How a Hong Konger’s death put Taiwan in a difficult spot amid the storm over Hong Kong’s extradition bill. Ming-Sung Kuo specially for The Diplomat.
The rise and fall of the Hong Kong government’s now suspended extradition bill – which could result in Hong Kong residents as well as visitors being sent to China for trial – is a tale of the best of times and the worst of times. On the one hand, the Hong Kong government’s decision to suspend the legislative process has been praised as evidence of how a vibrant civil society can bring a semi-democratic government to its senses from time to time. It is the best of times as reason still prevails, despite the growing signs of soft authoritarianism. On the other hand, the very attempt to tamper with the existing extradition law, under which a firewall was intentionally set up to shield Hong Kongers from China’s judicial reach on the eve of Hong Kong’s return to the motherland in 1997, betrays how fragile the city’s status is under “one country, two systems.” When such safeguards enshrined in the law are up for reconsideration before the 50-year period of guaranteed autonomy even reaches its halfway point, it is a dead giveaway of how bad the situation is.
Yet, the rise and fall of the extradition bill is not only about the worst and best of times in Hong Kong. It is also a tale of two islands: Hong Kong and Taiwan. The Taiwan half of this tale remains to be heard, as it has been downed out by the loud calls to “Support Hong Kong, Protect Taiwan” blasted in Taiwan’s streets and aired over the internet.
The Beginning of the Story: The Death of a Hong Konger in Taipei
As has been well reported, the Hong Kong government’s controversial proposal to change the existing extradition law was prompted by a murder committed in Taiwan in 2018. A Hong Konger named Chan Tong-kai gruesomely killed his girlfriend, also a Hong Kong resident, in February of that year when they were on holiday in Taipei. Chan then fled back to Hong Kong. As extraterritorial crimes are not punishable under the Hong Kong law, the only way to bring the suspect to justice would be to have him extradited to Taiwan to face criminal proceedings where the crime was committed. With no extradition agreement between Taiwan and Hong Kong, there was virtually no hope for Chan to stand trial in Taiwan. Moreover, under Hong Kong’s existing extradition law, Hong Kong can only exercise its China-blessed limited power to 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.” As a result, no extradition agreement can be entered into with China under Hong Kong’s existing law. That preclusion is regarded as a firewall shielding Hong Kongers from the jurisdiction of China. Of more pertinence to the murder case in Taipei is that the firewall provision also precludes the Hong Kong government from entering into any arrangement that would bring Chan to justice in Taiwan — unless Taiwan is considered a jurisdiction outside China.
Notwithstanding the preclusion clause under Hong Kong’s existing extradition law, Taiwan has continually called on the Hong Kong government to surrender Chan and transfer the relevant evidence to its judicial authorities, albeit without indicating whether an extradition agreement, permanent or ad hoc, is required before the surrender and transfer can go ahead. Thus, when the Hong Kong government first toyed with the idea of amending extradition legislation to restrict the preclusion clause to permanent extradition treaties and carve out simplified procedures for entering into ad hoc agreements in February 2019, Taiwan jumped at the chance. Anticipating the Hong Kong government’s invocation of the new provisions to make a deal with Taiwan, the Taiwan authorities welcomed such a legislative initiative without hesitation. Yet, the consequential legislative bill did not go unnoticed on both islands. The same provisions would also lead to the dismantling of the legal firewall set up over 20 years ago. Taiwan’s initial mindless response invited immediate criticism for its inadvertent collaborator role in the Hong Kong government’s plan to tip the “one country, two systems” balance in favor of “one country” by eroding Hong Kong’s distinct system.
Since then, Taiwan has shifted to a hard-line stance, vowing not to enter into any ad hoc extradition agreement under the proposed (and now suspended) extradition bill and criticizing Hong Kong’s pro-Beijing initiative as further evidence of the fundamental flaws of the “one country, two systems” arrangement. In the meantime, however, Taiwan did not relent on its jurisdictional claim, continuing to call on the Hong Kong government for judicial cooperation and legal assistance, including extradition, on the Chan Tong-kai case and beyond. Taiwan’s stance is nothing short of trying to square the circle. Why does Taiwan not simply relinquish its jurisdictional claim vis-à-vis Hong Kong so as to neutralize any pretext for the extradition bill, like the Chan Tong-kai case? To answer that question, we need to appreciate what asserting criminal jurisdiction means to Taiwan in the face of an increasingly aggressive China under Xi Jinping.
The Prelude: Criminal Jurisdiction as a Mark of Sovereignty
Though a self-governing territory, Taiwan continues to adopt a Chinese constitution and has stopped short of making a formal declaration of independence because of the red line drawn by Beijing. Thus Taipei has been keenly looking for nuanced ways to prove its sovereign existence, as if the cumulative effect of such evidence would eventually deliver the long hoped-for de jure independence. In the meantime, Taiwan’s people have been particularly sensitive to any action that may be seen as compromising its sovereign status, regardless of whether such a compromising effect is real or perceived. And the issue of criminal jurisdiction has risen to the top of Taiwan’s recent sovereign navel-gazing.
As with the practice of many countries in the world, certain extraterritorial crimes are punishable under Taiwan’s criminal law. So it comes as no surprise that Taiwan has not been shy about asserting its extraterritorial criminal jurisdiction. Yet the trouble is that given the “one China policy” popularly practiced in most countries or the Beijing-mandated “one China principle,” Taiwan (under the relic title of the Republic of China) only maintains diplomatic relations with 17 countries today. There’s little prospect of entering into extradition treaties globally. Lacking bilateral agreements on extradition, Taiwan has not only struggled to effectively exercise its extraterritorial jurisdiction but has also faced challenges in bringing fugitives back to face justice. Though challenging, it is not entirely out of the question. Rather, Taiwan has creatively found unorthodox ways to make renditions happen through the back door. For example, a U.S. passport-holding fugitive was brought back to Taiwan from the Philippines in September after the U.S. government revoked his passport and the Philippine officials conveniently handed him over to Taiwan law enforcement officers awaiting his deportation as an undocumented alien in Manila.
What has intensified Taiwan’s keen exercise of criminal jurisdiction as a way to consolidate its self-claimed sovereign status is a series of controversial extraditions (or simply renditions) of Taiwan nationals accused of international telecom frauds from, inter alia, Kenya, Malaysia, the Philippines, and Spain to China spiking in early 2016. Regardless of the legal niceties about concurrent jurisdiction in international law, the perceived loss of its own people to China is not something any politician in Taiwan can afford. There are also fears of the impression being created that Beijing holds sovereignty over Taiwan through its criminal jurisdiction over Taiwan passport-holders in third countries. Thus Taiwan has made strenuous claims to its jurisdiction over the extraterritorial crimes of which its nationals have been suspected. Pursuing justice beyond its borders becomes one of Taiwan’s top priorities in maintaining its sovereign marks in the face of China’s extended reach of criminal jurisdiction. This explains why Taiwan has been so obstinate on the extradition of a British fugitive to serve out his four-year custodial sentences in Taiwan, even if his extradition proceedings have been lingering in the British judicial system since 2013.
Seen in this light, Taiwan has every reason to pursue the Chan Tong-kai case. This is the logic behind Taiwan’s mindless initial response to the Hong Kong government’s proposal on the extradition bill, and the Taiwan judicial authorities’ continued request for judicial cooperation with its Hong Kong counterpart on Chan’s rendition and beyond.
The Overlooked Storylines: Taiwan’s Counteroffer to Hong Kong
Notably, the above judicial proceedings still lingering before the British courts were prompted by a Taiwan extradition request, which was made possible thanks to the provisions for ad hoc extradition agreements under U.K. extradition legislation, a source of inspiration for the Hong Kong government’s legislative initiative. With the extradition bill suspended and Taiwan continuing to pursue extraterritorial justice for a Hong Konger’s death in Taipei, there are two options before the Hong Kong government when it considers surrendering Chan to Taiwan in the interest of justice: Making rendition without any agreement or setting up an ad hoc arrangement under Hong Kong’s existing extradition law. Neither choice would raise the eyebrows of the Taiwan authorities. Yet each raises serious questions not only for the Hong Kong government but also for those who are interested in upholding Hong Kong’s rule of law and political autonomy, which are already being severely tested.
The first option appears natural in the eyes of the Taiwan authorities because Taiwan’s limited successes in the exercise of its criminal jurisdiction over extraterritorial crimes or fugitives are attributed to just such practices. To Taiwan, rendition without an agreement is a creative way to deliver justice without harming the rule of law. Yet under such practices, the surrendered persons have been denied judicial due process. Thus, the first option — making rendition without any agreement – may not trouble the Taiwan authorities but it is tantamount to extrajudicial or extraordinary rendition in light of international extradition practices. Making rendition without any agreement is totally out of bounds in Hong Kong as the rule of law, especially judicial protection, has been what Hong Kongers pride themselves on and what they have fought for in their resistance against the extradition bill. Thus, when the Taiwan judicial authorities continue to urge the Hong Kong government to engage in the rendition of fugitive offenders, despite no extradition agreement between the two jurisdictions, they inadvertently lend a helping hand to those who are careless of the rule of law in Hong Kong.
With the option of extrajudicial rendition excluded (and the legislative bill suspended), the only alternative for Hong Kong seems to be to enter into an extradition agreement with Taiwan under its existing extradition law or new special legislation that would carve out Taiwan from China. This has undergirded Taiwan’s position on its proposed judicial cooperation with Hong Kong. Given the preclusion clause providing for geographical limitations on extradition arrangements under Hong Kong’s existing extradition law, Taiwan is virtually suggesting to Hong Kong that Taiwan constitutes no part of China and thus does not fall under the geographical limitations. At first glance, this genius interpretation of the preclusion clause appears to solve all the problems: Justice will be delivered, the Hong Kong government can leave the firewall in the existing extradition law intact, Hong Kongers will continue to live out of China’s judicial reach, and Taiwan can add another success to the record book of its sovereign marks.
Yet, there is a catch: Such an interpretation or legislation would require the denouncement of “one country, two systems,” the very constitutional foundation of Hong Kong autonomy. It is true that Taiwan and Hong Kong have engaged with each other under constructive ambiguity since 1997. In this way, Hong Kong has liaised with Taiwan without confronting the latter with the one China principle mandated by Beijing, while Hong Kong (as well as Macau) has been granted a special and favorable status under Taiwan law, setting the former apart from its Chinese motherland. Unfortunately such ambiguity is not existent under Hong Kong’s existing extradition law. Either Taiwan is a part of China and thus no extradition arrangement is permissible between it and Hong Kong, or Taiwan constitutes no part of China and can enter into an extradition agreement with Hong Kong.
By insisting on a bilateral extradition arrangement under Hong Kong’s existing law or some bespoke legislation, Taiwan is demanding the Hong Kong government to come to terms with its sovereign claim in defiance of Beijing’s stance on the question of Taiwan. As Hong Kong is subject to Beijing’s decisions on matters of sovereignty under the framework of “one country, two systems,” subscribing to Taiwan’s demand would mean Hong Kong’s denouncement of that underlying framework, undermining the constitutional architecture of the rule of law and political autonomy in Hong Kong. This would be a godsend to Beijing as Hong Kong would be guilty of disavowing the guarantees resting on the arrangement of “one country, two systems.” And thus Taiwan would be the accidental accomplice to China in bringing Hong Kong’s autonomy to an end.
Coda: Self-Assertion Without Self-Projection
Hong Kongers’ resistance against the China extradition bill has inspired democratic movements around the world. In the face of Beijing’s new isolation policy vis-à-vis Taiwan, the government and democratic activists in Taiwan have also been reinvigorated by Hong Kongers’ intrepidity. Taiwan has answered Hong Kongers’ calls for international support loud and clear.
Yet, as the rallying call “Support Hong Kong Protect Taiwan” indicates, Taiwan does not stand behind Hong Kongers without having an eye on its own national interest. There is nothing wrong with this realist stance. Taiwan would be wrong-headed to lend unreserved support to Hong Kongers’ resistance against the extradition bill without taking its own sovereign wrangling with Beijing into account. To consolidate its de facto independence, Taiwan has every reason to add up its sovereign marks by continuing to assert criminal jurisdiction over extraterritorial crimes and fugitives. Yet Taiwan has no moral grounds to expect Hong Kong to contradict its own identity by subscribing to extrajudicial renditions or to unnecessarily provoke Beijing by denouncing “one country, two systems.” After all, Taiwan itself has chosen to live under a Chinese constitution for fears of giving Beijing an excuse to use force.
To deflect Beijing’s increasing political pressure for peaceful unification under the terms of “one country, two systems,” it is strategically sensible for Taiwan to cheer on that framework’s downfall in Hong Kong. Nevertheless, Taiwan can continue to assert itself vis-à-vis China without projecting its own stance onto other places facing China’s growing pressure. Taiwan should learn from its own shifting reactions amidst the storm of Hong Kong’s China extradition bill.
Dr. Ming-Sung Kuo is an associate professor of law at University of Warwick, U.K.