Edward Snowden, the man who leaked NSA secrets to The Guardian newspaper, has chosen either luckily or on extremely good advice by seeking refuge in Hong Kong from possible prosecution.
A quirk of judicial history means Mr. Snowden could be safe from any US attempt to extradite him “for months if not years,” according to one of the former British colony’s top legal experts, Simon Young.
Though it is unlikely Snowden would be able to spend the rest of his life in Hong Kong, he will be able to use the protections afforded by Hong Kong’s judicial system, which is independent of the Chinese government.
If Snowden chooses to ask for political asylum, says Professor Young, head of the Centre for Comparative and Public Law at Hong Kong University, “he is going nowhere” in the foreseeable future. A recent appeals court ruling, he explains, means that “the government cannot return anyone who claims that he will be persecuted” in the country he came from.
That is because Hong Kong’s asylum law is “a black hole,” Young says. In the wake of the court ruling last March, the government cannot continue simply to follow rulings by the UN High Commissioner for Refugees on the merits of an asylum claimant’s case, as it has always done until now.
The Court of Final Appeal ruled that the government must independently determine the validity of asylum claims, but the authorities have devised no system for doing so. Legislation setting up such a system would take “months if not years,” says Young, and any administrative plan the government instituted before a law was passed would be subject to challenge in the courts.
“Short of a criminal group getting to him, I think he is safe here,” Young adds.
Snowden told The Guardian in an interview published Sunday that he had flown to Hong Kong on May 20, because “they have a spirited commitment to free speech and the right of political dissent.”
The Guardian also said he believed Hong Kong was “one of the few places in the world that both could and would resist the dictates of the US government.”
The United States and Hong Kong signed an extradition treaty in 1996, shortly before Hong Kong was returned to Chinese sovereignty. Article 6 provides that “a fugitive offender shall not be surrendered if the offence of which that person is accused or was convicted is an offence of a political character.”
If the US government does indict Snowden, and then asks the Hong Kong government to extradite him, the Chief Executive might refuse on the grounds of another clause in the treaty allowing him not to surrender a fugitive if doing so might implicate “the defense, foreign affairs or essential public interest or policy” of the Chinese government in Beijing.
“Hong Kong will have to take instructions from Beijing on this,” predicts Michael Davis, a Politics professor at Hong Kong University. “And I cannot see how Beijing benefits from tweaking the US” by refusing an extradition request.
Should Beijing and the Hong Kong government agree to an extradition, however, it would be subject to judicial approval, and Snowden could decide to argue in court that he leaked information about NSA spying programs for political reasons, portraying any crime of which he might be accused as “an offence of a political character.”
Snowden might not win such a case in the end; nor would the courts necessarily grant him asylum, even when the relevant laws and regulations have been approved, because they might not regard prosecution in a US court as “persecution.”
But “one can take full advantage of Hong Kong’s legal system to challenge issues that may arise ... and that could take a long time,” predicts Young.
“He has made a very wise decision” to go to Hong Kong, adds the lawyer. “But I would counsel him to get legal advice.”