Posted:  June 13, 2013

 

(June 17 update follows)

Helping Hong Kong protect its rights and freedoms was probably not foremost in Edward Snowden’s mind when he flew here from Hawaii to orchestrate one of the most serious leaks in United States intelligence history.  A cyber-expert and now ex-information technology administrator for the U.S. National Security Agency, he arrived in late May to tell his story and journalists from Britain’s Guardian newspaper arrived soon after to hear him tell it.    Its scoop concerned hitherto secret U.S. government surveillance programs with a global reach.  These, explained Snowden, are capable of tracking everyone everywhere, via their telephone and e-mail communications.  The information is being stored in giant data bases, for use in ferreting out terrorists and who knows what else.

As to why he took it upon himself to reveal this information, Snowden invoked the most basic of American values:  the public’s right to know … in this case that everyone’s private communications are being monitored by the government in this way.  As to why he chose Hong Kong to be his place of refuge from the long arm of American justice, sure to follow once his story was told, Snowden cited Hong Kong’s  “strong tradition of free speech,” a tradition of  people “protesting in the streets, of making their views known” (Guardian interview text, Hong Kong, June 9).

The great irony, of course, is that Hong Kong is now part of China and as traditions go in matters of free political expression, China and the U.S. are polar opposites.  Leaking state secrets is also one of several deadly sins in Beijing’s lexicon of state security crimes and punishment is severe.  During his interview with Guardian journalists Glenn Greenwald and Ewen MacAskill,  Snowden acknowledged the irony of an American coming to a place that was less free to publicize a story about threats to American freedom.

A POLITICAL WORK IN PROGRESS

           What he didn’t say is that he could not have arrived here at a more opportune time for Hong Kong’s own long-running struggle to preserve the tradition he so admires.  Local politicians and activists are constantly seeking legal issues to test and precedents to set in the hope of entrenching freedoms more firmly in local law and public practice.  This is because Hong Kong’s political rights and freedoms exist in a state of ongoing transition  …  meaning they are neither safe nor secure over the long term.  It is fear of the future that keeps alive the tradition of street protests Snowden cited.  There are no guarantees so people feel the need to keep up the pressure in that way.

This Special Administration Region of  China is protected from the rigors of mainland communist-party rule by Beijing’s one-country, two-systems promise.  It was part of the handover agreements made before Hong Kong’s 1997 return from British to Chinese sovereignty.  The trip-wire, often overlooked by outsiders, is the 50-year time limit decreed for the promise, which is due to expire in 2047.  That time limit is enshrined in Article 5 of Hong Kong’s Basic Law mini-constitution that went into effect in 1997.  It promises only that Hong Kong’s existing system and “way of life shall remain unchanged for 50 years.”

Meanwhile, intrusions from what Hong Kong has learned to think of as mainland political culture are constant and constantly increasing.  These include not-so-subtle reminders from Beijing officials and local Hong Kong loyalists that Hong Kong’s independent judges, attached as they are to their inherited British common law traditions, should learn to cooperate with the executive branch.  The pressures also include constant reminders both official and otherwise that Hong Kong must fulfill its obligations mandated by Article 23 of the Basic Law.   Accordingly, Hong Kong shall enact laws to “prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets …”   But for massive popular protests, this legislation would have been enacted in 2003.  But for the same kind of mass popular protest last year, a compulsory Beijing-oriented political studies curriculum would have been introduced for all students in all grades.  So intense have such pressures become that people are finally beginning to ask how it is supposed to end, and suggest the need to extend Hong Kong’s common law protections beyond 2047.

WHO NEEDS WHO MORE?

          Enter the Snowden case with all its global implications and suddenly the international spotlight is set to refocus on Hong Kong’s unique variant of life under communist rule to a degree not seen since 1997.  Snowden is also well aware if not about Hong Kong’s future at least about its present and the constellation of political sensitivities surrounding his case.

After dropping out of sight for a few days following his Guardian interviews, Snowden has just resurfaced to meet the local media.  He told the South China Morning Post (June 13) that he aims to make his stand here where he anticipates that the legal system and the “people of Hong Kong” will protect him.  And he is probably right.  The U.S. has well-used extradition arrangements with Hong Kong but both sides can refuse to extradite if a case is deemed political. Beijing also has the right to intervene if a case concerns national defense, foreign affairs, or (the ever-present catch-all) matters related to the “essential public interest or policy” of the People’s Republic.

It is possible that a case could be fast-tracked through the system but probably not this one since Hong Kong’s endangered rule-of-law will be put to the test in the glare of international publicity.  Its Chief Executive, Leung Chun-ying, who has stubbornly refused to talk about anything political since taking office last year, was in New York City when this story broke.  During his after-dinner speech at a Hong Kong Trade Development Council event on June 11, Leung suddenly found his political voice.   He waxed eloquent emphasizing that “we invest our time and energy in protecting our cherished core values, values that are shared here in the U.S.  Our effective rule of law, independent judiciary, unfettered media and full range of personal freedoms are all enshrined in our constitutional document, the Basic Law” (cyl2@ceo.gov.hk ).

Similarly, the U.S. Consul General here lauded the success of Hong Kong’s one-country, two-systems experiment in a speech only a few weeks ago. China protested his “interference,” but Beijing is also sparring with Washington at the highest levels over accusations about China’s cyber-espionage.  Snowden’s revelation that the U.S. has been doing something similar to Chinese cyber-systems for years should help to defuse self-righteous political indignation in Washington…  as should considerations about upsetting the delicate balance surrounding a rule-of-law case here with demands that  Snowden be extradited forthwith.

Then there are “the people of Hong Kong” in whom Snowden places so much trust.  By now he knows they are planning demonstrations and marches to demand that he be allowed to argue his case before the courts here.*  Human rights lawyers are standing by to represent him.  And what better timing:  the Civil Human Rights Front is just now organizing the annual July First protest march.  This commemorates the mass turnout on July 1, 2003 that inspired withdrawal of the government’s Article 23 national security legislation.  The front is among several groups who are speaking up on his behalf.

In all likelihood, therefore, Snowden will still be here a year from now while everyone stands back and lets Hong Kong’s ponderous judicial process take its natural course …  through multiple hearings, judgments, appeals, and maybe even a judicial review in the event all other avenues are exhausted.

( HKU professor Simon Young is providing some useful explanations on the legal process here in his media advisories: http://www.law.hku.hk/ccpl/)

*UPDATE, June 17:   The first serious demo on Snowden’s behalf was arranged for Saturday afternoon, June 15:  a short march from Hong Kong’s central district, up Garden Road to the U.S. Consulate General, and then on to Hong Kong government headquarters several blocks away.  Contrary to the strange account provided by CNN’s Nic Robertson, the turnout was better than the 200 that organizers had planned for …  they are required to estimate beforehand as part of  police procedures.  Police estimated turnout “at its height” to be 300, organizers 900 … it looked like something in-between.  Why he should have dismissed the significance of this hastily organized inaugural effort by comparison with the thousands who turned out for the decades-old June Fourth memorial is for him to explain.  But Claudia Mo must have regretted ever speaking to him.

Of all the points she made that afternoon, the only one he reported was her comment that the majority of the population couldn’t care less what happened to Snowden.   Robertson must have come straight to the demo from a government briefing since that has become the unofficial favorite government line for all pro-democracy activities of any kind here:  the “silent majority” couldn’t care less, etc., etc.

Claudia Mo is a Civic Party member and Legislative Councilor and, like Albert Ho of the Democratic Party, had a lot to say on Saturday against government surveillance wherever it comes from.  They meant China as well as the U.S. since everyone here has been complaining for years about the constant hacking and monitoring of personal communications directed from across the border.   The two of them carried on at length about Hong Kong’s need for guarantees of free political expression.  She was especially critical of Hong Kong’s Chief Executive Leung Chun-ying for refusing to comment on the Snowden case … obviously, she said, because he doesn’t dare speak for himself or for Hong Kong but is waiting for instructions from Beijing.

The main protest slogans denounced “big brother” government surveillance and opposed Snowden’s extradition.  Some 27 civic groups backed the demonstration.   Not included were pro-Beijing protesters.  A handful of them marched in a separate group to register their protest at the consulate, against U.S. surveillance only.    An opinion poll conducted by the Chinese University for the South China Morning Post (June 16) found, among 500 respondents, that:  50% were against Snowden’s extradition; 17.6% said he should be; and 32.4% said they hadn’t decided.  (Robertson’s reporting was broadcast on CNNI, but not everyone there missed the point.  A CNN on-line account by local reporter Alexis Lai covered all points.)

pepper@cuhk.edu.hk

 

 

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