Hong Kong May Save Snowden Yet

By Todd Crowell

Hong Kong has taken Edward Snowden to its heart. That could complicate American efforts to formally extradite him back to the U.S. to face espionage or other charges. Anything that smacks of treason or carries severe penalties will play badly in the territory and stiffen its resolve to protect him.

Last week, a couple hundred people representing various civil liberties groups demonstrated outside of the American Consulate bearing signs such as "Defend Free Speech" and uphold "Hong Kong Law." A recent poll taken by the South China Morning Post reported that 50 percent of the respondents do not want to see Snowden sent back to the U.S.

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Snowden told one of his interviewers that his intention is "to ask the courts and people of Hong Kong to decide" his fate. That initially seemed touchingly naïve, but on reflection is beginning to look pretty shrewd. It is not known if this was serendipitous or calculated; either way, public opinion in the territory seems to be solidifying behind him.

Hong Kong has its own legal system separate from China. There are no provisions in its code for the kind of charges that Snowden is likely to face. The reason goes back to a seminal event in Hong Kong's post-handover history. On July 1, 2003, some 500,000 people, out of a population of only seven million, turned out to protest implementation of laws they thought would undermine civil liberties. It was the largest anti-government popular demonstration in Hong Kong since the Tiananmen Massacre in 1989.

At issue was legislation to enable implementation of a provision in Hong Kong's post-1907 charter which requires Hong Kong's government to "enact laws on its own to prohibit any act of treason, secession, subversion against the Central People's Government or the theft of state secrets ..."

That massive public show of resistance turned even normally "pro-Beijing" legislators from the business community against the proposed new law. Faced with imminent and embarrassing defeat, the government quietly shelved the law. It has never been revived.

How does this relate to Snowden?

Hong Kong has an extradition agreement with the United States, but any attempt to extradite Snowden would have to cite offensives that violate the laws of both countries. Money laundering, yes; insider trading, sure; corruption, no doubt.

But espionage? In a territory with no armed forces and no independent foreign policy? Had that demonstration not taken place nearly ten years ago, laws prohibiting "the theft of state secrets" would now be in force, and Snowden's goose may have been cooked.

Hong Kong does have an Official Secrets Ordinance, enacted in June 1997, just a couple days before the handover. Some provisions might be pertinent to Snowden, but it could also be argued that it is aimed at preventing exposing details of specific on-going criminal investigations rather than the general architecture of surveillance.

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Todd Crowell is a freelance writer based in Tokyo.

(AP Photo)

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