Guest post by Brian Chan, Research Assistant, University of Hong Kong, Juris Doctor Candidate, Chinese University of Hong Kong.
On 10th June, an article from the Time Magazine puts forward a question “if you were on the run from the U.S. government, where would you choose to lay low?” The whistle-blower Edward Snowden, a former technical assistant for the CIA, chose Hong Kong after disclosing details of phone and internet surveillance by the U.S. National Security Agency.
According to The Guardian, he boarded a flight to Hong Kong in late May, and he has stayed there ever since to flee from possible prosecution. He chose the city because "they have a spirited commitment to free speech and the right of political dissent", and because he believed that it was one of the few places in the world that both could and would resist the dictates of the U.S. government.
Why would Snowden choose a place which is not even bound by the Refugee Convention? In his latest interview with the South China Morning Post, he says “my intention is to ask the courts and people of Hong Kong to decide my fate. I have been given no reason to doubt your [Hong Kong’s] system.” In fact, on 25th March, an important judgment, C and Others v. Director of Immigration and Others, was handed down from the Hong Kong Court of Final Appeal, re-affirming the high standard of justice required in torture, persecution, and human rights cases established in the landmark case FB v Director of Immigration . Justice Tang PJ says, “Director [of Immigration] is entitled to rely on UNHCR’s [United Nations High Commissioner for Refugees] RSD [Refugee Status Determination]. I would agree that the Director is entitled to give weight to a RSD by the UNHCR. But it is essential that the determination must be made by the Director and his duly authorized officers and that the determination must satisfy the high standards of fairness required.”
A high standard of fairness ensures claimants, inter alia, oral hearing, free legal representation, and screening performed by the government (in addition to that by the UNHCR). The court stresses that “given it is the practice of the Director, when deciding whether or not to exercise his power under the Immigration Ordinance to remove a refugee claimant to the country of putative persecution, to have regard to humanitarian considerations, and that whether such claim is well-founded, is a relevant humanitarian consideration, the Director must determine whether the claim is well-founded. Moreover, any such determination must satisfy the high standards of fairness required having regard to the gravity of the consequence of the determination.” Therefore, in conformity with the principle of non-refoulement, the government has the burden to screen and assess Snowden’s case independently, if he chooses to turn up and seek protection.
As to the possible pressure from the Mainland and the U.S., Professor Simon Young of the University of Hong Kong says he does not see any chance that Beijing could assume jurisdiction of any proceedings, while a Legislative Council member senior counsel Ronny Tong says “Snowden could only be extradited if there were a local law equivalent to that he allegedly violated in the U.S.” Hong Kong’s legal independence is to be Snowden’s safeguard, though in his interview with the Guardian he said he might eventually seek asylum protection from Iceland.
NSA whistleblower Edward Snowden: 'I don't want to live in a society that does these sort of things'. Source: The Guardian.