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  • Apr 20, 2014
  • Updated: 10:52am

Edward Snowden

30-year-old American Edward Snowden, a contract employee at the National Security Agency, is the whistleblower behind significant revelations that surfaced in June 2013 about the US government's top secret, extensive domestic surveillance programmes. Snowden flew to Hong Kong from Hawaii in May 2013, and supplied confidential US government documents to media outlets including the Guardian

CommentInsight & Opinion

Snowden right to put his trust in Hong Kong's fair and open courts

Dennis Kwok says Edward Snowden's trust in the independence of Hong Kong courts is well founded, given that any extradition to the US must satisfy a judicial procedure, whatever the politics

PUBLISHED : Friday, 14 June, 2013, 12:00am
UPDATED : Friday, 14 June, 2013, 8:49am
 

Poll

  • Yes: 15%
  • No: 85%
13 Jun 2013
  • Yes
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Total number of votes recorded: 293

Hong Kong has been thrust into the international spotlight after it was revealed that American whistle-blower Edward Snowden sought refuge in our city while he exposed the magnitude of America's secretive state surveillance programme.

Snowden has reiterated his intention to stay and fight any extradition to the US, saying: "I have had many opportunities to flee Hong Kong, but I would rather stay and fight the US government in the courts, because I have faith in Hong Kong's rule of law."

The wisdom or otherwise of Snowden's choice has since been much debated in the international community and here in Hong Kong, with some casting doubt over how the Hong Kong government would react to pressure from the United States for extradition. Those who do, however, are missing the crucial point, one that Snowden appears firmly aware of: even if our government should succumb to political pressure at home or from abroad, his fate would ultimately be decided by our courts.

The key lies in our common-law legal system, which is based first and foremost on the rule of law and the independence of the judiciary. Judges are supposed to, and do, decide cases based solely on the Basic Law, local legislation and common-law principles. For extradition of "fugitives" from Hong Kong to the US, the legal procedure is contained in the extradition treaty signed between the city and the US in 1996 and in the Fugitive Offenders Ordinance enacted in 1998.

If and when the US government makes a request for extradition, the Hong Kong government would have a legal obligation under the extradition treaty to consider ordering the arrest of Snowden, who would then be brought before a court of law as soon as possible following his arrest.

From there on, it becomes a judicial process, much like those in any other common-law jurisdictions. The court would have a duty to assess the validity of the extradition order, the underlying evidence, and the charges brought against Snowden.

As a defendant fighting extradition, Snowden would be offered full legal representation, time and resources to fight his case and, most importantly, the guarantee of due process and the right of appeal to the Court of Final Appeal.

In court, Snowden could well argue that the charges he faces fall under the "political offences" exception, as provided for under the extradition treaty and our local legislation. Under this exception, a person cannot be extradited if it appears to the court that the offence he is charged with is "of a political character", that the extradition request was "in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions", or that he might be prejudiced at his trial for the same reasons.

Again, the question of whether a case falls under the political offences exception would ultimately be a matter for our courts - and the courts alone - to decide. This stands in sharp contrast with the position in the US, where the competent authority to decide on this question is the US Department of State, which is responsible for America's international relations. Its decision would be heavily influenced by political considerations.

There is nonetheless one potential complication with the Hong Kong extradition process.

The extradition treaty between Hong Kong and the US specifically provides that the central government in Beijing can veto any decision to extradite Snowden on the grounds that it would contravene "the interests of the People's Republic of China in matters of defence or foreign affairs".

This proviso was included because even though we enjoy a "high degree of autonomy" under the Basic Law, matters of defence and foreign affairs are strictly within the ambit of the central government. In other words, if Beijing considers that it would not be in the national interests to extradite Snowden to the US, then it could put a stop to the process. However, no matter what the central government or the US government may wish to do, Snowden's rights under the extradition procedure, including his right to defend and fully argue his case, are well protected and shielded from all geopolitical considerations, as these matters would be dealt with by our legal system based on the rule of law.

Snowden chose to come to our city because he believes we "have a spirited commitment to free speech and the right of political dissent".

He also said that his intention "is to ask the courts and people of Hong Kong to decide my fate".

We have every reason to believe that the courts of Hong Kong would do just that in an open and fair manner. These are Hong Kong's core values.

Dennis Kwok is a legislative councillor of the Hong Kong SAR representing the legal profession

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the sun also rises
John McCain's remarks on invasion of our beloved Hong Kong was made during an interview by the BBC recently and I happened to learn of it from the Twitter news sent to me this morning.(Hong Kong time).In the interview,John McCain even described Hong Kong as a nation without any defence and can be invaded easily and occupied for further purpose besides having Snowden caught after taking over Hong Kong.This McCain is long known for his anti-China rhetoric and his words came as no surprise at all.Yet he missed a fact----Hong Kong is part of China after July 1st 1997 and is protected by the PLAs (here and nearby in Guangdong province). Just wait and see how easily Hong Kong can be invaded as Grenada in the Caribean Sea !
hongkiejj@malaysiaboleh
where is the link....care to share that video interview.
the sun also rises
sorry,there is no video interview which report was published on BBC World News on June 10th 2013.Please search it on BBC webpage if you are interested in the topic.Okay ?
Handel
Is the McCain reference from fake news website Daily Currant (****dailycurrant.com/2013/06/10/john-mccain-calls-for-invasion-of-hong-kong)? If it's real news, please verify. If satire, say so.
Handel
Lets keep fake news out of credible sites like SCMP.com. Even journalists are confused sometimes about their sources -e.g. CCTV citing a report from Jon Stewart's Daily Show, and the Boston Globe and Washington Post quoting Daily Currant stories. But, if fake news do transpire (especially, obvious ones), we should all help correct it.
kahei
Its obviously fake...sigh.. come on people! As easy to manipulate as sheeps..
hongkiejj@malaysiaboleh
dunno yet...I will check later when free but having goggle dat, sounds fake...lol
hongkiejj@malaysiaboleh
btw., my apology senator..no disrespect intended.:)
hongkiejj@malaysiaboleh
senator McCain...either you are old or bald......in this case, you are both. Pls stop threatening us peaceful loving citizens.
the sun also rises
Who said that the pan-democrats hold cold attitude towards the Snowden case which revealed the scandals of the U.S.government's illegal survellience of other nations' internet communications including those of Mainland China and Hong Kong, not to say her own people's---a violation of privacy indeed.Now the whole world has finally realised the biggest hacker in the world is nobody(not even Mainland China) but the U.S.which used to claim to be hacked by Red China (which is a dwarf only when compared with the huge network of cyber-espionage commetted by the NSA of America).Lawmaker Kwok Wing-han from the Civic Party has now written a balanced and fair-minded essay here to state his views on the Snowden Gate case ----unlike U.S.senator,John McCain who advocated an invasion of Hong Kong for hosting their traitor,the cyber-monitoring leaker,Edward Snowden and occupy our beloved Hongkong for our great port, the huge stock market and our excellent dim-sum plus easy access to major cities in China---for U.S.'s ballistic missiles to fire at and a nice spot to keep terriorist inmates after the one in Cuba is forece to close down.How arrogant and ignorant this old nasty guy is ! He just doesn't know that Hong Kong is a part of China and under her protection which an invasion/military action against H.K.,will definitely be counter-attacked by the PLAs stationed nearby.Just wait and see how this farce will develop--certainly it is more interesting and entertaining than any plays ! Right ?

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