Withdrawing the controversial bill is unlikely to resolve the crisis.

After months of increasingly violent protests, Hong Kong’s chief executive, Carrie Lam, announced that the government would withdraw the controversial extradition bill which sparked this wave of unrest.

Withdrawing the bill was one of five demands made by the protestors, but Lam’s move has been described by many as ‘too little too late’. Many have observed that this move is unlikely to resolve the crisis. That being said, it is worth considering the bill and the issues that have ultimately led us to this point.

The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 was first proposed by the government of Hong Kong in February 2019.  Officials spoke of a ‘loophole’ in Hong Kong’s current extradition arrangements that made Hong Kong a potential haven for criminals.

The government pointed to a 2018 case in which a man was alleged to have murdered his pregnant partner while holidaying in Taiwan, before fleeing home to Hong Kong. He was detained in Hong Kong on other charges and later confessed to killing his partner during an argument on holiday.

As Hong Kong law does not currently provide for the prosecution of individuals for crimes committed outside its own jurisdiction, the only way to bring the suspect to justice would be to have him extradited to face criminal proceedings. But this was impossible due to the lack of an extradition treaty with Taiwan.

Under Hong Kong’s existing extradition law, Hong Kong can only enter into extradition agreements with jurisdictions 'other than the Central People’s Government or the government of any other part of the People’s Republic of China'. China does not recognise the sovereignty of Taiwan and Hong Kong would be unable to enter into any extradition treaty with Taiwan.

The provision is seen as an important protection from the jurisdiction of mainland China. Indeed, a former Uk foreign secretary, Sir Malcolm Rifkind, who was responsible for the final stage of the handover negotiations with China, spoke out in June stating that, far from leaving a ‘loophole’, 'the law provides a necessary firewall to ensure that Hong Kong’s judicial independence remains intact'.

The bill would have introduced a mechanism for ad hoc transfers of fugitives, on the order of the chief executive, to any jurisdiction with which the city lacks a formal extradition treaty – including mainland China. Promoters of the bill pointed to the fact that many jurisdictions, including the UK, utilise ad hoc arrangements as a mechanism for facilitating extradition in the absence of formal treaties.

However for many, the bill was seen as a threat to Hong Kong’s judicial and legal independence from China and as a further erosion of the freedoms enjoyed by Hong Kongers. China has a truly appalling human rights record; its justice system bears no resemblance to that enjoyed in Hong Kong. Opponents of the bill feared that China would abuse any extradition law in order to target political opponents and dissidents – many of whom have fled from mainland China to Hong Kong.

Lawyers in Hong Kong, many of who joined the protests against the bill, stressed there were insufficient legal safeguards available for those facing extradition. While the proposed law provided that suspects shouldn’t be extradited for offences of a political nature, the onus would be on the suspect to prove that an extradition request is politically motivated. More broadly, according to the Hong Kong Bar Association, while there was a protection against extradition in cases where the death penalty might be imposed, there would be no scope for the courts to examine whether the suspect would receive basic human rights protection upon removal. The courts were constrained in the matters they can consider and in practice would only look at whether there is a prima facie case against the suspect.

The final decision on extradition was left to Hong Kong’s chief executive, who would also consider any humanitarian grounds for refusal. In the case of extradition to mainland China she would remain politically answerable to China, thus posing grave concerns over her independence and impartiality.

The use of ad hoc extradition agreements is a necessary component of the UK’s extradition arrangements, but these arrangements only operate subject to a robust judicial process designed to to protect individuals from a violation of their human rights through unfair trials, mistreatment or as a result of oppressive, abusive or politically motivated requests.

Should there in future be any appetite to look again at Hong Kong’s extradition arrangements, it is to be hoped the authorities heed the calls of the Hong Kong Law Society which, following the suspension of the bill in June, urged the government to not rush through legislation on the matter and to conduct extensive consultation before introducing any changes to the law.

Thomas Garner is head of the extradition team at Gherson