Edward Snowden

Two ways for Edward Snowden to get legal protection

He can ask to be considered a refugee or claim he will be tortured if sent back

PUBLISHED : Friday, 14 June, 2013, 12:00am
UPDATED : Friday, 14 June, 2013, 6:28am

Edward Snowden strongly supports the United Nations High Commissioner for Refugees system, he told the South China Morning Post on Wednesday, although he refused to say whether he plans to apply for refugee status in Hong Kong.

Going to the UNHCR is one of two ways he can seek legal protection while he fights an expected US request for his extradition through the courts.

He can ask the UNHCR to determine whether he qualifies as a refugee. Or, he can seek protection from Hong Kong by claiming he will be subject to torture if he was sent back to his home country. The city is obliged to let him stay if the claim is substantiated.

The refugee option has become more uncertain lately because the government has yet to set out how it will address a ruling by the Court of Final Appeal in March regarding the assessment of refugees.

The court said the government cannot just rely on the UN body's judgment on whether a person is a refugee and it must assess the cases independently.

As such, even if the UNHCR ruled that Snowden qualified as a refugee, there is still a question mark over whether the government will accept the assessment.

Claiming protection because of torture fears if he were sent back does not hold much promise for him. The Immigration Department screens such claims and its transparency and fairness have often been questioned as only a handful of claims have been successful since the screening system was set up in 1992.

Whether he gets protection or not, Snowden will still have to face the courts should the US request his extradition.

When the US files the request to the Secretary for Justice for Snowden's arrest, he will be brought before a magistrate. The US will have to show evidence and set out the charges against him. At this juncture, the chief executive can decide whether to accept the request, and the central government can instruct the chief executive how to proceed if its foreign affairs or defence interests are affected.

If Snowden decides to challenge extradition, there will be a hearing in which he can raise objections and claim that the offences are of a political nature.

"Once the court rules Snowden's was a political offence, the decision is final and he will be set free. Neither Beijing nor the Hong Kong government has a say," said Simon Young Ngai-man, director of the University of Hong Kong's centre for public and comparative law.

But if a magistrate rules against Snowden, he can appeal to three higher courts. If the top court, the Court of Final Appeal, rules against him, the matter will go back to the chief executive, who must rule on whether to surrender him. At this point Beijing has another opportunity to give Hong Kong instructions.

Beijing cannot interfere in the court proceedings as the Basic Law, the city's mini-constitution, upholds judicial independence.

If the chief executive decides to surrender him, Snowden can still challenge the decision by seeking a judicial review. If he loses the review, he can repeat the appeals process.

The Department of Justice, which represents the US government, can also appeal should any court rule in Snowden's favour.

"If at any time during the judicial phase of the surrender proceedings, the court discharges the individual, the requesting state may request his surrender again on the basis of a different offence or evidence," said criminal and human rights law barrister Michael Blanchflower SC.



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