Edward Snowden

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