UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
__________________________________________
No. 97-1084
__________________________________________
United States of America
Respondent, Appellant
v.
Lui Kin-hong, a/k/a Jerry Lui
Petitioner, Appellee
__________________________________________
ON APPEAL FROM AN ORDER OF THE
UNITED STATES DISTRICT COURT
_________________________________________
BRIEF FOR LUI KIN-HONG, PETITIONER, APPELLEE
_________________________________________
Harvey A. Silverglate
BBO#462640
Andrew Good
BBO#201240
SILVERGLATE & GOOD
83 Atlantic Avenue
Boston, MA 02110
Tel (617) 523-5933
Fax (617) 523-7554
February 7, 1997
TABLE OF CONTENTS
STATEMENT ON APPELLATE JURISDICTION AND STANDARD OF
REVIEW 1
QUESTION PRESENTED 3
SUMMARY OF ARGUMENT 3
ARGUMENT 5
I. THE GOVERNMENT HAS FAILED TO REBUT THE CLEAR AND
ABUNDANT EVIDENCE IN THE TREATY'S TEXT, ITS
RESOLUTION OF RATIFICATION, AND ITS LEGISLATIVE
HISTORY THAT THE TREATY DOES NOT AUTHORIZE LUI'S
EXTRADITION FOR TRIAL AND PUNISHMENT IN THE COURTS AND
PENAL SYSTEM OF ANY SOVEREIGN OTHER THAN THE
UNITED KINGDOM 5
A. The Government's Interpretation of the Treaty
Ignores the Function and Settled Meaning of
Extradition By Treaty 6
B. The Treaty's Political Offense Provisions Clearly Demonstrate
That the Treaty Does Not Authorize
Extradition For Trial or Punishment Of a Relator
By a Sovereign Which Is Not a Party to the Treaty 7
C. The Adoption of the Senate's Declaration, in Its
Resolution of Ratification of the Supplementary
Treaty, Clearly Shows That the Treaty Does Not
Authorize Extradition of a Relator for Subjection
To Trial and Punishment Under a Sovereign Not a
Party To the Treaty 14
D. When Read In Light of The Treaty's Political
Offense Exception, the Warrant, Dual Criminality,
and Specialty Provisions Also Demonstrate That
the Treaty Does Not Authorize Extradition For
Trial or Punishment Of a Relator By a Sovereign
Which Is Not a Party to the Treaty 17
E. The Cases Principally Relied Upon By the
Government and the Magistrate Judge Do Not
Support a Conclusion That the Treaty
Authorizes Lui's Extradition 22
F. In View of the Clear Intention Expressed in
All of the Other Provisions of the Treaty,
Including its Narrowed Political Offense
Exception, That Relators May Be Surrendered
Exclusively For Trial in United Kingdom Courts,
No Contrary Inference Can Be Drawn From the
Date When the Treaty Went Into Force 25
G. The Issue Is Whether the Treaty Confers
Jurisdiction on the Courts and the Secretary
of State to Surrender Lui for Trial and
Potential Punishment Under PRC Sovereignty In
Hong Kong -- Not Whether the Treaty Prohibits It 26
H. Lui Is Not Urging this Court to Read an
Exception into the Treaty; Nor Would the Court
Be Abrogating or Violating the Treaty If It
Granted Lui's Petition 27
I. Executive Interpretation of the Treaty Cannot
Override Either the Treaty's Clear Meaning or
the Senate's Prerogative 28
J. The District Court's Interpretation of the Treaty
Is Consistent With the Hong Kong Policy Act 32
II. CONTRARY TO THE GOVERNMENT'S URGING, THIS COURT SHOULD
NOT DETERMINE WHETHER, WHEN, AND ON WHAT TERMS
EXTRADITION RELATIONS WITH POST-REVERSION HONG KONG
SHOULD CONTINUE, BECAUSE THE CONSTITUTION AND THE HONG
KONG POLICY ACT REQUIRE THOSE POLICY QUESTIONS TO BE
DECIDED BY BOTH POLITICAL BRANCHES 36
A. Extradition Policy Toward Post-Reversion Hong Kong:
The Chain of Events In the Political Branches 38
B. The President's Powers and Duties Under the Act 44
III. LUI'S CLAIMS ARE COGNIZABLE UNDER THIS COURT'S HABEAS
CORPUS JURISDICTION AND ARE NOT NON-JUSTICIABLE UNDER
THE NON-INQUIRY RULE OR TERLINDEN V. AMES 46
A. Lui's Jurisdictional Challenge Is Of
Constitutional Dimension 46
B. Adjudication of Lui's Claims Does Not Involve
Determinations Prohibited By the Non-Inquiry Rule 50
CONCLUSION 55
TABLE OF AUTHORITIES
CASES
Cheng Na-Yuet v. Hueston,
734 F.Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991) 22, 23, 25, 48
Clark v. Duckworth,
906 F.2d 1174 (7th Cir. 1990) 2
Factor v. Laubenheimer,
290 U.S. 276 (1933) 9
Fernandez v. Phillips,
268 U.S. 311 (1925) 47, 48, 49
Goldwater v. Carter,
444 U.S. 996 (1979) 45
Greci v. Birknes,
527 F.2d 956 (1st Cir. 1976) 9, 28
In re Extradition of Howard,
996 F.2d 1320 (1st Cir. 1993) 2, 6, 7, 9, 17, 51
In re Extradition of Manzi,
888 F.2d 204 (1st Cir. 1989), cert.denied, U.S. (1990) 49
Koskotas v. Roche,
931 F.2d 169 (1971) 47, 48, 49
Matter of Burt, 737 F.2d 1477 (7th Cir. 1984) 49
Matter of Extradition of Tang Yee-Chun,
674 F. Supp. 1058 (S.D.N.Y. 1987) 22, 25, 48
Minor v. United States,
396 U.S. 87 (1969) 12
Oen Yin-Choy v. Robinson,
858 F.2d 1400 (9th Cir. 1988),
cert. denied, 490 U.S. 1106 (1989) 22, 23, 25, 48
Plaster v. United States,
720 F.2d 340 (4th Cir. 1983) 49
United States v. Rauscher,
119 U.S. 407 (1886) 6
Sabatier v. Dabrowski,
586 F.2d 866 (1st Cir. 1978) 29
Terlinden v. Ames,
184 U.S. 270 (1902) passim
CONSTITUTIONAL PROVISIONS
United States Constitution, Article II, Section 2 passim
United States Constitution, Amendment 5 passim
STATUTES
28 U.S.C. § 2241(c)(3) 1, 2, 4, 46, 47, 49, 50
28 U.S.C. § 2253 1
18 U.S.C. § 3184 24, 46, 47, 48
18 U.S.C. §3186 24, 46
Hong Kong Policy Act, 22 U.S.C. § 5701, et. seq. passim
TREATIES & CONVENTIONS
Extradition Treaty Between the Government of the United
States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland,
June 8, 1972, 28 U.S.T. 227 passim
Supplementary Treaty Between the United States of
America and the United Kingdom of Great Britain and
Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 passim
MISCELLANEOUS AUTHORITIES
Excerpts of Supplementary Extradition Treaty
Between the United States and the Kingdom of Great
Britain and Northern Ireland: Hearing Before the
Senate Comm. on Foreign Relations, 99th Cong.,
1st Sess. (1985)
(statement of Abraham D. Sofaer, Legal Advisor,
Department of State) 11
99th Cong., 2d Sess., 132 Cong. Rec. S 9119-71
(daily ed. July 16, 1986) 12
Senate Declaration, 99th Cong., 2d Sess., 132
Cong. Rec. S 9120 (daily ed. July 16, 1986) 12, 14, 15, 21, 27
Hong Kong's Reversion to China and Implications
for U.S. Policy: Hearing Before the Subcomm. on
East Asian and Pacific Affairs of the Senate Comm.
on Foreign Relations, 102nd Cong., 2d Sess., (1992)
(prepared statement of Jamison M. Selby, Deputy
Legal Advisor, Department of State) 23, 34, 54
Arthur Conan Doyle, The Adventures of the Speckled
Band, quoted in Conners et al., Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA
Evidence to Establish Innocence After Trial (U.S.
Department of Justice, National Institute of
Justice: June 1996) 26
U.S. Department of State, United States-Hong Kong
Policy Act Report, March 31, 1995 35, 36, 39, 44
U.S. Department of State, China Country Report
on Human Rights Practices for 1996," Jan. 1997 35, 36, 39, 44
"Sense of the Senate Resolution," S.Res. 271,
104th Cong., 2d Sess., 142 Cong. Rec. S 7339
(daily ed. June 28, 1996) 37, 43
Pub. L. 104-107, Title V, § 576(b), February 12,
1996, 110 Stat. 750 41
Hong Kong Bill of Rights Ordinance, Cap. 383,
8 June 1991 (See Third Affidavit of Counsel
in Support of Jerry Lui's Amended Petition
for a Writ of Habeas Corpus, filed on 11/13/96) 42
141 Cong. Rec. S 5557 (daily ed. April 7, 1995)
(statement of Sen. Mack) 43
STATEMENT ON APPELLATE JURISDICTION AND STANDARD OF REVIEW
Lui agrees with the government that the district court has habeas
corpus jurisdiction pursuant to 28 U.S.C. § 2241(c)(3), and that this
Court has jurisdiction pursuant to 28 U.S.C. § 2253 to review the order
entered by the district court. However, no question of law other than
those decided by the district court are before this Court pursuant to §
2253. The government includes a second question (concerning "probable
cause") in its statement of issues, as well as argument concerning same at
pp. 46-50 of its brief, and the Appendix (Volume II) includes matter
relating to probable cause claims made by Lui in the district court. The
order under review expressly did not reach Lui's probable cause claims.
A. 178. Because § 2253 confers no jurisdiction upon this Court to
determine issues not covered by the district court's order, Lui's brief
does not include any substantive response to the government's probable
cause argument.
The district court's order was limited to a determination concerning
the jurisdiction of the Magistrate Judge to certify to the Secretary of
State that Lui may be extradited to the United Kingdom's Crown Colony of
Hong Kong ("CCHK") under present circumstances. Hence that court
expressly did not decide Lui's probable cause nor, indeed, his Due Process
and international law claims. A. 178. In addition to the lack of
jurisdiction to consider these claims under 28 U.S.C. § 2253, they are not
ripe for review because the factual record on these claims is voluminous
and Lui is entitled to supplement the factual record in further district
court proceedings in the event that this Court reverses. While the
parties filed legal and factual submissions concerning these claims, the
district court conducted no proceedings (neither hearings nor oral
argument) pertaining to those submissions. Accordingly, in the event this
Court were to reverse the district court's order, Lui would be entitled to
a remand for further proceedings pursuant to 28 U.S.C. § 2241(c)(3). See
Clark v. Duckworth, 906 F.2d 1174 (7th Cir. 1990).
Lui agrees (Government Brief "GB" at 4) that the district court's
interpretation of the Treaty presents a purely legal question and that
this Court's standard of review is de novo. In re Extradition of Howard,
996 F.2d 1320, 1327 (1st Cir. 1993).
The district court made fact-findings concerning the identity of the
sovereign which would try and (if he were convicted) punish Lui, as well
as the stages of, and time that would be consumed by, Hong Kong's criminal
proceedings against Lui were he surrendered to the custody of the CCHK.
A. 179-181. Though the government does argue that the district court
exceeded its jurisdiction and decided non-justiciable political questions
when it made these factual determinations, it does not claim that these
findings are erroneous. Accordingly, no question is raised concerning the
standard of review with respect to the accuracy of these fact findings,
which are therefore conclusively established for purposes of this case.1
QUESTION PRESENTED
Did the district court rule correctly that the US-UK Extradition Treaty
does not confer jurisdiction upon the Magistrate Judge to certify to the
Secretary of State that she may surrender Lui to the United Kingdom's
Crown Colony of Hong Kong, where it was established that, if so
surrendered, he would not be tried nor punished by the requesting party
under the treaty, but by a sovereign which has no extradition treaty with
the United States -- the People's Republic of China?
SUMMARY OF ARGUMENT
The government has failed to show that the Treaty's text, in light
of its resolution of ratification and its legislative history, confers
jurisdiction upon the Magistrate Judge to certify to the Secretary of
State that she may surrender Lui to the United Kingdom's Crown Colony of
Hong Kong, where it is established that, if so surrendered, he will not be
tried nor punished by that sovereign, but instead by a sovereign that has
no extradition treaty with the United States -- namely the People's
Republic of China. Before the Magistrate Judge acquires jurisdiction to
issue the certificate requested here, the Constitution's Treaty
Ratification and Due Process Clauses require the Senate, in the first
instance, to certify that it has confidence in the trustworthiness, and in
the fairness of the legal institutions, of the Hong Kong Special
Administrative Region (HKSAR) of the PRC. When read separately or
together, there is nothing in the Treaty, nor in the Hong Policy Act,
which constitutes such a Senatorial imprimatur.
The Hong Kong Policy Act was enacted nearly five years prior to Hong
Kong's reversion, in order to establish a mechanism for making appropriate
changes in US laws relating to Hong Kong, in an orderly, coordinated and
timely manner, including a possible Senate-ratified extradition treaty,
depending upon conditions and events during the period prior to, and
after, the change in sovereignty over Hong Kong. Due to the PRC's delay
in the diplomatic process, a proposed extradition treaty has yet to
receive the constitutionally required expression of the Senate's reliance
upon the PRC and Hong Kong's post-reversion legal institutions. This
Court is therefore prohibited by the Constitution from presuming a treaty-
making judgment which has yet to be made by both political branches.
According to the government, the political question concerning extradition
of persons found in the US to Hong Kong's post-reversion courts and
prisons is to be presented imminently to the Senate for evaluation in
light of current events in Hong Kong's transition to PRC rule. The
judiciary is powerless to anticipate the Senate or fill the gap.
The habeas corpus claim at issue is well within the plain meaning of
28 U.S.C. § 2241(c)(3), and is a constitutional challenge to the
jurisdiction of the Magistrate Judge to issue the requested certificate of
Lui's extraditability. The grant of habeas relief to Lui does not involve
the court in any non-justiciable inquiry or decision concerning any
question assigned to the political branches by the rule of non-inquiry
generally, nor the opinion in Terlinden v. Ames, 184 U.S. 270 (1902) in
particular.
ARGUMENT
I. THE GOVERNMENT HAS FAILED TO REBUT THE CLEAR AND ABUNDANT EVIDENCE
IN THE TREATY'S TEXT, ITS RESOLUTION OF RATIFICATION, AND ITS
LEGISLATIVE HISTORY THAT THE TREATY DOES NOT AUTHORIZE LUI'S
EXTRADITION FOR TRIAL AND PUNISHMENT IN THE COURTS AND PENAL SYSTEM
OF ANY SOVEREIGN OTHER THAN THE UNITED KINGDOM.
The government argues that the Treaty and 18 U.S.C. § 3184 authorize
American courts to certify to the Secretary of State that she may
determine whether Lui should be surrendered for trial and potential
punishment by a sovereign which is not signatory to the Treaty. Its
argument is that, if the UK's extradition request under the Treaty, on
behalf of its Crown Colony, shows on its face that Lui may be surrendered
for trial and punishment in the courts and prisons of the UK's CCHK, the
Treaty endows the Secretary with discretion to surrender Lui for trial and
punishment in the courts and prisons of a sovereign (here, the Hong Kong
Special Administrative Region of the People's Republic of China, or HK-
SAR) which is not a signatory to the Treaty. GB at 4.
In stark terms, the government's argument is that the Treaty's
standards for determining whether a person may be extradited to face trial
and potential punishment in the judicial and penal system of the United
Kingdom's colony may, if satisfied, be relied upon by the courts and the
Secretary of State as legal authority, to surrender that person for trial
and punishment by a sovereign with whom the United States has no
extradition treaty -- the PRC.
A. The Government's Interpretation of the Treaty Ignores the Function
and Settled Meaning of Extradition By Treaty.
Extradition by treaty involves more than the involuntary transfer of
a person from the territory of the United States into the custody and
territory of a requesting sovereign. In the US, extradition is granted
solely to permit the subjection of that person to trial and potential
punishment by, and under the laws of, the requesting sovereign (our
"treaty partner") in its judicial and penal system. United States v.
Rauscher, 119 U.S. 407 (1886). The government's argument is that, if met,
the standards set by the Treaty for Lui's extradition to the UK's colonial
judicial and penal system provide legal authority to surrender Lui for
trial and punishment by a sovereign other than the UK. This argument
ignores the defining premise and exchange of promises in the US-UK
Extradition Treaty: (1) It is a bilateral treaty; as such, (2) the US
agreed to standards which, if met, would oblige our government to
surrender persons in the US to the custody of the U.K. for trial and
potential punishment under U.K. law and sovereignty, and vice versa; (3)
this "rather distinctive treaty" (In re Extradition of Howard, 996 F.2d
1320, 1323) includes an integrated set of standards which are United
Kingdom-specific; and (4) by its ratification of the Treaty, the Senate
certifies its confidence in the basic fairness of the UK's legal
institutions but not those of any other sovereign.
The district court (A. 183-184) noted correctly that the Treaty's
bilateral premise and exchange of promises correspond perfectly to the
Supreme Court's definition of extradition:
...the surrender by one state or country to another of an individual
accused or convicted of an offense outside its own territory and
within the territorial jurisdiction of the other, which, being
competent to try and punish him, demands the surrender.
Terlinden v. Ames, 184 U.S. 270, 289 (1902)(emphasis supplied).
B. The Treaty's Political Offense Provisions Clearly Demonstrate That
the Treaty Does Not Authorize Extradition For Trial or Punishment Of
a Relator By a Sovereign Which Is Not a Party to the Treaty.
A prime indicator that the Treaty does not authorize the courts or
the Secretary of State to surrender Lui for trial and potential punishment
in the judicial and penal system of a non-signatory is found in the
provisions which set out exceptions to the obligation to extradite: the
so-called "political offense" provisions. The political offense
provisions are crucial, because their text and legislative history
expressly contemplate that the trial and potential punishment of a relator
must occur under the requesting Party's sovereignty. The political
offense provisions are what caused this Court in In re Extradition of
Howard, supra, to call the Treaty "rather distinctive."
Article 3(a) of the Supplementary Treaty states:
Notwithstanding any other provision of this Supplementary
Treaty, extradition shall not occur if the person sought
establishes to the satisfaction of the competent judicial
authority by a preponderance of the evidence that the request
for extradition has in fact been made with a view to try or
punish him on account of his race, religion, nationality or
political opinions, or that he would, if surrendered, be
prejudiced at his trial, or punished, detained, or restricted
in his political liberty, by reason of his race, religion,
nationality or political opinions.
(emphasis supplied). A. 26. Thus, in specified circumstances, Article
3(a) permits a judicial inquiry by the courts of the requested Party
concerning the bona fides of the requesting Party's motives in making the
extradition request and into whether the relator's proposed trial, appeal
and punishment in the requesting Party's courts and penal system would be
prejudiced by reason of his "race, religion, nationality or political
opinions."
The government does not argue affirmatively that the prosecutorial
authorities, courts and penal system which may be subjected to Article 3
scrutiny under the Treaty are intended by the parties to be the
institutions of a sovereign other than the requesting sovereign. The
district court noted correctly that Article 3 "looks to the motive of the
requesting sovereign, not some non-signatory nation." A. 187.
Rather than argue untenably that Article 3 scrutiny was
affirmatively intended to be applied to the judicial or penal system of
any sovereign other than a Treaty signatory, the government argues
negatively that "there is nothing in its [Article 3's] language that
requires the judicial officer to find a continuity of sovereignty through
trial and punishment" (GB at 17; bracketed material supplied), thereby
suggesting that Article 3 is ambiguous or can be read to mean that the
sovereign that tries or punishes the extraditee need not be the UK. In
order to resolve this issue, this Court should look to the Treaty's
legislative history, as the district court did (A. 188-190), to be certain
of the meaning of the text and the parties' intentions. Factor v.
Laubenheimer, 290 U.S. 276, 294-95 (1933); In re Extradition of Howard,
supra , 996 F.2d at 1326; Greci v. Birknes, 527 F.2d 956, 958 n.4 (1st
Cir. 1976). This Court relied upon such legislative history materials to
interpret Article 3 of this very Treaty in In re Extradition of Howard,
supra, 996 F.2d at 1331, concluding: "There is no indication that the
defense was meant as a slur upon, much less an indictment of, the British
legal system." Ibid.(emphasis supplied).
The narrowed political offense exception in the Supplementary
Treaty, as initially proposed by the President and the U.K., was amended
by the Senate during the ratification process, and the amended text was
then approved by the President and the UK. See generally, Jerry Lui's
Addendum of Legislative Materials Cited ("Add.") at 3-43. The two
principal proponents of ratification of the original version of the
Supplementary Treaty, Abraham D. Sofaer, State Department Legal Adviser,
and D. Lowell Jensen, Deputy Attorney General, relied heavily upon two
factors as a justification for departing, in the US/UK Treaty, from the
traditional and broader political offense provision found in virtually all
other American extradition treaties. The justification was based upon the
special United States-United Kingdom extradition relationship. They
argued for ratification of a narrowed political offense exception to
replace the traditional formulation on the following grounds: (1) The
proposed Supplementary Treaty would apply to the United Kingdom alone, a
stable democracy in which the political process is available to redress
legitimate grievances, and hence politically-based terrorism is not
justified; and, (2) the judicial systems of the United Kingdom and the
United States are very similar and provide a high degree of assurance that
extraditees would be fairly tried and punished:
Moreover, by using a bilateral treaty to implement this principle,
we would not alter our extradition laws across the board. Instead,
we are able to decide whether to limit the exception on a nation-by-
nation basis.
We have chosen the United Kingdom, Mr. Chairman, as our first
partner in this enterprise in part because of the recent
United States court decisions I have described. But the
United Kingdom is also an ideal nation with whom to begin this
process from the moral and political point of view. It is our
longest and closest ally. As Mr. Jensen points out in his
testimony, it was our first treaty partner to agree to an
extradition regime. The United Kingdom has one of the most
open political systems in the world. It tolerates all
nonviolent forms of dissent and allows even bitter opponents
to participate in the political system.
In addition, the British system of justice provides
fundamentally fair treatment to all, including both Republican
and Loyalist terrorists....
The Diplock courts afford defendants the essential components of
procedural fairness: Open trials, witnesses may be called and cross
examined, the prosecution has the burden of proving guilt beyond a
reasonable doubt, the defendant has the right to legal counsel and
an absolute right to appeal. One of the judges who refused to
extradite a PIRA terrorist recognized the fundamental fairness of
the judicial system used in Northern Ireland terrorist cases. I
have quoted his statement in this respect in my written testimony,
and it is instructive.
Supplementary Extradition Treaty Between the United States and the Kingdom
of Great Britain and Northern Ireland: Hearing Before the Senate Comm. on
Foreign Relations, 99th Cong., 1st Sess. 4-5 (1985) (statement of Abraham
D. Sofaer, Legal Advisor, Department of State). Add. 7.
Several Senators expressed doubt about narrowing the political
offense exception because of concern that the fairness of UK courts had
been compromised in Northern Ireland's Diplock Courts. Id at 29; Add. 18.
Mr. Sofaer addressed these reservations about the fairness of the United
Kingdom's Diplock courts by assuring the Senate that the Supplementary
Treaty was definitely not suited to extraditions for trial and punishment
in the courts and penal systems of non-democratic regimes:
Senator Dodd: ...But would you like to see this kind of
treaty adopted as a boilerplate language for all extradition
treaties around the globe?
Judge Sofaer: Absolutely not.
Senator Dodd: Why not?
Judge Sofaer: Because there are nations with whom we will not
make this kind of treaty.
Senator Dodd: Why not?
Judge Sofaer: First of all, most significantly, there are
nations where there is no open system of political opposition
and dissent. Second of all is where the system of justice is
fundamentally unfair. We would not make this kind of treaty
with those nations.
Id. at 20.2 Add. 15. Before the Senate voted, Sen. Eagleton recounted
the steps the Foreign Relations Committee took to arrive at the text
reported favorably to the floor. He explained that the narrowing of the
political offense exception was approved by the Committee expressly
because of the due process protections available to extraditees in the
United Kingdom's courts even if compromised to some degree in the Diplock
courts. 99th Cong., 2d Sess., 132 Cong. Rec. S 9119-71 (daily ed. July
16, 1986) at S 9166-7; Add. 38-39.
This legislative history shows that in all American extradition
treaties prior to the Supplementary Treaty, including the 1972 Treaty with
the U.K., the political offense exception was available to a relator as a
potential defense to a U.K. extradition request for all extraditable
offenses, including economic offenses such as bribery. This previously
unbroken tradition of broad availability of the political offense
exception reflected a recognition that a foreign government is capable of
mounting a politically abusive prosecution for any offense, be it theft,
bribery, fraud, kidnapping, or murder. However, for the first time in the
history of American extradition relations, the Supplementary Treaty with
the UK made the political offense exception completely unavailable with
respect to all but a few extraditable offenses, and made it unavailable
for economic offenses. Article 3(b) of the Treaty limits the availability
of the political offense exception, set forth in Article 3(a), to cases in
which the relator's extradition is sought for certain violent crimes and
weapons offenses specified in Article 1 of the Supplementary Treaty:3
In the United States, the competent judicial authority shall only
consider the defense to extradition set forth in paragraph (a) for
offenses listed in Article 1 of this Supplementary Treaty.
The government hoists itself on its own petard by arguing (GB at 16-
17 and 31) that the inapplicability of the political offense exception to
Lui's bribery case diminishes its significance in resolving the issues
concerning the meaning of the Treaty as a whole. America's willingness to
remove the political offense exception defense in this Treaty for
relators, such as Lui, who are sought for economic offenses such as
bribery, was predicated on the fact that relators authorized by its terms
to be extradited would be prosecuted, tried and potentially punished
exclusively in the UK's courts and penal system. Surely the Senate would
not agree to narrow the protection against political persecution in a
treaty which authorizes extraditions to PRC courts, and it made clear that
it did not in fact do so when it ratified this Treaty.
C. The Adoption of the Senate's Declaration, in Its Resolution of
Ratification of the Supplementary Treaty, Clearly Shows That the
Treaty Does Not Authorize Extradition of a Relator For Subjection To
Trial and Punishment Under a Sovereign Not a Party To the Treaty.
The Senate did not content itself with the legislative record of the
State Department's assurances that the Treaty's text would be
inappropriate for use in extraditions for trials by any non-democratic or
totalitarian regime. The Senate enacted a Declaration in its
Resolution of Ratification, which states:
The Senate of the United States declares that it will not give
its advice and consent to any treaty that would narrow the political
offense exception with a totalitarian or other non-democratic regime
and that nothing in the Supplementary Treaty with the United Kingdom
shall be considered a precedent by the executive branch or the
Senate for other treaties.
132 Cong. Rec. S 9120 (daily ed. July 16, 1986). Add. 44. The
Declaration and legislative history make it clear that, if the Senate then
had an inkling that someday the Treaty would be used to extradite people
to stand trial in PRC courts: (1) at a minimum, the Senate's Advice and
Consent would have to be sought; and (2) upon exercising its prerogative,
the Senate might decide that the safeguards against political and
discriminatory prosecution (not to mention other provisions) would have to
be completely different. See A. 190.
Contrary to the government's argument (GB at 33-34), the district
court did not label post-reversion Hong Kong as a non-democratic or
totalitarian regime. The court did fix that label on China -- just as the
State Department does every year in its Human Rights Reports (Add. 93) --
as a basic fact from which to infer that the Declaration means, at a
minimum, that by giving its advice and consent for extraditions to the
United Kingdom, the Senate has not given approval for extraditions to any
political subdivision of the PRC, including post-reversion Hong Kong.
Hong Kong is not a sovereign. At present, it is under United Kingdom
sovereignty. In a few weeks, it will be part of the PRC.4 The Senate's
Declaration certainly means that those who negotiated and ratified the
Treaty never intended it to be relied upon by the courts or the Secretary
of State to extradite Lui to Hong Kong under circumstances where he would
be subjected to trial and punishment under PRC sovereignty, without the
Senate having first having concluded that post-reversion Hong Kong will be
sufficiently different from the rest of China to warrant an extradition
relationship based on a treaty which was adopted for America's
relationship with one of the world's oldest and most stable democracies,
the United Kingdom.
The Senate's Declaration also means that the inclusion of a narrowed
safeguard against political and discriminatory prosecutions in extradition
relationships with any foreign sovereign other than the UK requires a
treaty that has been approved by the Senate. The Senate has yet to
exercise its Advice and Consent concerning treaty safeguards against
political and discriminatory prosecutions to cover trials in Hong Kong's
post-reversion courts and sentences in its prisons. Under the due process
and treaty ratification clauses, it is for the Senate to revisit
extradition policy toward Hong Kong. This will occur when the Executive
presents a proposed treaty. See Proposed Treaty attached to Affidavit of
Jamison Borek; A. 28.Clearly, the Senate demands and expects to be
consulted if the Administration wishes to apply the Treaty's provisions to
a non-democratic sovereign. Consequently, the Executive has consistently
stated, both before and after enactment of the 1992 Hong Kong Policy Act,
that it would seek Advice and Consent. See infra at 34 & 39. No such
treaty is currently in force. This Court should reject the government's
invitation to trench upon the Senate's prerogative by stretching the
Treaty beyond the breaking point merely to effectuate Lui's extradition to
face trial and punishment in Hong Kong's PRC-controlled courts and
prisons.
D. When Read In Light of The Treaty's Political Offense Exception, the
Warrant, Dual Criminality, and Specialty Provisions Also Demonstrate
That the Treaty Does Not Authorize Extradition For Trial or
Punishment Of a Relator By a Sovereign Which Is Not a Party to the
Treaty.
The government argues (GB at 12-20) for an untenable interpretation
of the Treaty, as if its political offense provision were severable from
and irrelevant to the meanings of its warrant, dual criminality and
specialty provisions. On the contrary, every treaty provision should be
interpreted consistently and coherently with every other provision.
First, the government's argument ignores the significance of the
political offense exception within the fully integrated Treaty. Article
3(a) is designed to protect a relator from being extradited if he can
prove to the extradition judge that, if surrendered, he would suffer
political or discriminatory prosecution, or abuse in the requesting
country's criminal justice system. As the Supplementary Treaty's
legislative history shows, American extradition treaties have
traditionally included a political offense exception, all the while
providing the means to assure that international fugitives be brought to
justice. This "rather distinctive treaty" must be read as a whole because
it establishes an "historic", albeit carefully delimited, "re-balancing"
of international cooperation in criminal law enforcement with the policies
underlying the political offense exception. In re Extradition of Howard,
supra at 1330.
Second, and most importantly for this case, the Treaty includes a
narrowed political offense exception. The balance between authorized
extraditions and those that are barred by the political offense exception
in this Treaty is United Kingdom-specific.
Contrary to the government's argument, the warrant clause does not
mean that process demanding the surrender of the relator for trial in the
courts of the requesting sovereign authorizes the requested Party to
surrender him for trial in the courts of any other sovereign. To read the
warrant provision in any other way is nonsensical. Such a reading would
also be inconsistent with the premise underlying the political offense
exception -- that one extradited under the Treaty is certified for trial
in UK courts exclusively.5
Similarly, there would be untenable dissonance between the Treaty's
provisions, if the dual criminality provision, which assures that the
charged offense is criminal under the laws of both treaty partners, were
to authorize extradition for trial in PRC courts. The Treaty does not
constitute America's agreement to extradite people to face bribery
charges, as the PRC might define and apply bribery law, but only to face
prosecution and punishment for bribery as the UK defines and applies its
bribery laws.6 A contrary conclusion is nonsensical and inconsistent with
the narrowed political offense exception.
The same analysis applies to the government's argument concerning
the specialty provision. According to the government, Article XII of the
Treaty has no bearing on whether the Treaty authorizes Lui to be
surrendered by the Secretary to be tried or punished by the PRC. The
government asserts that specialty protection may be waived by the
Secretary, and therefore the Secretary could surrender Lui to the PRC or
any other sovereign once he is certified as extraditable at the request of
the UK.
Such an interpretation of the Treaty's specialty provision cannot be
reconciled with a political offense exception designed to protect against
political persecution at the hands of relatively benign UK authorities.
Does it make sense to suggest, as the government has, that a relator
certified as extraditable at the request of the UK may be surrendered by
the Secretary to face the courts of a sovereign other than the UK, even
though the danger of political or discriminatory prosecution may be
entirely different than in the UK?
Under Article XII's rule of specialty, which must be read together
with the warrant, dual criminality, and political offense provisions, the
personal jurisdiction and custodial power over the relator which are
conferred upon the requesting sovereign by a surrender pursuant to the
Treaty, is conferred to allow for the adjudication of the surrendered
person's guilt solely under the criminal laws of the requesting sovereign
and, in the event of conviction, punishment in the penal system of that
sovereign alone.
Another aspect of Article XII's specialty protection requires an
express undertaking by the requesting Party that, before the relator may
be charged and proceeded against for an offense other than those for which
he certified extraditable, the requesting Party must provide him with a
30-day opportunity to return, at the conclusion of his trial or sentence,
to the territory of the sovereign from whence he was surrendered. When
read in light of the ratification history, this provision in Article XII
and the warrant requirement together establish a central element of the
Treaty, to wit: Jurisdiction and custodial power over the relator
surrendered under the terms of the Treaty are conferred by the requested
Party exclusively upon the prosecutorial and judicial arms of the
requesting party, our trusted treaty partner. It is evident that no one
intended that the Article XII specialty assurances given to the US by our
treaty partner the UK, would be transferred, by the fact of Hong Kong's
reversion to PRC sovereignty, to a sovereign that is not only not the US's
treaty partner, but is precisely the kind of non-democratic, totalitarian
sovereign that the Senate warned against in the Declaration.
Contrary to the Magistrate Judge's view (A. 229), nothing in Article
XII nor any other provision of the Treaty authorizes certification of Lui
to the Secretary so that she alone may decide, in her discretion, whether
or not to surrender Lui. The Magistrate Judge envisions such an exercise
of discretion by the Secretary, based upon her unilateral determination
that, among other things, the PRC -- a sovereign which is neither the
requesting Party nor even a signatory to the Treaty -- would nonetheless
abide by Article XII and the rule of specialty. However, in the instant
case it is conclusively established that if Lui were surrendered to Hong
Kong, he would be tried and, if convicted, punished by the PRC (A.
126-128, 238-243). Nowhere does the Treaty's text or legislative history
authorize a relator's surrender to Hong Kong for such a trial and
punishment.7
E. The Cases Principally Relied Upon By the Government and the
Magistrate Judge Do Not Support a Conclusion That the Treaty
Authorizes Lui's Extradition.
In determining that the Treaty authorizes Lui's extradition, the
Magistrate Judge relied heavily upon Oen Yin-Choy v. Robinson, 858 F.2d
1400 (9th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Cheng Na-Yuet v.
Hueston, 734 F.Supp. 988 (S.D. Fla. 1990), aff'd, 932 F.2d 977 (11th Cir.
1991); and Matter of Extradition of Tang Yee-Chun, 674 F. Supp. 1058
(S.D.N.Y. 1987), as does the government. None of these cases support the
Magistrate Judge.
First, none of those Courts were aware of the evidence presented
here that several provisions of the Treaty (not just Article XII), when
read in light of the history of its adoption, require the conclusion that
the Treaty does not authorize Lui to be extradited to Hong Kong in
circumstances where he would be subjected to trial and punishment in the
judicial and penal systems of the PRC.8 To the extent the Oen and other
Courts addressed the issue of whether a relator may be surrendered to Hong
Kong even though his potential sentencing exposure extended beyond the
reversion date, these courts wrongly inferred that, because the 1984 Joint
Declaration was known to exist at the time that the Supplementary Treaty
was ratified in 1986, the parties to the Treaty impliedly authorized
relators extradited under the Treaty to be subject to the PRC penal
system. See Oen, 858 F.2d at 1404; Cheng 734 F.Supp. at 993 (quoting
Oen). This conclusion is clearly in error in the face of the actual
record made at the time of the Treaty's adoption.9 Further, as the record
surrounding the subsequently enacted Hong Kong Policy Act shows, the
United States had not yet determined whether the PRC would implement its
undertakings under the Joint Declaration, and the only thing that was
known as late as 1992 about American treaty relations (including
extradition relations) with post-reversion Hong Kong was that American and
PRC intentions remained unknown. See Hong Kong's Reversion to China and
Implications for U.S. Policy: Hearing Before the Subcomm. on East Asian
and Pacific Affairs of the Senate Comm. on Foreign Relations, 102nd Cong.,
2d Sess., 17 (1992) (prepared statement of Jamison M. Selby, Deputy Legal
Advisor, Department of State) quoted infra at 33-34.
Contrary to the government's argument (GB at 19-20), America's
extradition treaties and laws have never been interpreted and applied as
if they authorize the Secretary to do anything which is not expressly
prohibited, to a relator who has been certified extraditable. A person is
determined to be extraditable with respect to only certain offenses and
may be surrendered by the Secretary for trial and punishment exclusively
by the requesting sovereign. Under the Treaty and the extradition
statutes, 18 U.S.C. §§ 3184 and 3186, a person is not certified
extraditable on terms which confer on the Secretary exclusive and
unlimited discretion to surrender the relator for trial and punishment by
any sovereign whose criminal justice system enjoys the Executive's
confidence, even if that sovereign is not a treaty partner.10
F. In View of the Clear Intention Expressed in All of the Other
Provisions of the Treaty, Including its Narrowed Political Offense
Exception, That Relators May Be Surrendered Exclusively For Trial in
United Kingdom Courts, No Contrary Inference Can Be Drawn From the
Date When the Treaty Went Into Force.
Undaunted by the evidence that the Treaty does not authorize the
instant extradition, the government argues (GB at 20-21) that, because the
reversion event was known at the time the Treaty was ratified and made
applicable to Hong Kong, the absence of a provision expressly prohibiting
extraditions to HK-SAR courts supports an inference that the Treaty
authorizes extradition of Lui for trial and punishment in the PRC. Yet
the record is replete with evidence that rebuts any such inference.11
G. The Issue Is Whether the Treaty Confers Jurisdiction on the Courts
and the Secretary of State to Surrender Lui for Trial and Potential
Punishment Under PRC Sovereignty In Hong Kong -- Not Whether the
Treaty Prohibits It.
The government would prefer this Court to avoid inquiring whether
the Treaty authorizes Lui's extradition for trial in PRC-controlled Hong
Kong, because a negative answer to that inquiry is overwhelmingly proven
by the evidence. The government wants to deflect the Court from inquiring
whether the Treaty authorizes Lui's extradition, by asking the Court to
determine instead whether the Treaty expressly prohibits Lui's
extradition. The government's effort to reverse the question presented
fails for two reasons.
First, when American courts consider jurisdictional and similar
questions concerning the existence and scope of government power to
deprive persons of liberty, it must show that its power is expressly
established by law. Ours is a government of limited powers, and one set
of limitations is contained in the Due Process Clause of the Fifth
Amendment. The existence of government power to extradite Lui for trial
in the PRC cannot be inferred as urged by the government. Such power must
be expressly conferred upon the Magistrate Judge and the Secretary by a
Senate-ratified treaty with the PRC. To frame the question by asking
whether any law, including the Treaty, expressly prohibits Lui from being
extradited for trial and punishment in the PRC is to ignore the
fundamental premise of our free society: A government of limited powers
which may deprive persons of liberty only by Due Process of Law.
The issue in this case is: Does the Treaty authorize Lui to be
certified as extraditable for trial and potential punishment by a
sovereign other than United Kingdom? The question is not: Does the
Treaty expressly prohibit such an extradition?
Second, even if the issue were framed to inquire whether the U.K.
Treaty prohibits extradition of a relator for trial and punishment in the
PRC, Lui is entitled to habeas relief, because the Senate enacted a
Declaration in its Resolution of Ratification which affirmatively
prohibits the use of the Treaty, without the Senate's approval, to
extradite anyone for trial or punishment in PRC courts.
H. Lui Is Not Urging this Court to Read an Exception into the Treaty;
Nor Would the Court Be Abrogating or Violating the Treaty If It
Granted Lui's Petition.
In its brief the government argues that by granting Lui's petition
this Court would effectively "abrogate" the Treaty. The government
accuses the district court of reading an "exception" into the Treaty which
would exclude extraditions of persons to face trial in PRC courts. To the
contrary, the evidence is overwhelming that the Treaty does not authorize
the surrender of persons for trial or punishment in Hong Kong's PRC
courts. Moreover, the Senate's Declaration affirmatively prohibits the
use of its provisions for such a surrender without a new treaty ratified
by the Senate. Similarly, the government argues that the Court would
"violate" the Treaty were it to grant Lui's petition. To the contrary,
extradition of Lui at the request of the UK, which would subject him to
trial and punishment in PRC courts, would violate the Treaty. Because
Lui's continued incarceration is predicated on a violation of the Treaty,
the extradition laws, and the Constitution, he is entitled to habeas
corpus relief.
I. Executive Interpretation of the Treaty Cannot Override Either the
Treaty's Clear Meaning or the Senate's Prerogative.
The government admonishes the Court to heed the executive's
interpretation of the treaties the Secretary is charged with implementing,
and argues that "while not conclusive," such interpretation "must be given
considerable weight, and will be controlling unless contrary to the plain
language of the treaty." (GB at 39). The government concedes that
executive interpretation is not the final word, since this Court has so
held. Greci v. Birknes, 527 F.2d 956 (1st Cir. 1976). However, if one
indeed gives "considerable weight" to the executive's interpretation, then
it is clear that the US/Hong Kong extradition relationship governing
trials in the post-reversion era requires Senate ratification, since the
executive has stated to the Congress and to the Senate, time and again,
that the US/UK treaty will have to be replaced by a new treaty (Add. 74),
and the executive has confirmed that it would submit the new treaty for
ratification.12
This Court has noted that executive interpretation and practice are
to be given weight in interpreting treaties, along with such factors as
"the history of the relations between the two countries, the terms of the
current extradition treaty, the official position of the Department of
State, and the relevant rules of law." Sabatier v. Dabrowski, 586 F.2d
866, 869 (1st Cir. 1978). It is established that, if Lui were
surrendered, he would be tried and potentially punished by the PRC. The
history of relations between the US and the PRC, insofar as extradition is
concerned, is crystal clear: We have never had an extradition treaty with
China. As for the "terms of the current extradition treaty," as we have
argued here, the Senate that ratified the US/UK treaty made it clear that
it was an inappropriate vehicle for extraditions to the courts of any
other sovereign, particularly a non-democratic, authoritarian sovereign.
The "official position of the Department of State," as noted, is that
extradition to post-reversion Hong Kong would require a new Senate-
ratified treaty. Finally, the phrase "relevant rules of law" surely must
include the Advice and Consent Clause, since the Constitution is an
extraordinarily "relevant rule of law" when it comes to apportioning power
between and among the branches of government.
This Court was on firm footing in noting the importance of "relevant
rules of law." In the only case in which the Supreme Court has opined on
the subject, the Court noted the relevance of the practice of the two
treaty partners. In Terlinden v. Ames, 184 U.S. 270 (1902), the issue was
whether the US extradition treaty entered into with a predecessor
component of the German Empire was still in force and effect by the time
the Empire subsumed the earlier entities with which the US had such
treaties. The Court noted that the "convention in question is regarded as
in force both by the United States and by the German Empire," and it
considered the interpretation, understanding, and practice by the two
sovereigns to be of importance in the judicial interpretation of the
treaty.
However, the government derives no support from Terlinden,
notwithstanding a brave effort in its brief. (GB at 5, 25-26). In the
first place, the predecessor entity which ultimately was melded into the
German Empire was a treaty partner of the United States. The Court
described the historical process by which the Empire was formed as one of
"absorption" (184 U.S. at 283) and the creation of a "composite" state
(184 U.S. at 285). "It does not necessarily follow," concluded the Court,
"that the Kingdom of Prussia [with which the U.S. had an extradition
treaty] lost its identity as such." (184 U.S. at 285) As the district
court correctly ruled, Hong Kong's reversion to the PRC is quite
different. Hong Kong was never a sovereign, as was Prussia. Hong Kong
was a colony, under UK sovereignty, and, shortly, will become part of the
territory of a different sovereign -- the PRC. Thus, Terlinden does not
help the government's position.
Furthermore, the Court in Terlinden, in delineating the proper
spheres for the executive and judicial branches, respectively, stated:
"The treaty is therefore a law made by the proper authority, and the
courts of justice have no right to annul or disregard any of its
provisions, unless they violate the Constitution of the United States."
184 U.S. at 288 [emphasis added]. Only after noting the controlling role
of the Constitution, and of the branch charged with constitutional
interpretation and enforcement, did the Court proceed to the language
concerning the primacy of the "Executive Department of the government to
conduct our foreign relations." "The decisions of the Executive
Department in matters of extradition, within its own sphere, and in
accordance with the Constitution, are not open to judicial revision," and
only when the executive acts "regularly and constitutionally...under the
acts of Congress" is judicial intervention "by writs of habeas corpus"
inappropriate. Id. at 289 [emphasis added].
The Secretary of State will have an enormous amount of leeway, to be
sure, in managing an extradition relationship between the US and the HK-
SAR -- once two-thirds of the Senate agree that such a relationship should
be put into place. Until that political decision is made by the Senate,
this Court may not be enlisted to provide a judicially-fashioned deus ex
machina to provide the Department of Justice with an unauthorized and
unconstitutional extradition relationship with its counterpart in Hong
Kong. By affirming the district court, this Court would not be destroying
an extradition relationship; it would simply be refusing to usurp the
Senate in creating one.
J. The District Court's Interpretation of the Treaty Is Consistent With
the Hong Kong Policy Act.
The government claims (GB at 34-35) that the district court's
interpretation of the Treaty is "at odds" with the Hong Kong Policy Act,
since the Act expresses "support" for the Sino-British Joint Declaration.
However, by declaring "its wish to see full implementation of the
provisions of the Joint Declaration" in 22 U.S.C. § 5701(2)(emphasis
supplied), Congress did not state that China had or would implement its
terms. Neither did the President make any such statement in 22 U.S.C. §
5701(3). Read as a whole, the Act establishes a mechanism which requires,
where constitutionally required treaty-making is involved (as in
extradition relations), decision-making by both political branches
concerning the PRC's hoped-for implementation of the Joint
Declaration.
The government claims that the first sentence of § 5721(b) is a
legislative determination that the existing UK Treaty authorizes
extraditions to courts and prisons under PRC sovereignty, or even that
such extraditions should continue after reversion, "where possible." GB at
35. The government's argument suffers from three defects.
First, the first sentence of § 5731 does not carry the meaning
ascribed to it by the government. As the district court correctly ruled,
"the Act is only evidence that Congress supports the continuation of
treaties with Hong Kong according to their own terms." A. 196 (emphasis in
original). The Treaty does not authorize extraditions of persons whose
surrender would subject them to the custody of courts and prisons under
PRC sovereignty, and the first sentence does nothing to change that.
Second, the government quotes part of a sentence from the Act's
legislative history (GB at 35) -- "the most important existing agreement
that was concluded as a treaty" -- to misleadingly suggest that the UK
Extradition Treaty, above all others, would likely remain in force beyond
the reversion date because of the importance of extradition. The
Legislative history states that exactly the opposite is true. The phrase
misleadingly quoted by the government is part of an answer the State
Department's Legal Adviser gave to the following question put by the
Senate Committee on Foreign Relations: "Will pre-1997 international
agreements between the U.S. and Hong Kong continue in force after July 1,
1997?" The State Department replied:
Answer: Under ordinary rules of international law, when part of the
territory of one state becomes territory of another state, the
international agreements of the predecessor state cease to have
effect in respect of that territory and the international agreements
of the successor state come into force there. Under these
principles, unless the United States and the PRC agree to a
different rule, all U.S. bilateral agreements that now apply to Hong
Kong will cease to do so after reversion, and U.S.-P.R.C. agreements
will then begin to apply in Hong Kong.
The Joint Declaration and the Basic Law (the PRC statute that
implements the Joint Declaration) provide that international
agreements to which the PRC is not a party but which are implemented
in Hong Kong "may remain implemented in the Hong Kong Special
Administrative Region." This suggests that the PRC may intend for
some of our current agreements to continue in force. We are
reviewing this issue, but have not yet reached a firm understanding
of either the process to be followed or which agreements merit
retention.
Whether U.S. bilateral agreements currently applied in Kong
could continue in force without new legislation would depend on a
case by case analysis of the authority on which each agreement was
concluded. Most of the bilateral U.S.-U.K. agreements that now
apply to Hong Kong were concluded as executive agreements and, we
believe, could be continued in force -- assuming international legal
issues are resolved -- without new legislation. With respect to the
most important existing agreement that was concluded as a treaty--
on extradition -- we are now negotiating with the Hong Kong
Government on a new treaty, to replace the existing U.S.-U.K.
agreement, which would continue in force after reversion to the PRC.
Consistent with U.S. practice in the extradition area, we intend to
seek Senate advice and consent to such a treaty if negotiations are
successful.
[government-quoted phrase bolded] Hong Kong's Reversion to China and
Implications for U.S. Policy: Hearing Before the Subcomm. on East Asian
and Pacific Affairs of the Senate Comm. on Foreign Relations, 102nd Cong.,
2d Sess., 17 (1992) (prepared statement of Jamison M. Selby, Deputy Legal
Advisor, Department of State). Add. 49. In reality, the legislative
history states that some bilateral agreements, such as certain executive
agreements with the Crown Colony, could remain in force post-reversion,
provided that the PRC agrees. However, important treaties, such as the UK
extradition treaty, will lapse upon reversion, and a new treaty will have
to be negotiated and submitted for Senate ratification. The district court
properly cited and quoted from this same legislative history in rejecting
the government's Hong Kong Policy Act arguments and in reaching the
following conclusion concerning the Act:
It is apparent, therefore, that Congress passed the Act with the
understanding that any extradition to China for trial and punishment
would require the approval of a new treaty with Senate advice and
consent.
A. 195-196.
Third, the government's argument concerning the Act ignores the last
sentence of § 5721(b), which states:
If in carrying out this subchapter, the President determines that
Hong Kong is not legally competent to carry out its obligations
under any such treaty or other international agreement, or that the
continuation of Hong Kong's obligations or rights under any such
treaty or other international agreement is not appropriate under the
circumstances, such determination shall be reported to the Congress
in accordance with section 5731 of this title.
[emphasis supplied].
In the President's Hong Kong Policy Act Report dated March 31, 1995,
Congress was informed that, as of that date, an extradition treaty had
been initialled by the PRC and the United States, and that, after the
parties formally sign the proposed treaty, it would be submitted for
Senate ratification. A. 260. The President's report was issued pursuant
to §§ 5721(b) and 5731 of the Policy Act, and for that reason it
constitutes a determination by the President as to whether it would be
appropriate for the existing US-UK extradition treaty to continue beyond
the reversion date. By reporting that a new treaty would be submitted for
ratification, the President effectively and unambiguously determined that
"the continuation of Hong Kong's obligations or rights under any such
[extradition] treaty ... is not appropriate under the circumstances.... §
5721(b)(bracketed word and emphasis supplied). See also § 5731(5)(Report
must itemize "treaties and other international agreements with respect to
which the President has made a determination described in the last
sentence of section 5721(b)..." (emphasis supplied)).
The President's 1995 Hong Kong Policy Act Report is not mentioned in
the government's brief because it directly contradicts its erroneous
assertion that, by enacting the Act, Congress and the President stated and
agreed that the existing Treaty (with its narrowed political offense
provision) should continue in force through and beyond the reversion date.
The reality is that both the President and the Congress have always
agreed to just the opposite extradition treaty policy -- the existing
Treaty does not authorize, and is not appropriate for, extraditions of
persons to PRC courts and prisons, and the President has stated that it
will take a new, Senate-ratified extradition treaty with the PRC for that
to occur. Unanticipated delays and obstacles encountered by the executive
in obtaining Senate ratification do not justify the judiciary's filling in
the gap.
II. CONTRARY TO THE GOVERNMENT'S URGING, THIS COURT SHOULD NOT DETERMINE
WHETHER, WHEN, AND ON WHAT TERMS EXTRADITION RELATIONS WITH
POST-REVERSION HONG KONG SHOULD CONTINUE, BECAUSE THE CONSTITUTION AND
THE HONG KONG POLICY ACT REQUIRE THOSE POLICY QUESTIONS TO BE
DECIDED BY BOTH POLITICAL BRANCHES.
Having failed to show, by reference to its text, resolution of
ratification, or legislative history that the UK Treaty reflects the
Senate's imprimatur of faith in the fairness and humane treatment that
will be afforded by PRC courts and prisons in post-reversion Hong Kong,
the government claims nonetheless that the courts are empowered to certify
that the Executive alone may determine what impact Hong Kong's reversion
to China should have on extraditions to Hong Kong's post-reversion
criminal justice system, including Lui's extradition. ("...the reversion
issue should be left for the Secretary of State to consider, who alone has
the tools and the power to evaluate this issue and to take whatever
action, if any, is appropriate..." (GB at 27, emphasis supplied) The
treaty ratification and due process clauses as well as the Hong Kong
Policy Act require this Court to insist that extraditions to post-
reversion Hong Kong be certified for the Secretary's action only after the
Senate has exercised its power of Advice and Consent.
As will be detailed below, the complex policy issues involved in
whether, and on what terms, there should be continuity in extradition
policy toward post-reversion Hong Kong present political questions likely
to become extremely controversial in the Senate in the immediate future.
By amending the Hong Kong Policy Act in 1996, Congress insisted that
Senate prerogatives be respected. The amendment required more detailed
Presidential reporting under the Act concerning China's implementation of
the Joint Declaration. The newly-required additional reporting is highly
pertinent to the Senate's impending decision whether Hong Kong's post-
reversion legal institutions and criminal justice system merit continued
extradition relations. Further, the Senate has been actively expressing
its views as a legislative body concerning China's apparent non-compliance
with the Joint Declaration, as in its 1996 "sense of the Senate"
resolution. See infra at 43. Add. 86.
The extradition policy question presented by this case has yet to
reach the Senate because the submission of a proposed treaty has been
delayed by an unexpectedly prolonged diplomatic negotiation with the PRC.
For purposes of deciding this case, however, it is clear that the
extradition magistrate and the Secretary, aided by the courts, may not
certify and then surrender Lui for post-reversion trial and punishment in
the territory of Hong Kong without the constitutionally required Advice
and Consent of the Senate. Upholding the government's appeal would be to
arrogate to the judiciary and the executive a decision concerning
extradition policy toward post-reversion Hong Kong, which the Constitution
commits in the first instance to both political branches.
A. Extradition Policy Toward Post-Reversion Hong Kong: The Chain
of Events In the Political Branches.
The Hong Kong Policy Act became law on October 24, 1992. It
establishes a mechanism which was to be used during the nearly five-year
period leading up to the reversion to make whatever legal changes were
necessary by reason of that anticipated event. It was recognized that
some of the legal changes would involve purely executive action, and
others would require the participation of both political branches. To the
extent that circumstances would warrant and permit, these changes were to
be put in place and ready to come into effect on the reversion date.
In order to aid the Senate in this process, Section 301 of the Hong
Kong Policy Act (22 U.S.C. § 5731) requires periodic Presidential
reporting to Congress concerning, inter alia:
(1) significant developments in United States relations with Hong
Kong, including a description of agreements that have entered into
force between the United States and Hong Kong;
(2) other matters, including developments related to the change in
the exercise in sovereignty in Hong Kong or United States relations
with Hong Kong;....
As previously noted, the President's March 1995 Hong Kong Policy Act
Report stated that a new extradition treaty applicable to post-reversion
Hong Kong would be required and was being negotiated. That report states
in pertinent part (Add. 74):
In July 1994, the U.S. and Hong Kong initialed a new
extradition treaty to apply to the HKSAR in the period following
1997. This agreement awaits final PRC approval in the Sino-British
Joint liaison group (JLG). This agreement will then be submitted to
the U.S. Senate for ratification.
Though a proposed treaty was initialled and submitted for PRC approval in
the Joint Liason Group in July 1994, it was not approved in that body for
nearly 2 1/2 years, and was not signed until December 20, 1996. The
proposed treaty is still awaiting transmittal by the President to the
Senate for ratification. Declaration of Jamison Borek ¶2; A. 24.
The delay in treaty-making which would authorize extraditions to
Hong Kong's post-reversion courts and prisons has created the obstacle to
Lui's extradition. The Act clearly contemplates that, if possible, the
question of extradition relations with post-reversion Hong Kong's courts
and prisons would be resolved by a ratification debate that would result
in a treaty (if one be ratified at all) which would be in place prior to
the reversion date, but ready to come into force on July 1, 1997.
Thereafter, the President would monitor post-reversion events, and if he
were to observe that China is not allowing Hong Kong its promised
autonomy, he would have the power, and the expressed support of Congress,
to terminate the treaty or treaties any time "on or after July 1, 1997."
22 U.S.C. § 5722(a). The ratification of such a treaty or treaties well
in advance would have closed any gap that otherwise was destined to
appear, for such a treaty would have been an expression of the Senate's
power to declare that extraditions to the Hong Kong SAR's courts and
prisons had its imprimatur. This would, of course, have precluded any
argument, such as Lui makes here, that a pre-reversion extradition request
that would result in a post-reversion trial was not authorized. Instead,
China's extraordinarily long delay in initialling a draft post-reversion
treaty caused the executive to fail to submit a treaty to the Senate in a
timely manner; indeed, that initialled treaty has not yet been submitted
for ratification, and reversion is almost upon us.
Thus was a twilight zone created, into which Jerry Lui fell. As a
result, the executive branch finds itself without Senatorial authorization
for pre-reversion extraditions for post-reversion trials. In the absence
of such authorization from its co-equal political branch, it seeks the aid
of its co-equal judicial branch. The government's problem, of course, is
that Article II, § 2 of the Constitution has not allocated this political
judgment to the judiciary. There may well be a contest between the
executive branch and the Senate of this question -- and all signs point to
such a battle happening sooner rather than later -- but it is a contest
which neither prudence nor the Constitution entrusts to the judicial
branch.
During this period of delay (and while this case was pending), the
reporting provision of the Hong Kong Policy Act (22 U.S.C. § 5731) was
amended, on February 12, 1996. Prior to the 1996 amendment, the Act did
not require the filing of a Presidential report during 1996. Because of
the 1996 amendment, a Presidential report was required to be filed not
later than March 31, 1996. Moreover, the 1996 legislation asserts that
there were "deficiencies" in the previously submitted Presidential Reports
under the Act and requires additional detailed reporting of information:
In light of the deficiencies in reports submitted to Congress
pursuant to section 301 of the United States-Hong Kong Policy Act
(22 U.S.C. 5731), the Congress directs that the additional report
required to be submitted under such section by subsection (a) of
this section [requiring an additional report to be submitted not
later than Mar.31, 1996] include detailed information on the status
of, and other developments affecting, implementation of the Sino-
British Joint Declaration on the Question of Hong Kong, including --
(1) the Basic Law and its consistency with the Joint
Declaration;
(2) the openness and fairness of elections to the legislature;
(3) the openness and fairness of the election of the chief
executive and the executive's accountability to the legislature;
(4) the treatment of political parties;
(5) the independence of the judiciary and its ability to
exercise the power of final judgment over Hong Kong law; and
(6) the Bill of Rights.
Pub. L. 104-107, Title V, § 576(b), February 12, 1996, 110 Stat. 750
(emphasis supplied). Add. 85.
Congress's insistence upon detailed executive reporting not later
than March 31, 1997, about the independence of Hong Kong's judiciary as
well as its power of final judgment concerning Hong Kong law, and the
status of Hong Kong's Bill of Rights Ordinance (Add. 87), focusses
directly on currently fast-breaking events during Hong Kong's transition
to PRC sovereignty. It is thus highly pertinent to extradition policy
over which the Senate has pivotal control under the Constitution.
The legislative history of this amendment, which was sponsored by a
Co-Chair of the Congressional Caucus on Hong Kong, Senator Connie Mack,
shows that Congress is insisting on detailed information, which it must
receive on or before March 31, 1997, pertinent to upcoming Hong Kong
treaty ratification debates, including the impending extradition treaty
debate, because of concern over China's actions leading up to the
reversion:
The People's Republic of China's manipulation of the joint
liaison group is part of the People's Republic of China's 10-year
pattern of reneging on its commitments under the joint declaration.
Notwithstanding the recent public relations tour though the United
States by Lu Ping, Beijing's top Hong Kong official, the People's
Republic of China has repeatedly displayed its contempt for the
joint declaration. Five years ago this week, in April 1990, Beijing
codified significant deviations from the joint declaration in the
basic law, the so-called miniconstitution for post-1997 Hong Kong
that Beijing wrote and rubberstamped in its National People's
Congress. The basic law subordinates the Hong Kong Legislature to
the Beijing-appointed executive, and assigns the power of judicial
interpretation to the standing committee of the National People
[sic] Congress rather than to Hong Kong's judges. The basic law's
provisions on the legislature may become moot however, since the
People's Republic of China has promised or threatened to dismantle
the Legco and Hong Kong's two other tiers of government.
Beijing also threatens to abolish the Bill of Rights, enacted
by the Legco in 1991 in reaction to the Tiananmen Square Massacre,
and over the objections of the Hong Kong government. Finally, a
high official of the Chinese supreme court has suggested that
Beijing will replace Hong Kong's common law system, which is
synonymous with individual rights and the rule of law with a civil
law system. China's own civil law system is explicitly subordinated
to the Communist Party.
The status of plans for establishing a high court before 1997
is cause for concern as well, and here the report's brief treatment
of the issue is troubling. The details of a Court of Final Appeal,
to replace the Privy Council in London, as the territory's highest
court were agreed to in the joint declaration. The U. S.-Hong Kong
Policy Act report mistakenly accepts the 1991 agreement between the
British Government of Hong Kong and China as a basis for the Hong
Kong government's legislation implementing the court. The 1991
agreement explicitly violates the joint declaration and basic law.
Accordingly, democratic legislators plan to amend it to bring it
into accord with the joint declaration.
141 Cong. Rec., S 5557 (daily ed. April 7, 1995)(statement of Sen. Mack);
Add. 83.
Shortly after Congress amended the Hong Kong Policy Act, the Senate
on June 26, 1996 adopted a Sense of the Senate Resolution protesting that
China's intention to abolish Hong Kong's Legislative Council, which was
elected for a 4-year term expiring in 1999, and to appoint a provisional
legislature to replace the elected legislature as of July 1, 1997, "would
be a violation of the Joint Declaration." S.Res.271, 104th Cong., 2d
Sess.; Add. 86.
This chain of legislative events, the text of the Act (as amended),
and its legislative history all signify that: (1) contrary to the
government's argument, the Secretary of State has no power to act alone in
determining in the first instance whether persons found in the US may be
extradited to the PRC's courts and prisons in Hong Kong; (2) nothing in
the Hong Kong Policy Act can be relied upon as an expression of
Congressional assent to such extraditions; and, (3) the district court
ruled correctly that the Treaty, alone or in combination with the Act,
does not provide the courts with jurisdiction to certify to the Secretary
that she may surrender Lui to Hong Kong for trial or punishment under PRC
sovereignty.
B. The President's Powers and Duties Under the Act.
The government argues erroneously (GB at 35) that "[T]he Act
reemphasizes the principle of the rule of non-inquiry that it is the
Executive's role to make judgments about foreign countries and their
ability to fulfill treaty obligations." Presidential determinations under
the last sentence of § 5721(b) do not include the power to determine
whether persons found in the United States may be extradited to post-
reversion Hong Kong's courts and prisons. That power is reposed in both
political branches by the Constitution. Neither does the §5721(b)
"determination" power confer on the President the ability to amend the UK
treaty to authorize such extraditions. All that this provision does is
recognize the President's power to: (1) determine which Hong Kong-related
treaties currently in force are required by law to be replaced by new
treaties that will require Senate ratification, and report that
determination to Congress (as was done with respect to the UK extradition
treaty in the 1995 Hong Policy Act Report, as noted, supra at 39); (2)
determine and report which other international agreements (executive
agreements not requiring ratification) will be replaced, amended, or
terminated for legal or other reasons; and, (3) determine and report that
an extant treaty or executive agreement will be terminated upon reversion.
It is true that neither the Congress nor the courts have any power
under the Act or otherwise to interfere with or overrule the President's
power to terminate treaties and other international agreements, and the
statements to this effect in the Policy Act are thus simply a recognition
of settled law. See Goldwater v. Carter, 444 U.S. 996 (1979). The lack
of power in the Congress and the judiciary to participate in executive
decisionmaking concerning the termination of such treaties and agreements
in no way prevents courts from exercising their habeas jurisdiction to
determine whether a request made under an existing treaty is authorized by
its terms.
The obstacle faced by the government is that Lui's claims do not
involve treaty termination, but rather enforcement of the Treaty's
requirement that a relator extradited under its terms be tried solely
under UK sovereignty. What the government is lacking is a clear
expression from the Senate in the form of a treaty which authorizes
extraditions to post-reversion Hong Kong. Treaty ratification is a very
specific genus of legislative activity. When the Senate goes about the
task of giving its Advice and Consent to a treaty proposed by the
executive, there is no doubting the nature of the activity, and there is
no misreading the outcome: a treaty is voted either up or down. Nowhere
in the Act can one find anything resembling treaty ratification. In the
absence of such authorization, any decision to extradite someone in Lui's
position to Hong Kong for trial and punishment under PRC sovereignty is
unauthorized by law and usurps Senatorial authority.
III. LUI'S CLAIMS ARE COGNIZABLE UNDER THIS COURT'S HABEAS CORPUS
JURISDICTION AND ARE JUSTICIABLE UNDER THE NON-INQUIRY RULE AND
TERLINDEN v. AMES.
A. Lui's Jurisdictional Challenge Is Of Constitutional Dimension.
The government argues that the District court, and hence this Court,
lack habeas corpus jurisdiction to determine Lui's claims, GB at 43-46,
and also suggests that the habeas jurisdiction in extradition cases
conferred on Article III courts by 28 U.S.C. § 2241(c)(3) merely mirrors
the Magistrate Judge's jurisdiction under 18 U.S.C. § 3184, which need not
be exercised by an Article III judge. GB at 8-12.
Article III courts have habeas corpus jurisdiction to determine
Lui's claims that he is being held in custody "in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C. §
2241(c)(3). At all times material to Lui's amended petition for a writ of
habeas corpus (A. 252), Lui was (and remains) in custody because of the
Magistrate Judge's detention order, issued concurrently with his
certification to the Secretary of State that she may extradite Lui to Hong
Kong. (A. 231). Relying upon uncontradicted evidence that, if extradited
to Hong Kong, Lui would not be tried and, if convicted, punished by the
sovereign which requested extradition, namely the UK, Lui claims, inter
alia, that the Magistrate Judge's certification and detention order
violate: (1) the extradition laws, 18 U.S.C. § 3184 and 3186; (2) the
Treaty; and (3) his right under the Fifth Amendment's Due Process Clause
and the Constitution's treaty ratification clause, Article II, § 2, not to
be extradited to face trial and potential punishment in the judicial and
penal system of any foreign sovereign which does not have in force a
Senate-ratified extradition treaty with the United States. Hence, Lui's
claims literally fit within the plain meaning of the Congressional grant
of habeas corpus jurisdiction in 28 U.S.C. § 2241(c)(3), and nothing in
the government's brief shows that they are not covered by the statute's
categories of cognizable claims.13
In addition to the support for the district court's jurisdictional
ruling found in the text of the habeas corpus statute, the district court
correctly determined that Lui's claims are within the scope of habeas
corpus jurisdiction in extradition cases, recognized in Fernandez v.
Phillips, 268 U.S. 311, 312 (1925) and quoted in Koskotas v. Roche, 931
F.2d 169, 171 (1971), in that they require the court "to determine whether
the magistrate had jurisdiction...." A. 198. A determination of whether
the Magistrate Judge had jurisdiction includes a determination of whether,
under the circumstances presented, he had power to grant the request of
the United Kingdom to certify Lui for surrender by the Secretary of State
to Hong Kong. Resolution of the jurisdictional question referred to in
Fernandez and Koskotas involves determining whether the Magistrate Judge
has the power to grant the relief requested by the party seeking relief.
Taking this correct view of what is included in determining "whether the
magistrate has jurisdiction," the district court stated:
This court has the responsibility of determining whether the Treaty,
together with 18 U.S.C. § 3184, grants the Magistrate Judge the
authority to permit extradition. If the Magistrate Judge lacks the
authority to do so, he lacks jurisdiction.
Id. at 28. The district court correctly ruled that it has habeas corpus
jurisdiction, since Lui's petition asserted that the Magistrate Judge
lacked authority to order him detained and certified as extraditable to
Hong Kong in the face of the conclusively established that, if
surrendered, he would face trial and punishment in non-UK courts and
prisons, in violation of the Treaty, the extradition statutes, and the
Constitution.
Cases cited by the district court likewise support its
jurisdictional ruling. A. 199, (citing cases where the courts asserted
jurisdiction and decided the cases, including Oen Yin-Choy v. Robinson,
858 F.2d 1400 (9th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Cheng
Na-Yuet v. Hueston, 734 F.Supp. 988 (S.D. Fla. 1990), aff'd, 932 F.2d 977
(11th Cir. 1991); and Matter of Extradition of Tang Yee-Chun, 674 F. Supp.
1058 (S.D.N.Y. 1987)). Though it certainly constitutes an attack upon the
jurisdiction of the extradition Magistrate Judge, Lui's constitutional
claim under the Fifth Amendment's Due Process Clause and the Treaty
Ratification Clause comes within the habeas corpus jurisdiction even if
viewed as a claim that does not challenge the Magistrate Judge's
jurisdiction.
This Court has "recognize[d] that serious due process concerns may
merit review beyond the narrow scope of inquiry in extradition
proceedings." Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991),
quoting In re Extradition of Manzi, 888 F.2d 204, 206 (1st Cir. 1989),
cert.denied, U.S. (1990). Other courts have recognized that, in view of
the body of decisions which have expanded the protections afforded by the
Due Process Clause since the 1925 decision in Fernandez v. Phillips,supra,
habeas corpus jurisdiction in extradition cases has correspondingly
expanded to include power to consider "not only jurisdictional defects
which are of constitutional dimension," of which Lui's claim is one, but
due process claims which are not attacks on the jurisdiction of the
extradition judge. See Matter of Burt, 737 F.2d 1477, 1482-85 (7th Cir.
1984); Plaster v. United States, 720 F.2d 340, 347-49 (4th Cir. 1983).
Thus, Lui's claims challenge the jurisdiction of the Magistrate Judge to
certify and detain him, but even if this were not so, the habeas corpus
jurisdiction created by 28 U.S.C. §§ 2241(c)(3) and the Constitution's
Habeas Corpus Clause provide more than adequate support for the district
court's ruling that it had jurisdiction to reach the merits of Lui's
claims.14
B. Adjudication of Lui's Claims Does Not Involve Determinations
Prohibited By the Non-Inquiry Rule.
The government's argument (GB 21-27) that Lui's claims require the
habeas corpus court to decide non-justiciable questions should be
rejected. The district court made it clear that it was neither passing
upon nor making predictions concerning the fairness of justice in post-
reversion Hong Kong. A. 191-192. This Court would not be intruding into
either of these areas were it to affirm the district court's ruling,
because the non-inquiry rule functions in this case to protect the
Senate's prerogative to render Advice and Consent, in the first instance,
before the Secretary of State ever determines whether persons found in the
United States should, through surrender to Hong Kong custody, be subjected
to trial and punishment under PRC sovereignty.
None of the non-inquiry cases cited by the government are applicable
here, because none involved an extradition request which, if granted,
would have subjected the relator to trial and potential punishment by a
sovereign other than the requesting party under the extradition treaty.
In In re Extradition of Howard, 996 F.2d 1320, 1330 n.6 (1st Cir.
1993), this Court stated that the rule of non-inquiry is not based on the
constitutional doctrine of separation of powers. According to Howard,
Article III courts do not lack the authority or capacity to determine
whether a relator would receive a fair trial and humane punishment in the
requesting sovereign's judicial and penal system.15 Rather, the rule of
non-inquiry defers to the determination of both political branches,
expressed in an executed and ratified extradition treaty, that "the treaty
partner's justice system [is] sufficiently fair to justify sending accused
persons there for trial." Id. at 1329 (emphasis and bracketed word
supplied), and expresses comity toward the judicial system of the
requesting sovereign (our nation's treaty partner) that would, pursuant to
treaty, try and potentially punish.
The doctrine of non-inquiry, and the principles of deference and
comity it embodies, are simply inapplicable here because it is
conclusively established that Lui will neither be tried nor punished in
the judicial and penal system of our nation's treaty partner, the UK. The
Treaty does not embody any determination by the political branches that
Lui or anyone else would be treated fairly by the PRC. Hence, no
deference is owed to any other branch's determination concerning the
fairness of PRC justice; nor is any comity owed to the PRC, which is not
America's extradition treaty partner. What is owed is deference and
comity to the United States Senate.
The government argues (GB at 28-31) that the district court exceeded
the limit on habeas corpus jurisdiction set out in Terlinden v. Ames,
supra:
We concur in the view that the question whether power remains
in a foreign state to carry out its treaty obligations is in its
nature political and not judicial, and that the courts ought not to
interfere with the conclusions of the political department in that
regard.
184 U.S. at 288 (1902), and that the district court misread Terlinden.
The above-quoted statement concerned the reviewability in habeas corpus
jurisdiction of the State Department's judgment concerning the nature of
the change of sovereignty that had occurred when the Kingdom of Prussia
was merged within the German Empire, and the effect of that change in
sovereignty, under international law, on treaties to which the Kingdom of
Prussia was a signatory. The Court declined to disturb the State
Department's judgment that the Kingdom of Prussia's sovereignty had not
been extinguished when it was subsumed under the sovereignty of the German
Empire, and the Court therefore declined to review the executive's
judgment that the Empire had become a party to the treaties under the
international law doctrine of state succession.
The above-quoted statement reflects judicial deference to the
executive concerning its international law determination concerning the
nature of the change in sovereignty which had occurred in Germany as an
instance of state succession, with corresponding effects on treaties which
were extant prior to the change. The district court correctly ruled that
the nature of the change in Hong Kong's sovereignty is not a state
succession and, in doing so, it in no way intruded upon nor overruled the
State Department's determination as to its nature and effects on treaties
under international law. Indeed, the district court's ruling is entirely
consistent with the State Department's own international law determination
concerning the nature of the change in sovereignty in Hong Kong, which was
that it is not a state succession. Indeed, it is uniformly recognized
that a change in sovereignty is about to take place in Hong Kong. It is
not a situation akin to those dealt with in the cases cited at GB 30,
where sovereign entities survived wars, or where former colonies attained
independence and stepped into the shoes of their former colonial masters
by agreeing to fulfill the obligations of extant treaties to which the
colonial power had been the US's treaty partner. The situation in the
instant case appears to be unprecedented -- the peaceful transfer of a
colony from one sovereign to become part of the territory of another,
where the US has extradition relations with the former but not with the
latter.
When asked by the Congress to classify Hong Kong's change in
sovereignty under international law and its effect on pre-reversion
treaties ("Will pre-1997 international agreements between the US and Hong
Kong continue in force after July 1, 1997?"), the State Department
replied:
Answer:
Under ordinary rules of international law, when part of the
territory of one state becomes territory of another state, the
international agreements of the predecessor state cease to have
effect in respect of that territory and the international agreements
of the successor state come into force there. Under these
principles, unless the United States and the PRC agree to a
different rule, all U.S. bilateral agreements that now apply to Hong
Kong will cease to do so after reversion, and U.S.-PRC agreements
will then begin to apply in Hong Kong.
Hong Kong's Reversion to China and Implications for U.S. Policy: Hearing
Before the Subcomm. on East Asian and Pacific Affairs of the Senate Comm.
on Foreign Relations, 102nd Cong., 2d Sess., 17 (1992) (prepared statement
of Jamison M. Selby, Deputy Legal Advisor, Department of State)(emphasis
supplied). Add. 49.
According to the State Department, what is about to occur in Hong
Kong is roughly comparable to the ceding of Spain's colony, Puerto Rico,
or Russia's colony, Alaska, to the United States, except that Hong Kong
will not become a colony of the PRC (as was the case initially when Puerto
Rico and Alaska became part of US territory); instead, it will become a
"Special Administrative Region" of the PRC. The district court correctly
recognized, as the State Department has, that the Crown Colony of Hong
Kong "will experience 'cessation' of independent existence" (A. 182),
which the Terlinden Court contrasted with what had occurred in
the case of the Kingdom of Prussia becoming consolidated into the German Empire. 184
U.S. at 283.
Thus, the district court did not misread Terlinden. The court
correctly recognized that the limit on habeas corpus jurisdiction set out
in Terlinden occurred in the context of a state succession and hence is
inapposite. Because Hong Kong will cease to be part of the territory of
one sovereign and will become part of the territory of another, Terlinden
does not preclude the district court from making a factual inquiry to
identify which sovereign will try and potentially punish Lui were he
certified to the Secretary of State and surrendered. Neither does
Terlinden inhibit the power of the habeas corpus court to interpret the
Treaty to determine whether it authorizes Lui's extradition.
In short, the district court got it exactly right.
CONCLUSION
For all the foregoing reasons, the district court should be affirmed.
Dated: February 7, 1997
Respectfully submitted,
Harvey A. Silverglate
BBO#462640
Andrew Good
BBO#201240
Silverglate & Good
83 Atlantic Avenue
Boston, MA 02110
(617) 523-5933