【Article】Snowden right to put his trust in Hong Kong’s fair and open courts

SCMP 2013-06-14
A17 | INSIGHT | Dennis Kwok

Snowden right to put his trust in Hong Kong’s fair and open courts

【Dennis Kwok says Edward Snowden’s trust in the independence of Hong Kong courts is well founded, given that any extradition to the US must satisfy a judicial procedure, whatever the politics】

Hong Kong has been thrust into the international spotlight after it was revealed that American whistle-blower Edward Snowden sought refuge in our city while he exposed the magnitude of America’s secretive state surveillance programme.

Snowden has reiterated his intention to stay and fight any extradition to the US, saying: “I have had many opportunities to flee Hong Kong, but I would rather stay and fight the US government in the courts, because I have faith in Hong Kong’s rule of law.”

The wisdom or otherwise of Snowden’s choice has since been much debated in the international community and here in Hong Kong, with some casting doubt over how the Hong Kong government would react to pressure from the United States for extradition. Those who do, however, are missing the crucial point, one that Snowden appears firmly aware of: even if our government should succumb to political pressure at home or from abroad, his fate would ultimately be decided by our courts.

The key lies in our common-law legal system, which is based first and foremost on the rule of law and the independence of the judiciary. Judges are supposed to, and do, decide cases based solely on the Basic Law, local legislation and common-law principles. For extradition of “fugitives” from Hong Kong to the US, the legal procedure is contained in the extradition treaty signed between the city and the US in 1996 and in the Fugitive Offenders Ordinance enacted in 1998.

If and when the US government makes a request for extradition, the Hong Kong government would have a legal obligation under the extradition treaty to consider ordering the arrest of Snowden, who would then be brought before a court of law as soon as possible following his arrest.
From there on, it becomes a judicial process, much like those in any other common-law jurisdictions. The court would have a duty to assess the validity of the extradition order, the underlying evidence, and the charges brought against Snowden.

As a defendant fighting extradition, Snowden would be offered full legal representation, time and resources to fight his case and, most importantly, the guarantee of due process and the right of appeal to the Court of Final Appeal.

In court, Snowden could well argue that the charges he faces fall under the “political offences” exception, as provided for under the extradition treaty and our local legislation. Under this exception, a person cannot be extradited if it appears to the court that the offence he is charged with is “of a political character”, that the extradition request was “in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions”, or that he might be prejudiced at his trial for the same reasons.

Again, the question of whether a case falls under the political offences exception would ultimately be a matter for our courts – and the courts alone – to decide. This stands in sharp contrast with the position in the US, where the competent authority to decide on this question is the US Department of State, which is responsible for America’s international relations. Its decision would be heavily influenced by political considerations.

There is nonetheless one potential complication with the Hong Kong extradition process.

The extradition treaty between Hong Kong and the US specifically provides that the central government in Beijing can veto any decision to extradite Snowden on the grounds that it would contravene “the interests of the People’s Republic of China in matters of defence or foreign affairs”.

This proviso was included because even though we enjoy a “high degree of autonomy” under the Basic Law, matters of defence and foreign affairs are strictly within the ambit of the central government. In other words, if Beijing considers that it would not be in the national interests to extradite Snowden to the US, then it could put a stop to the process. However, no matter what the central government or the US government may wish to do, Snowden’s rights under the extradition procedure, including his right to defend and fully argue his case, are well protected and shielded from all geopolitical considerations, as these matters would be dealt with by our legal system based on the rule of law.

Snowden chose to come to our city because he believes we “have a spirited commitment to free speech and the right of political dissent”.

He also said that his intention “is to ask the courts and people of Hong Kong to decide my fate”.
We have every reason to believe that the courts of Hong Kong would do just that in an open and fair manner. These are Hong Kong’s core values.


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