Edward J. Snowden, the 29-year-old government contractor who blew the whistle on the American government’s vast data-collection efforts, was last seen checking out of a boutique hotel here on Monday. The previous day, he released a video defending his decision to leak sensitive secrets and explaining that he’d sought refuge in Hong Kong because it “has a strong tradition of free speech” and “a long tradition of protesting in the streets.”
This news stunned many local residents, especially those of us who advocate for human rights. Since 1997, when the British government returned Hong Kong to China after getting assurances that this former colony’s traditions of rule of law and individual freedom would be respected, the political, legal and human rights landscape here has become ever less conducive to the protection of civil liberties. Mr. Snowden — if he is still in town — has stepped into an unknown future in which the concept of “one nation, two systems,” promised us by Beijing, has become a fading memory.
Whether it was youthful naïveté or just ignorance, Mr. Snowden’s positive view of Hong Kong no longer matches the reality. Shortly before his arrival, the international organization Freedom House ranked Hong Kong 71st in the world in protection of political rights and civil liberties. Reporters Without Borders has dropped Hong Kong on its ranking of press freedom to No. 58, from No. 18 in 2002.
Mr. Snowden’s initial choice of Hong Kong as a place of refuge may not have been entirely illogical. Here, he met with two journalists from The Guardian and a documentary filmmaker. Hong Kong remains a hub of the global media, not least because of its proximity to the economic boom in southern China and the ease of access to many other Asian cities. The publicity could complicate efforts by the United States to charge Mr. Snowden and have him deported.
But the local coverage of Mr. Snowden’s case, which has largely ranged from bemused to unsympathetic, helps underscore the erosion of press freedom since 1997. A poll conducted last month by the Public Opinion Program of the University of Hong Kong found that nearly half (48 percent) of respondents believed that the local news media practiced self-censorship. These readers are on to something. More than one-third (36 percent) of media employees responding to a survey by the Hong Kong Journalists Association in April and May 2012 said that they or their supervisors had practiced self-censorship in the past 12 months.
This should be no surprise, since many local media owners have business interests in mainland China that they need to protect. Many of them have even accepted various honorary political titles in the People’s Republic of China, even though doing so poses an obvious conflict of interest, in perception if not reality.
If Mr. Snowden is still here, he needs to know that he is now on a special piece of “autonomous” Chinese soil — a legal limbo where police officers had not long ago restrained and detained a journalist who posed questions to visiting Chinese leaders related to the Tiananmen Square massacre of June 4, 1989, effectively blocking him from covering his story. The government has denied journalists access to important events and increased the flow of state-sanctioned news reports to media entities staffed by “official reporters.”
In 1984, when Margaret Thatcher and Deng Xiaoping negotiated the gradual, peaceful transfer of Hong Kong from Britain to China, the Beijing government promised a high degree of political autonomy and maintenance of the rule of law — one of the best legacies of 155 years of colonial rule. The gradual erosion of that legacy, and the uphill battle that civil liberties advocates have had to fight each year, has been one of the most dispiriting developments since the transfer and means that Mr. Snowden’s position, if he is still here, is tenuous.
Hong Kong has autonomy in its immigration policy, but foreign affairs and national defense are the responsibilities of the central government in Beijing.
Although China is a party to the Refugee Convention of 1951, its protections were never extended to Hong Kong, and so there is no legal right, per se, for foreign nationals seeking asylum here. The United States and Hong Kong have a bilateral extradition treaty, and American federal prosecutors are reported to be preparing charges against Mr. Snowden.
However, foreigners may still approach the office of the United Nations High Commissioner for Refugees here and seek asylum and resettlement elsewhere. (Mr. Snowden mentioned Iceland as one possible destination.) Mr. Snowden, if he faced imminent arrest, could also apply to the Hong Kong government against any orders to remove him to a place where he might face cruel, inhumane or degrading treatment or punishment. (Given the treatment of Pfc. Bradley Manning, the WikiLeaks whistle-blower, Mr. Snowden would have at least a plausible case.)
Contrary to media reports, these protections offer a possibility, however slender, that the local judiciary — whose members were largely trained under the British system and have shown admirable independence — might protect him. It’s not clear if any crimes Mr. Snowden might have committed would have been crimes under Hong Kong law — a prerequisite for extradition. The United States might also have to promise not to impose capital punishment on Mr. Snowden — which could be a major sticking point. Finally, our judges would have to make sure that any removal proceedings would be consistent with the International Covenant on Civil and Political Rights, which our judges (unlike their American counterparts) take seriously.
All that said, Beijing holds the cards. In 2004, a Libyan dissident, Sami al-Saadi, and his family were reportedly detained by the Hong Kong authorities and forced back to Libya, without due process of law. Mr. Saadi complained that American and British intelligence officers took part in his forcible repatriation. He was subsequently subjected to torture and inhumane treatment. He has sued both the British and Hong Kong governments.
Our judiciary, however vital, has its limits. The Hong Kong Court of Final Appeal is our highest court. But if a court case is understood to involve the Basic Law — the quasi-constitution of Hong Kong — the court can request from the Standing Committee of the National People’s Congress, a political organ in Beijing, a reinterpretation of the Basic Law. China may also initiate its own request for interpretation — bypassing the judiciary entirely, though such pre-emptive action, in this case, could be bad for Beijing’s image, as it could be seen as caving in to American demands, especially so soon after last week’s summit meeting between President Obama and China’s president, Xi Jinping.
These legal distinctions may seem confusing — and they confuse even Hong Kongers. They also explain why the United Nations Human Rights Committee has expressed concerns that such a “mechanism of binding constitutional interpretation by a nonjudicial body may weaken and undermine the rule of law and the independence of judiciary” in Hong Kong.
Mr. Snowden may have left Hong Kong, or be on his way out. Nevertheless, because he has shared, even briefly, in the legal uncertainties Hong Kongers have experienced since 1997, his case might at least draw greater international attention to the precarious state of individual freedoms here.
Law Yuk-kai is the director of Hong Kong Human Rights Monitor, an advocacy group.