Hong Kong legal opinion divided on Edward Snowden extradition
Beijing likely to keep out of political quagmire surrounding US whistleblower, lawyers believe
The city's legal circles are split over whether Beijing or the courts will have the final say on the future of whistle-blower Edward Snowden if the US demands his extradition.
But most agree that the Beijing government will choose to keep its hands off the political hot potato and leave Washington to cope with the embarrassment of Snowden's decision to leak its surveillance secrets. And one leading lawyer predicted that an extradition battle could drag on in the Hong Kong courts for anything up to five years.
Under both Article 6 of the agreement between Hong Kong and the US for the surrender of fugitive offenders and Section 5 of Hong Kong's Fugitive Offenders Ordinance, a person shall not be extradited if it appears that the offence they are accused of has a political character, irrespective of how the offence is described.
If courts rule a suspect is to be extradited, it will fall to the chief executive to order his removal.
But Section 24(3) of the same ordinance allows the Central People's Government to issue an instruction to the chief executive on whether to act if a failure to comply with the instruction would "significantly affect" the interests of China in matters of defence or foreign affairs.
Pan-democratic lawmakers Ronny Tong Ka-wah SC and Albert Ho Chun-yan, both practising barristers, agree that Beijing would be able to have the final say if it decided its foreign or defence interests were affected. But they do not believe it will want to use those powers.
"According to the rules, Beijing does have the final say when it comes to defence and foreign relations. But I don't think Snowden's case will affect the interests of China. It's not likely Beijing will give instructions to Leung Chun-ying," Ho said.
Tong says he believes Beijing will be "happy" to see the usual scenario - in which Chinese dissidents flee to the US - reversed.
Simon Young Ngai-man, a professor of law at the University of Hong Kong, believes that the central government would not be able to intervene with a decision of the Hong Kong courts because the Basic Law also protects the independence of the judiciary.
"If the court finds that the surrender is prohibited due to the political-offence exception, then the decision will be final because the matter does not advance to the chief executive's decision to surrender, which is the only decision that the central government can control by instruction," Young said.
Dennis Kwok Wing-hang, a Civic Party lawmaker and lawyer, says the Fugitive Offenders Ordinance puts the individual's rights first in cases where an offence was ruled to be "political".
Regina Ip Lau Suk-yee, former security minister and lawmaker of the New People's Party, said she did not believe Beijing would easily intervene in the case.
"It's up to Snowden to argue his offence is of a political character. If the court rules he should not be surrendered, the chief executive will look at the evidence and consult the international law division of the Department of Justice."
Hectar Pun Hei, a barrister familiar with human rights law, said he expected that any legal proceedings involving an attempt to extradite Snowden could last three to five years.