Can the majority hold? Perhaps not. It’s still an open question. The majority, in this case, refers to Hong Kong’s Legislative Council (LegCo) pro-business establishment and pro-Beijing loyalist councillors.
Together they occupy more than half the council’s 70 seats. A majority of those present will be necessary to pass the Hong Kong government’s controversial fugitive extradition bill, which lies at the heart of Hong Kong’s latest political crisis.
The purpose is to allow Hong Kong to transfer fugitive suspects to all jurisdictions, including mainland China, Macau, and Taiwan, with which Hong Kong has no extradition agreements. Hong Kong currently has such agreements with only 20 countries.
In fact, the number of Legislative Councilors is only 68, not 70. The council president, by convention, does not vote and “Long Hair” Leung Kwok-hung’s seat has yet to be re-filled after his final disqualification following from LegCo’s 2016 oath-taking saga. Six were originally targeted. Overall, that episode has so far led to a net loss of three seats for the pro-democracy caucus due to its subsequent special election losses.
Another vote has been lost in the person of Shiu Ka-chun. He is one of the Occupy Nine recently sentenced to eight months in prison for his role in the 2014 Occupy-Umbrella Movement. Additionally, the caucus now stands to lose two more if the Civic Party’s Tanya Chan, one of the guilty Occupy Nine leaders, recovers from surgery in time to be sentenced before the vote is taken. The third potential loss is the Democratic Party’s Ted Hui who is being prosecuted for snatching a government staffer’s mobile phone while she was using it to monitor legislators’ whereabouts in the council building.
Hui was charged with offences that can carry a lengthy prison sentence. His trial has ended, and the guilty-on-all-counts verdict was announced this week. Sentencing is scheduled for June 10, two days before LegCo is scheduled to begin its final meeting on the extradition bill. In mitigation, Hui apologised for his actions and pleaded for a non-custodial sentence so he might participate in the debate, but the judge didn’t seem very sympathetic.
These blows are all part of a concerted campaign by Beijing and the Hong Kong government, administered by a compliant Hong Kong judiciary, to purge LegCo of its most vocal pro-democracy partisans. They were elected in 2016, following the 2014 Occupy-Umbrella Movement.
That means the remaining legislators will fill just over 20 of the 68 seats, not enough to do anything more than orchestrate delaying tactics if their opponents stand united in support of the government’s fugitive extradition bill. Hong Kong government officials and Beijing’s representatives here are now playing the role of “party whips,” trying to ensure no one strays from the fold.
Yet despite its significance, the bill was carelessly drafted and badly timed, following as it does in the wake of the post-Occupy trial as well as the LegCo disqualifications. These considerations were overridden in the government’s calculations by the timing of a pending murder case in Taiwan and the demands of the victim’s grieving family for justice.
As it turns out, a one-off arrangement could easily have been devised to return the suspect to the scene of his Taiwan crime and the family needn’t have been exploited for political purposes in that way. So, the urgency was manufactured and is being followed by a new promotional argument that is just as fallacious.
Officials are now saying the bill must be passed in order to shore up the credibility and authority of Chief Executive Carrie Lam’s administration. As if somehow a piece of badly produced legislation is going to help her govern well.
The conflicted majority
Most telling and immediate of these counts concern not politics but economics: the business sector has the most to fear because of its cross-border manufacturing and investment interests. The sector’s cross-border connections represent, as they always have going back to Hong Kong’s earliest days, the foundation of its economic viability.
Despite the government’s attempt to placate concerns, with the removal of nine “white-collar crimes” from the original list of 46 extraditable offences, the business sector is still not at ease with the result. Their reasons have been well-advertised.
An unfamiliar pro-establishment voice spoke out recently to explain just how little enthusiasm there is for the government’s initiative. The voice was that of Abraham Razack (Abraham Shek), who has represented the Real Estate and Construction Functional Constituency in LegCo for almost two decades. He is a member of the Business and Professionals Alliance, which split from the Liberal Party several years ago.
As the senior-most pro-establishment councillor, he found himself at the centre of controversy after a manipulation of the rules allowed him to chair LegCo’s Bills Committee. The committee was tasked with scrutinising the fugitive extradition bill before it goes to the full council.
Seniority is supposed to decide who chairs the meeting. But the two most senior members are actually pro-democracy councillors who had been doing their best to delay the proceedings.
During a Straight Talk TVB interview on May 21, Councillor Razack came across as a mild-mannered elder somewhat bemused at having found himself in a scrum with angry democrats trying to prevent him from taking his seat as committee chairman.
He also came across as sincere in expressing his reservations about both the bill and the government’s procedures for trying to push it to a final vote before the summer recess. He said that, because he is a member of the pro-establishment caucus, he feels obliged to do his duty, even though there are many things about the bill he does not like. Whether, when the time comes, he might actually vote against it he did not say.
But he dismissed the government’s argument for urgency since it would be a simple matter to devise a solution whereby the murder suspect could be extradited to Taiwan. He also said it would be better if the government did not carry through with its threat to bypass the committee vetting stage altogether and take the bill directly to the full council for a vote, which is the current plan. But in that case, if the pro-establishment majority stands united, the bill will pass easily due to their superior numbers.
Nevertheless, he said the government’s effort had been too rushed. People were fearful because not enough had been done to explain and alleviate worries. Apparently, the whole notion of extradition has local business people on edge. He mentioned in passing the case of a former leading Hong Kong official, Patrick Ho. He had gone into the consulting business after retiring from public service.
Razack said people didn’t really understand how Patrick Ho could have ended up in a New York prison when he is not a US citizen and the crime for which he was tried and convicted in New York involved a bribery case in Africa! Apparently, Hong Kong business people are only just beginning to realise the potential consequences of their role in the globalised supply chain.
Closer to home, Razack said there are many concerns. He was diplomatic enough not to fault the mainland system of justice that would decide the fate of all extradited criminal suspects. Instead, he said only that the bill would give all power to the Chief Executive.
And can she say “no” to Beijing if they want to extradite someone, he asked. Again, he was diplomatic enough not to say what others are saying, namely, that another Chief Executive might have such courage but this one does not.
He also said Hong Kong judges would not be able to ascertain the circumstances of any given case before approving a mainland request for extradition. Hence, Hongkongers caught up in the system could not expect much protection from Hong Kong’s judiciary.
And yet again, he was diplomatic enough not to mention how the principles of prosecutorial discretion and judicial deference are now trending in the pro-Beijing executive’s favour.
Razack also noted problems with retrospective enforcement and with the remaining extraditable crimes themselves. Most critics have cited variations on the theme of bribery. Razack singled out bigamy.
He described the hypothetical case of a young man crossing the border to find work and setting up a household, after which, succeeding in business, he returns to Hong Kong, marries, and settles down to become a prosperous respected member of the community. Razack left unspoken the likely fate of such a man except to say the extradition law contains many traps and the fears raised have not been adequately addressed by its promoters.
Yet he also made another point that illustrated just how conflicted the community as a whole remains at the looming imposition of mainland-style legal proceedings. Probably, Razack has very few pro-democracy partisans among his constituents. They are mostly pro-establishment or patriotic loyalists, so all the cross-border political controversies hold no fear for them.
That must be why he said he didn’t quite understand why the government had not proceeded to reintroduce the national security legislation, shelved in 2003 after massive protests. He said Hong Kong’s Basic Law constitution, Article 23, mandated such legislation. So, surely that is the government’s more important responsibility, rather than unsettling everyone by pursuing the lesser matter of cross-border criminals.
Official whips in action
Government “sources” are claiming they have enough votes to pass the bill. But if that’s the case, why is so much effort still be exerted on its behalf?
The Ministry of Foreign Affairs office here even took the unprecedented step of holding a briefing for the international press corps. Among those attending the May 23 event were representatives from the Reuters and Kyodo news agencies, the Financial Times, CNN, and CNBC.
According to an MFA website account of the event, Deputy Commissioner Song Ru’an advised them to be “fair, balanced and objective” while nevertheless injecting “positive energy” in their reporting on the extradition law. Song also reportedly chastised “foreign forces” for interfering in China’s affairs by reporting negatively on the matter.
Beijing’s representative Liaison Office here also held a briefing, this one for leading members of Hong Kong’s pro-Beijing patriotic community. These are people who have been rewarded for their loyalty and importance by being named to represent Hong Kong as members of its National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC) delegations.
The May 17 meeting lasted nearly two hours and, Liaison Office director Wang Zhimin reportedly laid it on the line, dismissing all of the law’s critics, both local and foreign. He accused the Americans of trying to use Hong Kong as a bargaining chip in President Trump’s trade war with Beijing. And Wang accused Hong Kong democrats of trying to undermine the unity of Hong Kong’s pro-establishment camp with misleading scare stories about the bill.
Wang also shot down the proposal about trying Hong Kong citizens in Hong Kong courts for crimes committed on the mainland. He reportedly suggested it would be an admission that the mainland’s system of justice was not up to the task of trying its own citizens which is, of course, just the point. If allowed, the practice would be tantamount to granting Hong Kong extraterritorial status and infringing China’s sovereignty.
That proposal had been suggested by Legislative Councilor and NPC delegate Michael Tien and seconded by pro-Beijing academic Albert Chen. Both immediately abandoned it.
But Chen came back with another idea, namely, that Hong Kong should undertake not to extradite anyone to jurisdictions that could not guarantee a fair trial. He didn’t mention that his new idea put Hong Kong’s judges in the same awkward position as before. Chen had cited their difficulties in having to sign off on extradition warrants without being able to verify the credibility of accusations being made by Chinese authorities in any given case.
Calculating the prospects
James Tien, elder brother of Michael, was not at the Liaison Office meeting. But speaking afterwards, he said that when Beijing sends out so strong a message, the business community was bound to fall into line, although he hopes they won’t.
He called on them to remember that people have too many doubts and the next LegCo election is just 15 months away. Tien is now a Liberal Party elder and its honorary chairman. He said they will support the bill, but only if it is not retroactive, and also if it mandates a high threshold for extradition.
Calculating the prospects is difficult since many pro-business Legislative Councilors have no party affiliation and have not spoken out. But Abraham Razack’s party – the Business and Professionals Alliance – has eight seats and the Liberal Party four. As of now, all are uncommitted.
Michael Tien was a member of Regina Ip’s New People’s Party, which now has only two legislators. He left the party in 2017. She herself will most likely vote for the bill since she sees the current controversy as a repeat of her own failed struggle to promote the Tung Chee-hwa administration’s Article 23 national security legislation in 2003.
As Secretary for Security, she led the government’s campaign at that time. Her comments now suggest that her views have not changed and she remains unconcerned about transposing aspects of the mainland’s legal culture for use here.
In any case, the selection of sceptics alone represents a dozen possible, even if not likely, “no” votes. Added to the 20+ pro-democracy legislators, the combined total could spell doom for the government’s extradition bill, all of which suggests that the “sources” are bluffing. Officials have not yet secured the backing they need, which suggests further why they’re working so hard.
But 34 votes is the magic number needed. LegCo’s president – a pro-establishment reliable – can vote to break the tie. Still, beating the bushes and shouting out for Chinese sovereignty may not be enough since none of the official statements acknowledges the source of everyone’s concern, namely, the politicised draconian nature of China’s justice system.
Correction 11/6: This article was updated to reflect that Michael Tien has left the New People’s Party.
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