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Wednesday, May 15, 2019, 01:14
New US commission report makes flawed assessments on HK for political reasons
By Grenville Cross
Wednesday, May 15, 2019, 01:14 By Grenville Cross

In 2000, the US-China Economic and Security Review Commission was established by the US Congress. Its mandate is to monitor, investigate and submit to Congress an annual report on the national security implications of the bilateral trade and economic partnership between the US and China. It is also required, where appropriate, to make recommendations to Congress for legislative and administrative action. 

Although the commission’s terms of reference do not specifically require it to base its assessments on objective analyses, the Congress presumably expects no less. The Congress also hopefully looks to the commission to examine issues comprehensively, and without partiality. If so, the commission, in its latest “USCC Issue Brief”, compiled by staffer Ethan Meick, a policy analyst, has fallen down on the job.  

The proposed amendments to the Fugitive Offenders Ordinance will enable fugitives in Hong Kong to be returned, on a case-by-case basis, to other jurisdictions for trial. Since Hong Kong currently has no fugitive surrender arrangements in place with the other parts of China, or with 174 countries around the world, it has become a sanctuary for criminals, something which no self-respecting jurisdiction can be expected to tolerate. 

However, the commission’s brief condemns the proposals, conjuring up far-fetched scenarios. With its imagination in overdrive, it even suggests that US Navy personnel on recreational visits to Hong Kong could find themselves being extradited to the mainland, and that they may therefore need to stop coming here. If it really believes that, perhaps the commission should also warn US sailors to keep away from Seoul, since South Korea has an extradition agreement with China. 

The commission’s brief, however, is not concerned with the 174 countries, but only with the Chinese mainland, which exposes its anti-China mindset

The commission’s brief, however, is not concerned with the 174 countries, but only with the Chinese mainland, which exposes its anti-China mindset. Meick claims that the proposals “could allow Beijing to pressure the Hong Kong government to extradite US citizens under false pretenses”, which is a reckless hypothesis, indicating ignorance of how the “one country, two systems” paradigm operates. It also disregards the pivotal role played in the extradition process by Hong Kong’s independent judiciary, as well as the battery of safeguards designed to prevent any abuse of the system. 

Although the commission is quite prepared to impute bad faith to Beijing, it conveniently ignores the fact that 40 countries have already signed extradition agreements with the Chinese mainland, including some US allies, such as France, Spain and Thailand. None of these has ever been hoodwinked, let alone coerced, in the manner the commission suggests.  

This apart, those 40 countries would not have signed their extradition agreements with Beijing if they felt that returned fugitives would not be appropriately treated. Indeed, there have been no complaints from any of them that the fugitives they sent back were not treated as agreed. This shows that commitments, once made, are honored, which has always been China’s way. 

The US, moreover, although it does not have an extradition treaty with the Chinese mainland, has nonetheless sent several fugitives back for trial, and they, as the parties agreed, were treated appropriately. In 2005, for example, when Yu Zhendong was returned from Las Vegas to Beijing, on embezzlement charges, the US was given assurances as to his treatment and sentencing, and these were honored. Again, in 2015, when Yang Yinjun was sent back to face bribery charges, Washington was happy to help Beijing’s “Sky Net” anti-corruption initiative, subject only to basic guarantees, which were duly given.

Quite clearly, as the commission must know, the US itself would never tolerate a situation in which a fugitive could evade justice by simply moving from one part of the country to another. The notion that a criminal could commit an offense in, for example, Arizona, and then claim safe haven in, say, Texas, would strike most Americans as abhorrent, and the extradition clause in the US constitution seeks to avoid this ever happening. How, therefore, the commission can seriously suggest that there should not also be a mechanism in place in Hong Kong to enable fugitive offender transfers, in appropriate cases, to other parts of China beggars belief, and raises serious questions over its objectivity. The reasons, however, are not hard to find, for they start at the top. 

The commission is chaired by Carolyn Bartholomew. She was previously chief of staff, legislative director, and foreign policy adviser to none other than Nancy Pelosi, now the US House of Representatives speaker. It was Pelosi, moreover, who appointed her to the commission for a two-year term, expiring on Dec 31, 2019, and to whom, therefore, she is beholden. 

Against this background, the picture becomes clearer. When Hong Kong’s three “pan-democrats”, Anson Chan Fang On-sang, Dennis Kwok Wing-hang, and Charles Mok Nai-kwong, made their now notorious trip to Washington DC in March, it was Pelosi, as the top Democrat, who welcomed them. She eagerly rolled out the red carpet, hoping they would put the boot into Hong Kong, and they did not disappoint. According to Kwok, one of the “key issues” they discussed was the government’s fugitive offender plans, with Pelosi expressing “deep concern”. This, of course, should have surprised nobody, as the trio, while happy to savage the proposals, suppressed the positives. 

In consequence, the commission’s brief disregards the international safeguards which underpin the security bureau’s proposals, particularly regarding non-extradition for political offenses, or for death penalty cases. Nor does it mention that surrender will be refused if the true purpose of the request is to persecute someone for his or her race, religion, nationality or political opinions. The close judicial scrutiny of the whole process, including rights of appeal, is likewise disregarded. Since the trio explained none of these things clearly to Pelosi, it is unsurprising that she, in turn, was in no position to brief Bartholomew properly, before she signed off on Meick’s brief.

This is a great pity, because it means that Congress has received an inaccurate briefing. It is also alarming, because the brief asserts that, if the fugitive offender proposals are enacted, the US may have to “reexamine important elements of its current relationship with Hong Kong”. This could mean the suspension or even revocation of the US-Hong Kong Policy Act, under which Hong Kong is treated differently from the mainland in trading matters. This, of course, might damage Hong Kong commercial interests, as Chan’s trio must have known when they set Pelosi up.

The commission’s brief, moreover, provides another fascinating insight into its thinking. In 2017, Hong Kong declined a US extradition request for an alleged hacker, and this clearly still rankles. Although the commission claims that the case raised “questions regarding the Hong Kong authorities’ ability to uphold legal commitments to the US”, the US-Hong Kong fugitive surrender agreement states specifically that either side can legitimately refuse a request where it involves the defence, foreign affairs or essential public interest or policy of the state. Although exact reasons for the refusal are not known, the commission is naive to assume that Hong Kong, or any other place, will automatically comply with any US request for surrender, and it certainly affords no basis for disparaging Hong Kong’s current efforts to promote more effective criminal justice in China, and beyond.  

Although the commission seeks to intimidate Hong Kong, no respectable government can succumb to political blackmail, particularly when it is premised on a fundamentally flawed analysis. The Hong Kong government must, therefore, persevere, and do all it can to get its message out. If the rule of law is to prevail, criminals must face justice, and if this can be achieved it will benefit not only Hong Kong but also the wider global community.

The author is a senior counsel, a law professor and criminal justice analyst, and was previously the director of public prosecutions.

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