• 有德國特色的庇護|戴啟思
  • 2020-10-31    

  • 有德國特色的庇護|戴啟思

 

Refugee or Renegade?-Fleeing Hong Kong


The Chief Secretary took the German Consul General to task a few days ago because of reports that the Federal Government had granted asylum to a person wanted in connection with offences allegedly committed at public order events last year.

Hong Kong’s Number Two was disappointed. He said the Hong Kong SAR Government objected to jurisdictions harbouring ‘criminals’. Sheltering them would send the wrong message that criminals need not have to shoulder liability for their actions.

He urged the consul to remind the German Government that a fair trial was guaranteed to everyone in the HKSAR charged with a criminal offence and, as defendants, they had a whole raft of other rights as well under the Basic Law and the Hong Kong Bill of Rights Ordinance. He expressed concern that the actual situation in Hong Kong had perhaps not been made known to the body responsible for making asylum decisions in Germany.

The Chief Secretary’s message was like a disappointed headmaster’s ‘Could do better!’ admonition. It ended with a by now familiar plea that Germany should refrain from ‘interfering’ in Hong Kong affairs which were internal matters of the PRC.

Other press reports confirmed the story. The Federal Republic of Germany had granted asylum to an unnamed Chinese University student who had been arrested for rioting last year.

The Chief Secretary’s intervention was unfortunate. He seemed to suggest that the unnamed student had committed an offence by talking about ‘criminals’ who might find asylum in Germany.

One of the rights enjoyed by persons going through the criminal justice system is the right to be presumed innocent until proved guilty. A person who flees a country rather than standing trial is usually known as a ‘fugitive’, an accurate description of a person in flight who may or may not be guilty of an offence.

Countries can request that the return of a fugitive. Requests are made under formal extradition arrangements. These have the advantage of putting a government under an obligation to surrender a fugitive unless particular circumstances exist justifying the host country to refuse the request.

Hong Kong cannot go down that route. Shortly after the Chief Executive promulgated the National Security Law a few months’ back the Federal Republic of Germany suspended the arrangements it had with the HKSAR for the surrender of fugitives. Until those arrangements are revived, if at all, we will never know whether the student was a fugitive that could have been extradited to the HKSAR.

In the absence of a working extradition treaty, international law is clear on the matter: it is a matter for a sovereign state to admit or refuse a person seeking entry. That power to accept or deny access to a country can be limited only by the state’s laws or by treaty or multilateral international convention.

Germany is unusual in the importance it attaches to asylum claims. Most countries make laws about asylum to reflect obligations in international law about refugees. The United Nations Convention and Protocol Relating to the Status of Refugees 1951 is the almost universal source for most countries’ laws about asylum.

Germany is different. It created a simple right to asylum and placed it in its constitution-the Basic Law. Article 16 (a)(1) says that ”Persons persecuted on political grounds shall have the right of asylum.” The prominence given to the right to asylum in the constitution owes much to German history.

Before World War 2, the country created thousands of asylum seekers-mostly Jewish-who fled Nazi persecution when it was still possible to leave Germany. That exodus of terrorized citizens made a lasting impression on the country’s collective conscience after the war.

Even more important was the experience of Germany as the place of refuge for ethnic Germans expelled from Eastern Europe at the end of the war.

German communities had existed in Czechoslovakia, the Baltic States, Hungary, Poland, Romania and Russia for hundreds of years. About 12 million Germans were displaced from these countries when the war ended. Their enforced movement was the most significant involuntary migration in history, and their resettlement strained the resources of both East and West Germany for many years. Germany was then the country of asylum for Germans born outside its boundaries, and very many of the country’s present-day citizens, are the children and grand-children of these asylum seekers from the East.

The point is that, with this history, Germany does not take the issue of asylum lightly. The constitutional right to asylum in the Basic Law is supplemented by the laws that give effect to the United Nations Refugee Convention of 1951. Officials who are charged with making asylum determinations take their jobs seriously, and there are appeals to Federal courts to make sure that they follow the relevant laws and that the procedures are fair.

Against this background, it should be evident that the German Federal Government does not ‘interfere’ with a third country’s affairs when it handles asylum claims. Quite the opposite. The Federal Government discharges weighty legal obligations that arise under its constitution and its other laws which are owed to persons seeking protection from persecution.

The Chief Secretary may be embarrassed by a finding that another country has granted a fugitive from Hong Kong justice asylum. Still, he should know that it is not the job of the person making an asylum decision to please the Government of the country from which the asylum seeker has fled. If that were the case, no asylum claims would ever succeed.

If, after a personal examination and applying the correct legal principles, a decision-maker is left with the belief that the asylum-seeker faces political persecution if returned to the place he or she has fled, the law of a country may require that the asylum claim be recognized.

The Chief Secretary may disagree with the decision and question how it was made, but he should not say that the application of this German law constitutes ‘interference’ in Hong Kong affairs.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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