Should Hong Kong extradite Snowden? © Libertarian Legal Commentary, Hong Kong Edward Snowden, the whistle blower behind the June 2013 NSA intelligence leak, willingly chose Hong Kong as his safe haven while he released the secret information. From Hong Kong’s perspective, the natural question that follows would be: should Hong Kong extradite Snowden when the US prosecutes him for his ‘crime’? In fact it was only 2 days ago when I received a phone call from the Chinese University for a brief survey, and one of the questions asked was exactly that do I think Hong Kong should extradite Snowden. In terms of the legal circumstances however, the rules for extradition of criminal between Hong Kong and the United States is clearly written down in the 1996 Treaty (“The Treaty”). (A copy of which can be found following this link: https://bulk.resource.org/gpo.gov/documents/105/td003.pdf) The shortest answer to the question is – it all depends on which crime Snowden will be charged with. Article 2 of the Treaty specifies the list of crimes for which an offence will be subject to extradition. The list of crimes includes those one would normally expect – murder, rape, drug trafficking, money laundering, etc. There is no mention of any crime that Snowden will likely be charged – those related to national defence or espionage. However, there is a ‘catch-all’ clause in the Treaty that allows extradition when a crime is prosecuted by a person that is punishable by both the US and Hong Kong and which there will be a jail sentence for more than one year. Will this clause be good enough for the extradition to go through? Being a ‘defender’ of human rights, however, the US has built in some safeguards to the treaty that allows both parties to refuse to extradition. Prosecutions of a political nature (“that the request is politically motivated”), or when the criminal is a national of the related country, or when the punishment sought will be the death penalty, are some examples where extradition can be refused. Again, whether Hong Kong will be required to extradite Snowden will all come down to what crime he will be charged with and the maximum sentences following a conviction Of course, there are many questions of which the answers no one will know for certain – such as whether Beijing will step in and revoke/quantify/’interpret’ Hong Kong’s power to decide under the Treaty - afterall, there is no doubt that Beijing will have great concern over Snowden’s fate. Another question would be, what if Snowden’s visitor visa (assuming he entered HK as a visitor) expires before even the prosecution? Will he be deported back to the US before any chance of him fighting in the courts to stay in Hong Kong? As a libertarian, I offer him the sincerest thanks and admiration for performing this heroic act. And may the rule of law prevail during the legal proceedings that he will certainly face.
Posted on: Sat, 15 Jun 2013 15:02:32 +0000
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