Human Rights (ECtHR) which has long been an important reference point for the courts of Hong Kong.
In Chahal v United Kingdom (1996) 23 EHRR 413 at paragraph 79, the ECtHR made it very clear that “whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion… the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration”.
Similarly, in Othman v United Kingdom (2012) 55 EHRR 1 at paragraph 267, the ECtHR made it plain that “the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome”.
Insofar as a state seeks to to rely on any diplomatic assurance in this regard, it bears emphasis that “assurances are not in themselves sufficient to ensure adequate protection against the risk of ill‑treatment”, as emphasised by the ECtHR in the Othman decision at paragraph 187.
When it comes to the PRC, it is no secret that human rights watchdogs have consistently voiced serious concerns over the pattern of abuses. In its “Concluding observations on the second periodic report of China” dated 13 June 2014, the UN Economic and Social Council observed (at paragraph 10) that there are “reports of basic gaps in the independence of the judiciary in the State party”.
Further, in its “Concluding observations on the fifth periodic report of China” dated 3 February 2016, the UN Committee against Torture (at paragraph 20) observed that “notwithstanding the numerous legal and administrative provisions prohibiting the use of torture, the Committee remains seriously concerned over consistent reports indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions”.
The real risk that the extradition of any individual to the PRC would violate the BORO and the ICCPR is thrown into sharp relief by the New Zealand Court of Appeal’s recent decision in Kim v Minister of Justice for New Zealand  NZCA 209, which halted an attempt to extradite an individual to the PRC and observed (at paragraphs 217 and 220) that “the lack of independence of the judiciary is systemic” and “the assurances regarding compliance with international law provide little comfort, since the PRC has not ratified the ICCPR”.
Therefore, no matter what shape or form the extradition bill takes, there is a genuine concern that the extradition of any individual to the PRC would violate the fundamental rights protected by the BORO and ICCPR (as entrenched by Article 39 of the Basic Law), such that any statutory framework enabling extradition to the PRC would inherently be inconsistent with the BORO and ICCPR and would ultimately be unconstitutional.
This is not helped by the fact that the extradition bill does not contain any express provision requiring the courts to consider an individual’s fundamental rights under the BORO and the ICCPR when reviewing an extradition arrangement, unlike for example the express human rights safeguards in section 87 of the UK’s Extradition Act 2003.
In this sense, the people have a legal and constitutional right to call for the withdrawal of the extradition bill as a matter of principle. If the voices of 2 million people did not carry sufficient weight (and that would be most lamentable), then it is important to bear in mind the timeless admonition of Thomas Fuller: “Be ye never so high, the law is above you.”
Wherever one stands on the recent wave of protests, one question remains: does the Government have the will to prevent the irrevocable loss of confidence (of Hongkongers and of international observers and investors alike) in the integrity of Hong Kong’s mini-constitution and rule of law? That is what is truly at stake, and it would be a disproportionate price to pay for eluding a political embarrassment which has long since been a fait accompli.
Mathias Cheung is a barrister at Atkin Chambers in London.
Kong Tsung-gan‘s new collection of essays – narrative, journalistic, documentary, analytical, polemical, and philosophical – trace the fast-paced, often bewildering developments in Hong Kong since the 2014 Umbrella Movement. As Long As There Is Resistance, There Is Hope is available exclusively through HKFP with a min. HK$200 donation. Thanks to the kindness of the author, 100 per cent of your payment will go to HKFP’s critical 2019 #PressForFreedom Funding Drive.