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Edward Snowden
CommentInsight & Opinion

Rule of law ill served by Hong Kong's decision to let Snowden leave

Surya Deva questions the government's explanation for allowing Snowden to leave Hong Kong, as it seems to have acted according to Beijing's dictates, rather than in line with the rule of law

PUBLISHED : Thursday, 27 June, 2013, 12:00am
UPDATED : Thursday, 27 June, 2013, 4:18am

Edward Snowden's escape from Hong Kong on Sunday was dramatic to say the least. Several people are coming forward to claim credit for facilitating his exit, which avoided a potentially long and unpredictable legal battle against extradition to the US.

It seems, however, that the key player behind Snowden's escape is not disclosing its identify. This key player appears to be the central government, which wanted to gain political mileage out of the saga, but did not wish to keep this "hot potato" within Chinese territory.

Chief Executive Leung Chun-ying has defended the Hong Kong government's role, saying: "The people of Hong Kong and our friends in the international community expect us to follow the laws of Hong Kong itself. They expect us to uphold our rule of law and, equally importantly, they expect us to follow procedural fairness and procedural justice."

But if the central government actually intervened as an invisible hand - which seems very likely under the circumstances - and the Hong Kong government acted under its dictation, then the rule of law did not really prevail.

Beijing can, of course, intervene in extradition matters if they have a "significant" effect on China's defence or foreign affairs. However, in this case, the opportunity for Beijing to exercise that power did not arise because committal proceedings had not yet begun under Hong Kong extradition law.

Predictability, an important facet of the rule of law, is undermined when the decision-making authority starts taking into account extraneous considerations. The way the Hong Kong government acted in the Snowden case is likely to dent the trust of other states that have extradition agreements with Hong Kong.

The legal requirements to make an extradition request under Hong Kong law are straightforward and it seems implausible that the US government did not consult local lawyers to satisfy these requirements and provide crucial information.

The explanation offered by Secretary for Justice Rimsky Yuen Kwok-keung that the US government had not responded to Hong Kong's request for a confirmation of Snowden's name and passport number is not entirely convincing. Since there was no doubt as to the identity or nationality of the person sought by the US, any slight variation in the middle name was inconsequential. In any case, this could have been clarified in minutes through diplomatic channels, if considered vital.

Yuen's reason that the documents provided by the US made no mention of what evidence they had against Snowden seems equally unsound. The reason is very simple: the legal requirements to make a request for provisional arrest under the extradition agreement between the US and Hong Kong are different and much lower than for seeking normal extradition.

It appears that the US had provided the Hong Kong government with everything the law required for securing Snowden's provisional arrest: "a description of the person sought, information as to his whereabouts, an indication of intention to request his surrender, a statement of the existence and terms of a warrant of arrest … a statement of the maximum punishment that can be imposed … and a statement of the acts or omissions (including time and place) alleged to constitute the offence".

The maximum period of 60 days of provisional arrest should have provided the government with adequate time to secure supporting evidence from the US and satisfy itself that the three charges against Snowden constituted crimes under Hong Kong law. But the government jumped the gun by requesting more than it was entitled to under the law at that stage.

Complying with legal procedures is critical. However, procedures should not be used as an excuse to frustrate the spirit of law or evade justice. Nor should they be employed to mask the political manoeuvrings from Beijing.

So, did the government let Snowden leave Hong Kong to settle a score with the US government, which secretly hacked computers in Hong Kong and mainland China? Perhaps. But then the rule of law does not allow a "tit for tat".

Only last week, in a piece published here, I suggested that how the Hong Kong government and its courts dealt with any US extradition request for Snowden would define not only the future of Hong Kong's autonomy, but also its status as the bastion of freedoms and the rule of law within China.

I have no sympathy for the US or its secret surveillance. And it is comforting to know that Snowden is still outside the reach of the US. But in letting Snowden escape from Hong Kong, the government might not really have acted in consonance with the publicly declared objectives: upholding the rule of law and procedural justice.

The explanations provided by the chief executive and secretary for justice are far from convincing. They do little to remove the suspicion that "one country, two systems" was undermined once again.

Surya Deva is an associate professor at the School of Law, City University of Hong Kong

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ianson
The article is a damning testament to the quality of the CityU Law programme. It completely lacks the sort of fastidious legal analysis one woud expect of a senior academic. The provision cited clearly requires a statement of the acts and omissions detailed down to time and place and to just skim over the question of the name as if it's irrelevant is ridiculous. Deva is a dunce and, worse, struggling to make a point about Beijing interference, writes a load of trash for our consumption. No doubt, there were communications with Beijing and evidently they told the Immigration Department to stay its hand and let Snowden fly, but that has nothing to do with the legal process conducted by SfJ Yuen.
BT
You wouldn't be able to board a plane if your name on the air ticket doesn't match that on your passport. I'd be rather distressed if governments start arresting people willy-nilly just because common sense suggests 'James' actually means 'Joseph'. Perhaps that's how US Homeland Security do things these days, but I beg HK not to adopt their loose interpretation of rule of law.
According to Yuen, the US never bothered to clarify the personal particulars in question. I'm not aware any American official has contradicted Yuen's version of events. The White House's "I don't buy it" sounds more like a childish rant than a persuasive argument.
the sun also rises
I think the City Univ.should re-examine the qualifications and teaching ability of this so-called associate professor named Surya Deva whose comments/views are never convincing enough to even persuade the readers here by his attacks on Hong Kong government's role in the Snowden case.He accused Central government acted behind the scene for the leave (not escape sorry since he left in a normal and legal way by using his passport which was said to have been revoked but our Immigration Dept.had never be notified,how absurd it was !) of Snowden.I wonder why this Surya Deva doesn't understand though we practise 'One country,two systems' here ; defence and diplomacy are the matters of the Central authorities and espionage belongs to the field of defence.If so,why the Central authorities cannot have her views/role in this Incident ? This associate professor maybe just an egghead only, I regret to say.
XYZ
The most important development in this story, as far as Hong Kong is concerned, is that the entire world, and the U.S. in particular, now knows that Hong Kong is no longer a plucky little city striving to foster democracy and the rule of law on Chinese soil, but is instead a craven and untrustworthy communist stooge. Now we really are "just another city in China". Congratulations, Mr. Leung.
the sun also rises
PCC, I regret to say,the Snowden case is not a story but a real incident which demonstrated how your boss (or idol)---Uncle Sam is so arrogant and bossy towards not only Hong Kong,China and Russia as well.Now she is threatening those small nations not to offer an asylum to her countryman---though Mr.Snowden has not yet been tried openly and is still an innocent American---by accusing him as a traitor, committing espionage crime, disclosing defence sercets and confidential secrets to unauthorized persons( which meant the journalists of the media which interviewed him here that observes 'freedom of media and expression 'and the safe leave of Mr.Snowden only shows that we Hong Kong still practises,'rule of law' unlike the US which is hypocritic enough on cyberspying and is never humble enough to admit her errors made or nasty acts done to the world----a No.1 power mentality in the global village indeed ! Shame on you, President Obama !
xiaoblueleaf
Did the U.S. issue a court order for extradition? If not, Snowden was free to go where he pleases.
Why write or SCMP publish something based purely on conjectures? Beijing interference?
dynamco
www.cityu.edu.hk/edge/change/surya.htm
" Since there was no doubt as to the identity or nationality of the person sought by the US, any slight variation in the middle name was inconsequential."
what a ridiculous comment from a supposed learned PHD person. If someone called Surya Malhotra Deva was arrested and detained when there was an arrest warrant for Surya M Deva would that person be aggrieved ? How many John J Smiths are there with US passports ? Did Snowden change his passport number recently in Hawaii so the numbers did not match?
Total guessworkery , innuendo and B.S. from the writer.
blue
I agree. This is a very poor article. It seems to be an associate law professor who is trying to make a name for himself.

I really feel such an article is in bad taste, regardless of whether or not there was Central government involvement, considering the fact that the HK and Chinese governments both protected someone's human rights and allowed safe passage to parts unknown.
Kawe
This article is a big soup of conjecture. It throws lots of big opinions with a very timid and unconvincing wording at the crucial parts ("appears to be", "might not have", etc. etc.).
In the end no real point was made because of all the uncertainty. It can be summed up as "If the x,y,z happened then it was bad".
Also I don't see how the author can so readily accept the faults of the Central Government, CE and the Secretary for Justice but just as readily assume that the US really did comply with requirements.
Lastly I don't see how there is a problem with requiring full and accurate information. It seems to be very heart of procedural justice. Just because it is apparent who it is through media shouldn't make the requirements any more lax. Right?
Now I'm not denying that the Central Government had their hand in this. I'm just claiming this article is a very poor one. Grasping at straws at best.

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