【明報專訊】IN response to the controversy over the proposed amendment of the Fugitive Offenders Ordinance, quite some alternative proposals have been suggested by people from various sectors of Hong Kong. Among them, the suggestion that "Hongkongers being tried in Hong Kong" has received the most attention. But the government regards that idea as unfeasible and insists its current plan is desirable. Society's uneasiness about the amendment plan boils down to Hong Kong people's lack of confidence in the judicial system of the mainland. It is a political problem that truly exists and must be faced squarely. While the idea of "Hongkongers being tried in Hong Kong" can address the confidence issue, there are indeed many obstacles to its implementation and further thoughts and discussions are needed to that end. However, if one says "Hongkongers being tried in Hong Kong" will bring about fundamental changes to the legal system, the current amendment proposed by the government also means altering the existing law and institutions significantly. The authorities should not rush the bill through hastily. What is more suitable is to deal with the murder case that happened in Taiwan first, delaying the issue of improving the system until the second stage.
Grenville Cross, former director of public prosecutions, said recently that the handover of fugitive offenders from Hong Kong to the mainland, Macao and Taiwan is impossible under the existing system and it is necessary to plug the loophole. Legally speaking, there is a point in Cross's remark. But viewing the issue from the political perspective, the problem of Hong Kong people's confidence that the amendment of Fugitive Offenders Ordinance touches on is also something that cannot be ignored. The issue of Hong Kong people's confidence and trust is political by nature. Cross said the mainland's judicial system has improved a lot in recent years and Hong Kong society does not need to be "over-worried". However, Hong Kong people's lack of confidence in the mainland's judicial system is a political reality that objectively exists. To a large extent, the judicial protection provided by "one country, two systems" and the Basic Law for Hong Kong people is also for the sake of dispelling Hong Kong people's doubt about and fear of possible extension of the mainland's judicial arm to Hong Kong. If the extradition law amendment fails to reflect public concern, it may affect the public's confidence in "one country, two systems".
Aiming to find a way out, some from the legal and political sectors have offered counter-proposals for the amendment plan. An example is the advocacy of the principle of "Hongkongers being tried in Hong Kong", which suggests that if a non-local fugitive absconds to Hong Kong after committing crimes in the mainland, the Chief Executive and the local courts can be authorised to decide whether to "surrender" that person to the mainland or not. But cases involving any Hongkongers should be heard by Hong Kong courts. However, citing the problem of the backdating of criminal charges and the impossibility to deal with the Taiwan murder case, the government has dismissed all the alternative proposals as unfeasible in practice.
Albert Chen Hung-yee, a member of the Basic Law Committee and University of Hong Kong law professor, recently published an article on the topic of fugitive transfer. The government said "Hongkongers being tried in Hong Kong" will bring about a fundamental change to the local legal system and is therefore undesirable. But according to Chen's study, the government's amendment proposal will in effect establish a new set of extradition mechanisms and bestow immense power on the Chief Executive concerning extradition matters. This will also be a fundamental change to existing laws. If the government thinks "Hongkongers being tried in Hong Kong" may set off a chain reaction and affect the whole situation, the proposed amendment of the Fugitive Offenders Ordinance will also involve major changes. If the government is to adhere to the same principle, it should not act hastily in this case either.
The authorities often insist that the purpose of amending the ordinance is to handle the Taiwan murder case and to plug legal loopholes. However, it is largely debatable whether the two things have to be done at the same time. If the government deals with the Taiwan murder case first and takes its time to study at length how to plug the loopholes later, it will be able to fulfil the need of serving justice immediately and sort out the problem of confidence and trust in a well-thought-out manner.
明報社評 2019.05.08﹕兩階段處理逃犯問題 替代方案可從長計議
boil down to sth﹕If a problem boils down to A, A is the main reason for the problem.
abscond﹕to escape secretly without permission
bestow sth﹕to give sth such as power or an honour