Rendition
168. One of the most controversial issues in Hong
Kong at this time is the attempt to reach a rendition agreementwhat
would be described as an extradition treaty if Hong Kong were
a statewith the mainland. There is natural concern about
the consequences of an agreement which results in defendants being
transferred from the transparent, impartial, legal system found
in Hong Kong to the mainland's considerably less transparent system.
As we discuss above,[409]
nothing approaching the concept of "due process" is
applied on the mainland. We heard the concerns of a number of
members of LegCo during our visit to Hong Kong that there could
not be a fair trial on the mainland. Against this, Elsie Leung,
the Secretary for Justice, argued that only a limited number of
cases would be subject to rendition, and that even the USA was
near to reaching an agreement with China on mutual assistance
on legal matters. One of the main stumbling blocks was the death
penalty, which was widely applied in the mainland, but not in
Hong Kong.
169. When we met the Chief Executive, he argued that
the Hong Kong administration would be failing in its duty if it
did not reach a rendition agreement with the mainland: otherwise,
criminals would be free to flee across the border. Those facing
rendition to the mainland would have the safeguard of going through
the courts in Hong Kong. In any event, the justice system in China
was getting better: for example, cases were no longer always closed
to the media.
170. With regard to rendition, the Foreign Secretary
told us that "we would expect any outcome to be wholly consistent
with the Basic Law and with the judicial process of Hong Kong,"[410]
while the FCO informed us that "we have made clear to the
Chinese and SAR Governments our view that any arrangements must
be acceptable to all concerned."[411]
Unless the FCO has an indication that an agreement is being forced
on the Hong Kong side, this is a fairly meaningless statement.
From what the Chief Executive told us, he appears to have accepted
the need for a rendition agreement: he almost went as far as to
say that a bad agreement was better than no agreement. It seems
clear, however, that rendition is not going to be acceptable to
liberal opinion in the LegCowhich may or may not be included
in the FCO's definition of "all concerned." The negotiation
of extradition treaties is a highly sensitive issue, impinging
as it does on states' sovereignty, even between jurisdictions
with similar legal systems. It is unsurprising that rendition
is controversial between Hong Kong and China, which do not have
similar legal systems. We are sympathetic to the Chief Executive's
argument that it is necessary to have a rendition agreement with
the mainland. However, we find the FCO's line that any agreement
must be acceptable to both sides rather limited. Upholding the
rule of law in Hong Kong is a central element of the Joint Declaration,
and the rendition agreement has implications for the rule of law
in Hong Kong. We recommend that the FCO should take a keen
interest in the rendition agreement, and should encourage both
sides to ensure that any agreement has proper safeguards to prevent
human rights abuses.
Mainland intervention in Hong
Kong politics
171. The Foreign Secretary told us that "we
spent the whole of the negotiating process up to the handover
trying to get agreements so that [the mainland] could not...or
should not [intervene in Hong Kong politics]. Indeed, the agreements
that we reached with Beijing were specifically designed in order
to prevent that from happening."[412]
Despite this, there have been a series of interventions by the
mainland in Hong Kong politics since the handover. Beijing appears
to have become particularly concerned after the presidential elections
in Taiwan. In April 2000, the deputy head of the Central Government
Liaison Office in Hong Kong said that "the media [in Hong
Kong] should not treat speeches and views which advocate Taiwan's
independence as normal news items, nor should they report them
like normal cases of reporting the views of different parties."[413]
The Foreign Secretary told us that "we would wholly disagree
with that statement"[414]
and the United Kingdom Consulate-General in Hong Kong issued a
statement at the time indicating its disapproval. Press freedom
is, of course, one of the freedoms enshrined in the Basic Law.[415]
In our discussions with the press corps in Hong Kong we heard
that one of the problems facing the local press was that ownership
of the local media was in the hands of business people with considerable
interests on the mainland: there was therefore a degree of self-censorship.
Clearly, statements of the sort made by the Liaison Office will
only encourage this sort of self-censorship. One of the most striking
examples of this sort of self-censorship has been the recent sacking
of Willy Wo-Lap Lam, the mainland editor for the South China
Morning Post, after he wrote an article noting that the newspaper's
controlling shareholder had been instructed by the mainland to
support C H Tung as Chief Executive. While criticising a newspaper's
proprietor is never likely to be a good career move for a journalist,
Lam was replaced by a former editor of the pro-Beijing China
Daily.[416]
172. In May, the Chief Executive was reported to
have insisted that the new Taiwan representative in Hong Kong
(which operates unofficially through the Chung Hwa Travel Service)
would be denied a visa to travel to Hong Kong unless he made a
statement supporting the Communist Party's line that there is
only "one China."[417]
This may not have been as the result of direct intervention by
the mainland, but the Chief Executive would appear in this case
not to have been exercising Hong Kong's full autonomy. We then
heard during our visit that representatives of the mainland in
Hong Kong suggested that members of the Hong Kong business community
which have associated themselves with Taiwanese firms, and particularly
with any Taiwanese firms that had any inclination to support a
greater measure of independence of Taiwan from China would be
frowned on or worse by the Chinese authorities. Anson Chan, the
head of the Hong Kong civil service, reacted strongly against
Beijing's interventions in each case.
173. The next intervention by Beijing was directed
against Anson Chan herself. She recently met the Chinese Vice-Premier,
Qian Qichen. The Vice-Premier is reported to have "expressed
his hope that Chan and all public servants in Hong Kong will support
HK Chief Executive Tung Chee-hwa and contribute to the prosperity
of the territory under the Chief Executive."[418]
While in many ways this is an unobjectionable statementof
course it is the job of the civil service to support the Chief
Executivein the context of reports of disputes between
the Chief Executive and Anson Chan, and given the fact that Anson
Chan was appointed under the United Kingdom administration while
the Chief Executive was appointed by the mainland, this intervention
becomes less welcome. Mainland media reports had also noted that
Beijing was unhappy with Anson Chan's "lukewarm backing for
a number of the chief executive's policy actions."[419]
Anson Chan is popular in Hong Kong, and her continuing role has
been a factor in business confidence in the Hong Kong administration
since 1997.
174. Lord Powell noted in evidence to us that "the
statements [relating to media coverage of Taiwan in Hong Kong]
were regrettable. They were short-sighted, counterproductive and
they mostly came from middle level officials who were plainly
trying to curry favour higher up the line."[420]
While it is true that a number of these statements have not come
directly from the most senior levels in Beijing, they reflect
a pattern of intervention in Hong Kong's internal affairs. Recent
interventions in Hong Kong by mainland officials are unwelcome
and appear to betray a misunderstanding both of Hong Kong's autonomy
and of what it means to live in a free society. As well as acting
as a guarantor of Hong Kong's freedoms, a free press remains vital
to Hong Kong's future as an international business centre. We
recommend that the United Kingdom Government frequently reinforces
this point both to the Hong Kong administration and to Beijing.
357 Second Report of the Foreign Affairs Committee,
Session 1988-89, HC 281, and First Report, Session 1993-94, HC
37. Back
358 Third
Report of the Foreign Affairs Committee, Session 1997-98, HC 710,
available on www.publications.parliament.uk/pa/cm199798/cmselect/cmfaff/cmfaff.htm. Back
359
A list of those the Committee met is set out in the Annex. Back
360
See para. 3. Back
361
Q108. Back
362
Available on: www.fco.gov.uk/news/keythemepage.asp?56. Back
363
Ev. p. 119. Back
364
Ev. p. 10. Back
365
Joint Declaration, Articles 3 and 5. Available on: www.info.gov.hk/trans/jd/jd2.htm. Back
366
According to the former Governor, Chris Patten: "As for the
Basic Law, since the intention to draft it was included in the
Joint Declaration, I was bound to recognise that it would form
the future Hong Kong constitution...but it was not my Basic
Law, nor the British government's. Britain had tacitly, and with
a degree of deserved embarrassment, given it a distant blessing,
but we had not been party to it and we were not legally, politically
or morally bound by it. There were parts of it-for example its
provisions on subversion-that I did not like and had some difficulty
reconciling with the Joint Declaration and the common law."
East and West, 1998, Macmillan, London, p. 43. Back
367
See para. 9. Back
368
Ev. pp. 117-118. Exports were £2.3 billion in 1999, ev.
p. 223, Appendix 29. Back
369
Ev. p. 111; Ev. p. 224, Appendix 29. Back
370
Ev. p. 221, Appendix 29. Back
371
Ev. p. 223, Appendix 29. Back
372
The UK has 7.9 per cent of OECD exports to Hong Kong, compared
to 7.4 per cent for Germany, 4 per cent for France, and 5.7 per
cent for Italy. Ev. p. 223, Appendix 29. Back
373
Ev. p. 118. Back
374
Ev. p. 223, Appendix 29. Back
375
Rough estimate by the Consulate-General, Hong Kong. Back
376
Available on: www.fco.gov.uk/news/newstext.asp?3102. Back
377
Six-monthly Report on Hong Kong, January-June 2000, July 2000,
Cm 4809, p. 3, available on www.fco.gov.uk. Back
378
Britain and China Partners for the Millennium, The State visit
of the President of the People's Republic of China, 19-22 October
1999, p. 7, Agenda Publishing. Back
379
Quoted in the Six-monthly Report on Hong Kong, January-June 2000,
July 2000, Cm 4809, p. 4, available on www.fco.gov.uk. Back
380
Q11. Back
381
Prior to the handover, 2.7 million people were eligible to vote
in the functional elections: after the handover, "employees"
lost their votes, and only "professionals" were able
to vote, reducing the electorate to 180,000. Back
382
See para. 155. Back
383
Joint Declaration, Article 4. Available on: www.info.gov.hk/trans/jd/jd2.htm. Back
384
Jonathan Dimbleby records in The Last Governor (Warner
Books, 1998, p. 13) that a group of backbenchers, led by Mr Ted
Rowlands, visited Hong Kong in 1979, and "took it upon themselves...to
'harangue' the governor of the time, Sir Murray MacLehose, about
democracy...this encounter help[ed] to nudge the colonial administration
towards the establishment, in embryonic form, of the hydra-headed
quasi-democracy which [Chris Patten] was to inherit over a decade
later." Back
385
Q18. Back
386
Available on: www.fco.gov.uk/news/newstext.asp?3102. Back
387
See para. 25. Back
388
Article 45. Full text of the Basic Law available on: www.info.gov.hk/basic_law/english/f02.htm. Back
389
Annex 1, para. 7. Full text of the Basic Law available on: www.info.gov.hk/basic_law/english/f02.htm. Back
390
Annex 2.III. Full text of the Basic Law available on: www.info.gov.hk/basic_law/english/f02.htm. Back
391
Report on the development of the political system of the Hong
Kong Special Administrative Region, June 2000, 5.11. Hereafter
"Constitutional Panel report". Available on: www.legco.gov.hk/yr9900/english/panels/ca/general/eca.htm. Back
392
1999 Policy Address, available on www.info.gov.hk/pa99/english/part6.htm#a2. Back
393
Ev. p. 125. Back
394
Constitutional Panel report 4.13. Back
395
Constitutional Panel report 5.13. Back
396
Ev. p. 125. Back
397
Q299. Back
398
Q300. Back
399
Annex I, full text available on: www.info.gov.hk/info/jdfull2.htm. Back
400
E.g. Joint Declaration, 3.5, available on: www.info.gov.hk/info/jdfull2.htm. Back
401
Six monthly report on Hong Kong, July-December 1999, February
2000, para. 3, Cm 4594, available on: www.fco.gov.uk. Back
402
Six-monthly Report on Hong Kong, January-June 1999, July 1999,
Cm 4415, p. 5, available on www.fco.gov.uk. Back
403
Six-monthly Report on Hong Kong, January-June 1999, July 1999,
Cm 4415, p. 5, available on www.fco.gov.uk. Back
404
Six-monthly Report on Hong Kong, January-June 1999, July 1999,
Cm 4415, p. 5, available on www.fco.gov.uk. Back
405
I.e, the Hong Kong government did not ask for a reinterpretation
in respect of the CFA's judgment with regard to the right of abode
of children born out of wedlock. Back
406
Six-monthly Report on Hong Kong, January-June 1999, July 1999,
Cm 4415, p. 7, available on www.fco.gov.uk. Back
407
COM(2000) 294 final, 30 May 2000. Back
408
Six-monthly Report on Hong Kong, January-June 2000, July 2000,
Cm 4809, p. 8, available on www.fco.gov.uk. Back
409
See para. 37. Back
410
Q295. Back
411
Ev. p. 116. Back
412
Q296. Back
413
The Daily Telegraph, 14 April 2000. Back
414
Q297. Back
415
Article 27 states that "Hong Kong residents shall have freedom
of speech, of the press and of publication". Full text available
on: www.info.gov.hk/basic_law/english/f02.htm. Back
416
China News Digest, 5 November
2000. Back
417
The Daily Telegraph, 28 May 2000. According to the FCO,
the Chief Executive was applying rules which had existed since
1995, which stipulated that Taiwanese organisations could be represented
in Hong Kong so long as they did not engage in activities which
would damage Hong Kong's stability or prosperity. There is clearly
some room for interpretation in this requirement. Ev. p. 144. Back
418
BBC Monitoring, 26 September 2000. Back
419
BBC Monitoring, reporting Radio TV Hong Kong web site, 26 September
2000. Back
420
Q124. Back