Snowden case poses complex legal challenges for Hong Kong

PUBLISHED : Wednesday, 12 June, 2013, 1:42pm
UPDATED : Thursday, 13 June, 2013, 12:57pm

If Edward Snowden remains in Hong Kong, determined to wage his legal battle here, it could pose complex legal challenges for the territory’s government and courts. It could take months - even years - to resolve.

One thing is certain - any suggestion Beijing will intervene is premature. As well as the question as to whether or not it makes political sense for Beijing to let Snowden stay, should Hong Kong decide to give him up to the United States, as a matter of procedure it would be a long time before Beijing could legally intervene.

Under the territory’s Fugitive Offenders Ordinance, Beijing could issue an instruction to alter a Hong Kong decision on whether or not to “surrender” (“extradite” only applies to two sovereignties) a fugitive on the basis that “the interests of the People’s Republic of China in matters of defence or foreign affairs would be significantly affected”. However, this intervention could only take place when the Hong Kong government decides whether or not to surrender Snowden. This could be a long process.

The Hong Kong government is likely to have to make two decisions: one under an agreement to surrender fugitives as signed between the US and Hong Kong government in 1996, and another under international refugee law.

First, the US government would have to bring a criminal charge against Snowden, and make a request to the Hong Kong government for the surrender of Snowden under the 1996 agreement. Then, the Hong Kong government would have to surrender Snowden - subject to two exceptions.

The first exception to surrender is if the offence is of a “political character”, and the second exception is an international law concept known as “dual criminality”. Applying to Snowden’s case, “dual criminality” means whatever crime he is alleged to have committed in the US must also be punishable in Hong Kong.

While Hong Kong has yet to implement national security laws pursuant to Article 23 of the Basic Law, it does have an Official Secrets Ordinance, which is likely to meet the “dual criminality” criteria, should the US decide to charge Snowden for disclosing state secrets.

The “political character” issue is unlikely going to be much help to Snowden either.

Snowden could seek a judicial review of Hong Kong government’s decision to surrender him. But whether it is the government or the courts deciding on the point of “political character”, they will have to examine the legal system and human rights record of the United States. While in some countries a charge of disclosing state secrets could be one designed to target political dissidents, absent of hard evidence, it could be an uphill battle for Snowden to prove that such a charge in the United States is of a “political character”.

Meanwhile, once the US makes a formal surrender request, Snowden will likely also make an asylum application with the Office of the United Nations High Commissioner for Refugees (UNHCR) in Hong Kong.

Hong Kong is not a signatory to the international Refugee Conventions, but is nevertheless bound by the fundamental international human rights principle of “non-refoulement” - this means it cannot repatriate an asylum-seeker if he or she may face persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

This international human rights duty trumps the duty under the surrender agreement. Therefore, once Snowden makes an asylum application, the Hong Kong government would have to put its decision on whether or not to surrender Snowden on hold, and allow him to stay, pending a decision by the UNHCR.

Like the “political character” matter, it could be hard for Snowden to prove he could face persecution based on his political opinions should he return to the Untied States. However, if biding time is his purpose, he may have chosen Hong Kong well.

As director of the Centre for Comparative and Public Law at University of Hong Kong professor Simon Young said, there is a loophole in Hong Kong’s asylum laws at present. A Court of Final Appeal case in March (“The C Case”) ruled that the Hong Kong government must carry out an independent review of asylum applications and cannot deport a person solely based on UNHCR’s decision. But such a review procedure has yet to be established. While the government might theoretically carry out an ad-hoc review of Snowden’s case, it might not want to appear to be giving preferential treatment to him due to thousands of asylum seekers flocking into Hong Kong each year. This alone could keep Snowden in Hong Kong for years.

Should the Hong Kong government agree with UNHCR’s decision to deport Snowden after conducting an independent review, Snowden can seek a judicial review of this decision. It is only after such review is completed that the government could decide to surrender him.

There is another option, as Young explained: Snowden can legally stay in Hong Kong for up to 90 days under his visitor visa. If he applies for refugee status immediately, and is granted refugee status by the UNHCR office within the 90 days, the Hong Kong government would not need to get involved. Snowden could then be resettled in a third country.