Why the EU’s position on Hong Kong’s extradition bill lacks credibility

In the past two months, social unrest caused by the now shelved extradition bill has become a fact of everyday life in Hong Kong.

Had it been passed, the bill would have introduced legislative amendments to the Fugitive Offenders Ordinance allowing extradition of suspects from Hong Kong to mainland China, which was previously not possible. Concerns over whether there were sufficient safeguards against arbitrary extradition built into the bill erupted into fierce public outrage.

On 18 July 2019, the European Parliament adopted a resolution on Hong Kong urging for the formal withdrawal of the extradition bill, expressing deep concern over the amendments challenging the rule of law. At the same time, however, extradition treaties are currently in place between China and some EU member states, including Bulgaria, Lithuania, Portugal, Romania, Spain and France. As such, it appears that extradition to China in itself may not fully explain the European Parliament’s stance on the Hong Kong government seeking similar extradition arrangements as some of its member states.

One of the matters which may have informed the European Parliament’s view on the extradition bill may have been the limited review function of the Hong Kong courts in respect of extradition requests. Apart from the refusal to surrender on certain grounds, a person will be committed to custody for his surrender in respect of a relevant offence where the committal court is satisfied that supporting documents have been produced and duly authenticated, and that there is prima facie evidence to warrant the person’s committal for trial. Indeed, depending on the specific terms of the respective treaties, extradition treaties between China and EU members states may provide wider discretion to refuse extradition. For instance, in the treaty between France and China, extradition may be refused on humanitarian grounds.

Be that as it may, past experience does not seem to indicate that EU signatories have found the need to have recourse to such discretionary refusal. In fact, recent extraditions do not show any apprehension on the part of these member states to extradite suspects to China. In September 2016, France extradited Chen Wenhua, an official from Zhejiang province suspected of embezzlement. In 2018, Bulgaria extradited former deputy head of Xinchang county Yao Jinqi, who was accused of accepting bribes. More recently, Spain extradited 94 Taiwanese citizens to China in June 2019. What then does the European Parliament mean in its resolution by saying that it “[i]s of the view that the planned amendments to the Ordinance would challenge the rule of law and the independence of the judiciary in Hong Kong”?