By Amanda Bogan and Jessica Batke
This article originally appeared on ChinaFile’s The China NGO Project.
Hong Kong legislators are currently engaged in a fierce struggle over the proposed passing of a bill that would expand Hong Kong’s policy to allow for extradition, on a case-by-case basis, to countries with which the territory does not have formal agreements. One such country is China. Since the 1997 handover, Hong Kong’s extradition law has explicitly excluded the possibility of extradition to mainland China, but the amendments currently being debated would change that.
The international business community has spoken out against the revisions, arguing that the proposed changes would undermine the legislative independence of Hong Kong, while risking the security of foreign businesses and organizations operating within the city. Citizen-led protests erupted in March after the amendments were first raised in February and have continued since. A physical brawl broke out between opposing lawmakers on the Legislative Council floor last week.
In response to the outcry, legislators removed nine financial crimes from the list of offenses that could result in extradition. However, pro-democracy legislators have criticized the revision for giving preferential treatment to business leaders and forbidding extradition for certain crimes but not others. The Hong Kong Bar Association questioned why, if mainland courts should not be trusted to handle economic crimes, they should be trusted to handle other crimes.
Despite the contention, however, the amendments look likely to pass. Chief Executive Carrie Lam has insisted that the bill be passed before the Legislative Council is dismissed for summer in July, and the bill has been vigorously championed by pro-Beijing lawmakers, including Secretary for Security John Lee, who claims the amendments are necessary to prevent Hong Kong from becoming a refuge for criminal suspects, particularly those fleeing mainland China. In fact, the amendments were raised in response to the case of a Hong Kong man who was accused of killing his girlfriend while in Taiwan before fleeing to Hong Kong. Because Hong Kong does not officially recognize Taiwan as independent from mainland China, allowing for extradition to Taiwan would be synonymous with extradition to China—which is forbidden by current law.
What might the amendment mean for Hong Kong-based international NGOs working on China? Hong Kong is considered “foreign” under the Foreign NGO Law, meaning groups incorporated there must work under the auspices of the Foreign NGO Law to carry out activities in the mainland. For groups that have their headquarters elsewhere in the world, an outpost in Hong Kong simply means that they have a footprint proximate to the mainland but it does not offer them any immediate ability to legally conduct activities there. Could Beijing request the extradition of NGO employees engaged in sectors that Beijing finds politically “sensitive” (for example, LGBT or gender equality issues, which make up only a tiny percentage of foreign NGOs’ approved work in China)? If such groups are accused of criminal activity by mainland authorities, would Hong Kong courts assent to extradition?
These questions may have seemed somewhat overwrought a year ago, but the environment for international non-profits working in China has shifted since the December detentions of Michael Kovrig and Michael Spavor. Both are Canadians who were working for international NGOs when they were detained in China, in a move many observers view as retaliation for Canada’s arrest of Huawei CFO Meng Wanzhou, a Chinese citizen, for possible extradition to the United states. The Chinese government recently formally arrested Kovrig and Spavor on espionage charges. In this changing context, it is worth asking whether international non-profit employees in Hong Kong will face greater risks once the law is amended.
The specifics of Hong Kong’s extradition law provide some safeguards against politically motivated extradition cases. For example, according to Hong Kong’s Fugitive Offenders Ordinance—one of the two ordinances that would be affected by the proposed amendment— suspects cannot face extradition if they are being persecuted on account of their “religion, nationality, or political opinions.” Moreover, extradition requests would only be considered if they are in accordance with the “double criminality principle”—meaning that the offense committed must be considered a criminal act in both Hong Kong and mainland China, and that suspects cannot be extradited if they may face the death penalty, which is outlawed in Hong Kong.
Yet, neither the intent nor the letter of the law completely safeguards against its use as a political tool. “Technically, it is indeed true that the acts for which extradition is sought have to constitute an offense in both Hong Kong and the other jurisdiction,” says Alvin Cheung, visiting scholar at NYU’s U.S.-Asia Law Institute. “The problem is that it would be easy to cook up an extradition request based on facts that would constitute an offense in both jurisdictions. For instance, consider how easy it would be to frame requests in terms of fraud or conspiracy to defraud.”
Revisions to Hong Kong’s extradition law do not appear related to the international non-profit community in Hong Kong, and indeed, may have no effect on the community at all, either now or later. But as foreign NGOs find themselves operating with less freedom in the mainland and looking to Hong Kong as a potential China outpost, the international non-profit community should be aware that the changes have the potential to significantly alter the status quo.