I am actually serious because what you are suggesting sets up a structural dislocation of the political landscape and in politics that is a nuclear option. I will lay out the premise of my assertion.
Hong Kong Basic Law sets out certain protection, including :
The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. The procedures for amendments to the Basic Law are laid out in Article 159. Any amendments require the approval of the Chief Executive of HK, two thirds of the Legislative Council of HK members and two thirds of the deputies representing Hong Kong in the NPC.
Let’s set out the scenario that for whatever reason, the HK government decides to round up the lot. They have to be charged within 72 hours or be released. There are not enough jails for temporary detention.
I am not a lawyer but my interpretation is that any lawful detention has to be physically within the territory as governed by the HKSAR administration. You can’t simply move them across to the Mainland. That is unlawful because it is a cross border move and under the one country two systems, it is a different legal jurisdiction. That is why there is such a thing as extradition to facilitate legal transfers between territories. China cannot conduct extradition on them because there is no legal basis to do so unless laws are broken in China while physically in China. You can try amending the Basic Law to cover this (long shot) but under current political scenario, there are insufficient 2/3 majority in LegCo. to pass as this is a very controversial move. I am assuming there are no emergency provisions to do this under Executive power. I seriously doubt you can siphon people off cross border even under emergency powers. This leaves a remaining option of declaring HK’s security under threat because there is a break down in law and order and HK has become unmanageable. It becomes a defence issue which Beijing can then call in the PLA and whatever else they decide. For political cover, such a drastic move requires matching developments like uncontained rioting or total breakdown of law and order.
Your suggestion is expedient but there is a procedural process and legal framework in HK that still rest on the notion of rule of law, transparency and accountability.
As you say, we are not constitutional lawyers, so I don't really see what the point would be for us to get into a technical discussion about detailed legal frameworks and interpretations that often tie even top lawyers and judges in knots.
However, one well thought out and reasons reply deserve another, so here goes.
Firstly, I think a few obvious points need to made clear. Hong Kong is governed by
one country two systems.
Since Hong Kong is Chinese sovereign territory, I do not see how extradition procedures would apply.
Any movement of prisoners between prisons within a country would just be covered by normal prisoner transfer procedures and regulations. Or at least that is how government lawyers would argue if they wished to make that move and were challenged.
Secondly, there may be a time limit on how long police can hold someone before charging them, but there is no such limit that I am aware of, of how long police can remand people in custody pending their allotted court date to contest those charges.
It is certainly not unheard of for people to spend years in jail in western democracies waiting for their day in court. And that's just from normal backlogs. In a mass arrest incident, a wait time of months to years is certainly not unreasonable.
Lastly, it should be noted that Hong Kong's special status and privileges are granted by Beijing, and can be changed or revoked by Beijing just as any Soverign government may amend or revoke any existing domestic law so long as the constitutional requirements are met.
Stripping HK of all its rights and privileges would be an unnecessary extreme move, but it would not be beyond the realm of possiblity for Beijing to strip away some fringe rights that would not impact on many people's normal lives, just to make a point, with the obvious unspoken understanding that it could strip away more rights and privileges if it sees fit.
That is pretty much the trump card that Beijing could play to sidestep any legal loop holes any lawyers might find to oppose what they want. The questions really would be whether Beijing sees it as necessary to employ such a crude instrument to get its way.
Up to now, it has opted to try and work within HK's legal framework to get things done. However, Beijing's patience is not infinite, and China's leaders may simply wonder why they should continue to honour HK's local lawers when the anti-Beijing elements seems to care so little breaking the very laws they claim to champion.
- accused of causing damage - the work of protecting their internet connection the companies had avoided to do - and was remanded in custody until he agreed to a plee bargain for four years.