National security meets personal safety in Snowden case
Regina Ip says the Edward Snowden case highlights key security dilemmas in these jittery times, and what happens next will test not just Hong Kong's legal system but also Beijing's mettle
Six days ago, former CIA operative Edward Snowden shocked the world by revealing - from a location in Hong Kong - the US government's massive computer surveillance programmes. The revelations were shocking but not surprising, as in this age of hi-tech wonders, any computer user with a brain would have been wary of the possibility of eavesdropping by a technologically omnipresent superpower.
Yet his revelations of the targets of US surveillance - including computers in Hong Kong and mainland China - and the methods employed, plus growing information on Snowden the man and speculation on his motives, have placed Hong Kong in the eye of a rising storm.
The Snowden story rightly deserves global attention as it brings together so many strands of hot-button issues - the tension between protecting national security and upholding civil liberties; the equally tense but interdependent relationship between China and the US; the fear of a technologically empowered Big Brother obliterating personal freedoms; and, in the case of little Hong Kong caught in the crosshairs, "one country, two systems" versus superpower politics.
That Snowden chose the city is flattering to many Hong Kong citizens. His choice of Hong Kong as a city of protest with a tradition of harbouring dissidents is a vindication of our strong protection of human rights and independent judiciary. Yet it is worth teasing out why Snowden chose Hong Kong, and whether he made the right choice.
Hong Kong is of course an attractive location for making juicy revelations because it is an international media centre with a vibrant community of foreign correspondents and fearless local reporters. A story told in Hong Kong, no matter how sensitive or shocking, is guaranteed to be heard without fear of censorship.
Hong Kong is also home to over 100 consulates representing a wide range of countries and territories. That would help Snowden gain access to foreign countries for protection if ever he felt he needed help. Hong Kong is also known for its physical safety, with few past incidents of foreigners or foreign agents being kidnapped or murdered for political reasons.
Above all, Snowden might have chosen Hong Kong because it is part of China, which has the clout and self-interest to stand up to the US. Snowden might also have been aware that, although Hong Kong has long-standing bilateral agreements on criminal law enforcement with the US, its common-law system and the vibrant human rights groups and lawyers would offer him plenty of protection.
Hong Kong is obliged under its two bilateral agreements with the US - on mutual legal assistance in criminal matters and rendition of fugitive offenders - to assist in investigating any offence that Snowden might have committed in the US and in surrendering him to US authorities. Both agreements were signed in 1996, with the blessing of China.
The rendition agreement covers 36 offences, including "offences involving the unlawful use of computers", and the catch-all of "any other offence punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty, unless surrender for such offence is prohibited by the laws of the requested party".
Given such provisions, it would not be hard for the US authorities to come up with half a dozen offences against Snowden. However, the bilateral agreement also includes standard exclusion clauses guarding against surrender if the request involves an offence "of a political character", if the offence is punishable by death or if it involves any humanitarian considerations.
The agreement also allows the sovereign power to refuse surrender in cases which relate to "the defence, foreign affairs or essential public interest or policy" of the sovereign power, but only if the request involves a national of this sovereign power. Such a provision clearly does not apply to Snowden, but section 24 of Hong Kong's Fugitive Offenders Ordinance requires the chief executive to notify Beijing of any rendition proceedings under any bilateral rendition agreement.
Moreover, the ordinance also requires our chief executive to comply with an instruction issued by Beijing on the grounds of Chinese interests in defence or foreign affairs. This provision is, however, hedged with the caveat that "no such instruction shall operate to affect the responsibilities that the chief executive shall discharge in accordance with law in dealing with any case to which this subsection applies".
Some journalists have been scratching their heads over what this caveat means. Lawyers would argue it means the chief executive cannot wantonly surrender a person subject to a rendition request, or refuse to do so, if Hong Kong's legal provisions and procedures require him to act in accordance with the law.
Under Hong Kong law, any person within its jurisdiction can apply for legal aid to contest proceedings, file an application for refugee status or make a torture claim to the Immigration Department, or apply for a judicial review of proceedings.
If Snowden resorts to such legal remedies, he would probably be assisted by notable human rights lawyers in Hong Kong. Such counter-proceedings could take months, if not years, to conclude.
The big question, if such proceedings and counter-proceedings materialise, is: how would Beijing react? Would it issue directives to the chief executive citing defence or foreign affairs interest, but possibly compromising Hong Kong's legal and judicial systems, or would it simply let Hong Kong get on with its bilateral agreements with the US?
Beijing would not only have to ponder whether to forego an opportunity to counter the national security threat posed by US spying by laying its hands on Snowden, but also how to deal with indignant Chinese netizens crying foul over US spying.
The world is guessing not only what is on Beijing's mind, but also what is on Snowden's mind. Will he slug it out in Hong Kong, spilling more secrets? Will he change his mind and return to the US, where scores of human rights lawyers would also leap to defend him? Or will he throw in the towel and defect to China or some other country?
Too many imponderables exist to permit any reliable predictions. Suffice to say, the Snowden revelations shatter any delusion in this peaceful city that national security does not matter.
Security always matters, and when it rears its daunting head, it puts Hong Kong's legal systems and its motherland's "grand nation" geopolitical considerations to the test.
Regina Ip Lau Suk-yee, a former secretary for security, is a legislator and chair of the New People's Party