INTRODUCTION
Extradition is ‘the surrender of a criminal by a foreign state to which he has fled for refuge from prosecution to the state within whose jurisdiction the crime was committed, upon the demand of the latter state, in order that he may be dealt with according to its laws.’ It is however not given enough attention globally. There is a proper procedure for a valid extradition. The offence must be a crime in both the countries, and an extradition treaty must exist between them. The absence of extradition treaties complicates the process of extradition, and the extradition can be executed only at the behest of the requested nation. The country seeking extradition has no remedy if the requested nation denies extradition. The lack of extradition treaties is a challenging problem and it needs to be addressed on an international level. There are a lot of cases pending on an international level with issues related to the extradition of a criminal from a country where the extradition treaty does not exist. In this article, an attempt is being made to address the issue of the lack of extradition treaties (referred to as treaties herein after) between countries. One of the recent cases with an international conflict in relation to the extradition is the Hong Kong’s Fugitive Extradition Bill. The Bill that was introduced by the Government of Hong Kong was controversial in nature and questions the autonomy of Hong Kong’s administration. This led to civil unrest among the citizens of Hong Kong. The citizens retaliated by conducting mass protests. Since Hong Kong is an exception and not a rule understanding the history of the country is crucial. The history of Hong Kong is complex there is no precedent or a subsequent episode that may resemble Hong Kong’s history.
HISTORY OF Hong Kong
The history goes back to when Britain defeated China in the first opium war and the defeat came with a great cost. China was forced to cede the islands of Hong Kong to United Kingdom in the Treaty of Nanjing signed in the year 1842. United Kingdom held Hong Kong as a colony for a period of 150 years. Hong Kong under Britain had a huge amount of autonomy. It westernized in almost all areas including education, government and culture. Hong Kong became ridiculously wealthy and earned its nickname “Pearl of the Orient.” In July 1997, the United Kingdom handed over the colony to china. In the 1970’s before the expiration of the treaty U.K as well as china decided the trajectory of Hong Kong’s future. This is when the Sino- British Joint Declaration was signed. In this declaration China agreed to give Hong Kong political and social autonomy this was agreed expressly for a period of 50 years.[1]
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The deal was secured by “One China, two systems policy.” Hong Kong therefore became a Special Administrative Region of China with its own mini Constitution and basic laws relating to freedom of speech, assembly etc. Although Hong Kong is a part of China, there is presidential democracy in Hong Kong. Therefore, even after the end of the British colonialism, Hong Kong retained its autonomy of making rules and laws.[2]
The history of Hong Kong is unique making current situation complex. Let us understand the Bill that was introduced by the government along with the views of the protesters as well as the government to get a clear picture of the existing crisis.
Hong Kong’s FUGITIVE EXTRADITION BILL –
Recently, a man from Hong Kong murdered his pregnant girlfriend in Taiwan and returned to Hong Kong, he was charged with the crime in Taiwan however the authorities refused to extradite him due to the lack of extradition agreement between Hong Kong and Taiwan.[3] Taking this case as the justification, the Chinese government in the month of February 2019 introduced the fugitive extradition bill. The introduction of this bill would facilitate extradition of suspects to any country who does not have an extradition agreement with Hong Kong including China, Taiwan. Hong Kong has extradition treaties with UK, US and twenty other nations but China and Taiwan are not a part of the list. It also provided for case-by-case transfer to Chinese jurisdiction.[4] The question then arises why would the government interfere in the autonomous functioning of Hong Kong? It was introduced to prevent Hong Kong from becoming a safe haven for criminals.
IMPLICATIONS OF THE EXTRADITION BILL
PROTESTOR’S VIEW
- Britain handed over Hong Kong to China under guarantees that its autonomy and freedoms, including an independent justice system, would be protected this was decided in the Sino- British Joint Declaration that was signed by both the countries.
- Hong Kong has been guaranteed 50 years of autonomy that is from 1997-2047 of their justice system and their administration. Introducing this bill would lead to the violation of the same. Therefore it generated unusually broad opposition, from normally pro-establishment business people, lawyers to students, pro-democracy figures and religious groups fearing the further erosion of Hong Kong’s legal autonomy and the difficulty of ensuring even basic judicial protections in Mainland China.[5]
- The U.S. State Department spokeswoman Morgan Ortagus said that “the United States was concerned, these amendments could damage Hong Kong’s business environment and subject our citizens residing in or visiting Hong Kong to China’s capricious judicial system.” Amid a worsening trade war with China, U.S. congressional lawmakers threatened to reintroduce a bill that would take trade privileges away from Hong Kong if they deemed it insufficiently autonomous from China. Therefore, if Hong Kong’s autonomy was further eroded, the existing trade relations between the countries like the U.S would be endangered.[6]
GOVERNMENT’s VIEW
John Lee, Secretary for Security of Hong Kong, claimed that the move was to plug a legal “loophole,” and that there were human rights safeguards in place so that no one will be extradited due to political crimes. The extradition of the criminals would be done only in cases of serious crimes and not political crimes.[7]
- The centre warned that under existing rules, the transfer only be made if the fugitive provided an assurance “that satisfies the chief executive”. It also said the ordinance should be amended to request a formal undertaking by an official with authority to guarantee the death penalty would not be imposed. Should this amendment be breached, no further extradition requests would be accepted from then on, it added. They sought to reassure the general public the bill would only target people accused of the most heinous offences, punishable by jail terms of at least seven years.
Lastly, the bill was withdrawn on 16th June[8] and was subsequently scrapped in the last week of October.[9]
CONCLUSION
The underlying problem is the lack of extradition agreements between countries, which lead to the protection of criminals even though accused of heinous crimes, but it has not been acknowledged sufficiently. It is therefore very important to address the lack of extradition treaties between countries. There are bilateral treaties signed by some countries but the concern here is, is that really enough. The lack of extradition treaties and increased global connectivity has made is less difficult for offenders in one country to escape to foreign jurisdictions and avoid prosecution in the former country. This leads to creation of safe haven countries where the criminals can flee. This is a challenging problem before the world and it needs to be addressed on a global level.
The countries, which believe in rule of law, should have an extradition treaty. The entire world is focused on globalization; authorities like NATO, WTO are focused on building trade relations among various nations. The United Nations and the International Court of Justice are founded to curb the international conflicts between various countries. The dispute that arises between two countries, due to the lack of extradition agreements, has no recourse. Even though in certain situations the nations may approach the International Court of Justice but the Court has only an advisory jurisdiction. There must be a regulatory body having an authoritative force on the parties to the dispute to resolve international conflict related to lack of extradition treaties. It is the need of the hour that there has to be some authority to regulate timely justice and serve as a deterrent against future fugitives. In the coming year the extradition crunch needs to be addressed which is critical to maintain world order.
[1] https://www.nationalgeographic.com/culture/topics/reference/hong-kong-history-explain-relationship-china/
[2] https://www.hongkongatlanta.com/info/
[3] https://www.nytimes.com/2019/10/18/world/asia/hong-kong-extradition-case.html
[4] Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019
[5] https://www.washingtonpost.com/world/2019/08/09/airport-sit-ins-citywide-strikes-street-protests-whats-happening-hong-kong/
[6] https://www.latimes.com/world/la-fg-hong-kong-extradition-20190615-story.html
[7] https://www.scmp.com/news/hong-kong/politics/article/3012778/hong-kong-extradition-bill-security-chief-john-lee-says-he
[8] https://www.latimes.com/world/la-fg-hong-kong-extradition-20190615-story.html
[9] https://www.thehindu.com/news/international/hong-kong-officially-kills-extradition-bill/article29779486.ece
This article is authored by Tulsi Mansingka & Nikita Mulay, student of BBA. LL.B (HONS) at School of Law, University of Mumbai.
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