Everyone in Hong Kong is Celebrating the Triumph of Rule of Law In the Snowden Case – But Is This Really a Celebration of Law, or Politics under the Cult of Rule of Law?

For the last week or so, Hong Kong has been (very publicly) celebrating the “rule of law” that it claims it has exhibited in letting Snowden leave the country despite strong U.S. pressure to arrest and extradite him.  The Hong Kong government made this official statement after Snowden left Hong Kong.

The US Government earlier on made a request to the HKSAR Government for the issue of a provisional warrant of arrest against Mr Snowden. Since the documents provided by the US Government did not fully comply with the legal requirements under Hong Kong law, the HKSAR Government has requested the US Government to provide additional information so that the Department of Justice could consider whether the US Government’s request can meet the relevant legal conditions. As the HKSAR Government has yet to have sufficient information to process the request for provisional warrant of arrest, there is no legal basis to restrict Mr Snowden from leaving Hong Kong.

Hong Kong Chief Executive Leung Chun-ying later cited the government’s action as “a good example to illustrate the rule of law and the procedural justice that we uphold.”  The people of Hong Kong for the most part do back Leung’s sentiments.  Even those who suspects illicit political motives seem to concede that Hong Kong did right following its laws, protocols and procedures.

While I am proud of Hong Kong in standing up to U.S. in the Snowden affairs, I urge caution that this is a triumph for rule of law. Rule of law connotates an absence of arbitrariness, an objectivity that is devoid of human whim and of politics.  But if the public thinks the Snowden case resulted from an objective, fair and impartial application of rules, I urge them to think twice.

Before diving into the law, let’s consider the the Snowden case from both sides.  The Hong Kong side has claimed – rightly so – that it is merely following the procedures and rules set forth under the U.S. – Hong Kong Extradition Treaty.  As Leung exaplained in a subsequent interview, the case was complex and the U.S. requests contained several problems that the Hong Kong side was obligated under the law to follow up. The most important of these questions appear to be:

1. Of the three charges the U.S. filed against Snowden (theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person), the Hong Kong side seems to find the second and third charge (Patriot Act charges) problematic in the sense that they were neither explicitly listed under Article 2, Section 1 of the extradition treaty nor did Hong Kong have corresponding laws as required alternatively under same section of the treaty. (第一，美国政府向斯诺登提出的刑事指控，特别是第一及第二项，即未获授权泄露国防资料和情报资料，是他们认为在一九九六年美国与香港所签订的协议第2条 下，属于哪一条条款。我刚才已说，他们对斯诺登提出的起诉，一定要在属第2条下的罪行才可提出移交，所以我们要求澄清他们所依靠的是第2条下的哪一条条 款。)

2. There were several question of evidentiary nature that the Hong Kong side would like the U.S. to present more information on. (第二项我们要求的资料涉及美国政府将会依赖的证据的一些相关法律问题，因为文件中并无清楚交代他们将会用的证据，而当中在香港的法律会衍生一些问题，所 以有必要澄清。)

3. There were other miscellaneous questions, including inconsistencies surrounding Snowden’s middle name. According to Hong Kong’s immigration record, Snowden’s middle name is James; according to his diplomatic documents,  it is Joseph; according to U.S. court documents, it is “J.” (第三，都是一些其他基本资料需要澄清，我可以举两个例子。例如在我们有的资料和文件中，发现斯诺登的英文名字有出入。在外交文件用的名字是Edward James Snowden，在我们有的入境纪录中，斯诺登的名称是Edward Joseph Snowden，所以外交文件用了James这个middle name，入境纪录中是Joseph这个middle name，而美国司法部提交的美国法院文件只用Edward J. Snowden这名字。这三个名字并非完全一致，故此我们认为有需要澄清，否则，当发出临时拘捕令时，可能引伸法律问题。)

Given the circumstances, Hong Kong could not just arrest Snowden; it had to await response from the U.S. When the U.S. did not respond in time, it had no choice but to let Snowden go.

On the other hand, the U.S. has accused Hong Kong of renegading its treaty obligations and not respecting the rule of law (see, e.g., this report and Hillary’s comments). According to the report just linked,

White House Press Secretary Jay Carney said Monday that China and Hong Kong made a “deliberate decision” to let National Security Agency leak source Edward Snowden leave Hong Kong for Russia, and that it “unquestionably” serves as a setback to U.S.-China relations.

…

“At no point, in all of our discussions through Friday, did the authorities in Hong Kong raise any issues regarding the sufficiency of the U.S.’s provisional arrest request,” the official said. “In light of this, we find their decision to be particularly troubling.”

…

“We are just not buying that this was a technical decision by a Hong Kong immigration official,” he told reporters. He said that the White House has expressed “frustration and disappointment” with both Hong Kong and China over Snowden’s departure.

The most interesting observation to me is how Hong Kong and U.S. – both considered to be model societies run by “rule of law” – can be so far apart on the legal question surrounding Snowden’s status.  Yes, the two sides have different politics.  But surely the law and the facts must be clear.  Something has got to give.  Either one side is flat-out lying about the law (there might be a softer, more polite term, but you get my point), or the rule of law is not as robust or as objective as advertised.

I think the latter is the more convincing case.

The Hong Kong – U.S. Extradition Treaty explicitly provided for the two sides to request extraditions of those convicted or accused of crimes.  It also provides for making fast-track requests for making provisional arrests for urgent cases. In Snowden’s case, the U.S. requested for a provisional arrest, which is simpler to get than a full extradition.

Article 10, Paragraph 2 and 5 of the treaty states:

The application shall contain a description of the person sought, information as to his whereabouts, an indication of intention to request his surrender, a statement of the existence and terms of a warrant of arrest … a statement of the maximum punishment that can be imposed or the punishment that has been imposed for the offence, and a statement of the acts or omissions (including time and place) alleged to constitute the offense.

…

The provisional arrest of the person sought shall be terminated upon the expiration of sixty days from the date of his arrest if the request for his surrender supported, as required, by the documents referred to in paragraphs (2) to (4) Of Article 8 have not been received by the requested Party. This provision shall not prevent his re-arrest or surrender if the request for his surrender is received subsequently.

But even the simplified procedures for provision arrest is not determinative – does not dictate a pre-determinative, objective outcome.

Case in point, consider each of the set of questions Leung raised: to the American side, the first set of questions provided by Leung above (requiring crimes to be listed or exist in both jurisdictions) might look entirely irrelevant. They relate to a full extradition as described in Article 1 and 2, not a provisional arrest under Article 10, someone might point out.  Also, even if some questions might how surround some of the charges (specifically the Patriot Act charges) would be handled under Article 2 of the extradition treaty, at least one  (i.e. government theft) appears to be on solid grounds. Snowden should have been apprehended on that ground alone.

Good points.  But it’s not the only outcome allowed by the law.  Another rational official can definitely argue he would be within the bounds of the law to push back the way Leung did.

Article 10, Paragraph 2’s requires “a statement of the … terms of a warrant of arrest … a statement of the maximum punishment that can be imposed …, and a statement of the acts … alleged to constitute the offense.” Surely, Article 10 does not stipulate that any mere statement regarding the alleged crime is sufficient, as the American side seem to impute by their “reading” of the law.  The statements cannot be so vacuous and unfounded as to enable or embolden mere fishing attempts by the requester party.  That would be an overreach of law and against the model of restraint that lies as the basis of any model of rule of law.  When the crimes charged are not listed in the treaty and have no corresponding counterpart in the requested party’s jurisdiction, as required for a full extradition, it is reasonable for the requested party to ask for requesting party for further clarification, as Leung did.

As for multiple charges made, with at least one containing errors, it is not the responsibility of the requested party to try to guess what those mistakes might be and how they might be fixed. When two of the three charges submitted by the U.S. for provisional arrest appears faulty under the treaty, Leung is justified in pushing the whole thing back for clarification.

To the American side, the second set of questions requesting for more information on evidence may also not seem relevant to an Article 10 arrest. While Article 8 Paragraph 3 requires the American side to provide for evidence that supports a prima facie case that Snowden is guilty of the alleged crimes, those can be supplemented later and are not required for a provisional arrest.  Yet that result is not the only result allowed by the law.  Leung might argue for example that Article 10’s requirement for “a statement of the acts … alleged to constitute the offense” is not automatically satisfied with any evidence. Article 10 is not a carte blanche to conduct “fishing expeditions.”  That would be against the very notion of due process that is at the foundation of Hong Kong’s claws.  Clearly, the correct reading of Article 10 is to require some substantive evidence that is compatible with Hong Kong’s notion of due process.  If in the eyes of Hong Kong officials the evidence is lacking for a preliminary arrest, it is certainly within Hong Kong’s rights to request for more information.

To the American side, the third set of question regarding Snowden’s middle might sound like a technicality.  (Funny thing about this accusation is that whenever the cold logic of the dictate a result that one does not see as just, fair or right, one will always see the result as a”technicality,” rather than a result of the rule of law. ) The U.S. side could point out that if the “confusion” surrounding Snowden’s identity did not prevent Hong Kong authorities from confirming Snowden’s departure from Hong Kong, it should not have prevented Hong Kong authorities from arresting Snowden.

That is a good point.

Nevertheless, this is also not the only result allowed by the law. Leung might point out that Article 10 clearly requires a clear, unambiguous description of the person being sought. It is the whole point of Article 10.  Call it a formality if you must. But sometimes, the most basic notions of due process hangs on the  fulfillment of basic formalities. Hong Kong is a busy and important international hub of people. Article 10 does not provide for a dragnet of arrests of peoples in hopes of catching one right one.  When the U.S. fails to provide the correct name and passport information on Snowden, Hong Kong had every right to ask for further clarifications.

By now, hopefully the reader can see that even in procedural cases that are as simple and straightforward as this, the law is not determinative.  The law can always be streteched and flexed – or pruned and made rigid as the case may be – in a way to provide for the just result, to prevent the law from becoming just a bunch of technicalities.  People equally well-trained in the law applying the same facts and the law can reach widely diverging views on what the law dictates.  It is not that some bad people have misapplied the law.  This is an inherent part of the art of law.

Imagine if Snowden had stayed in Hong Kong, and we are now to decide on the full extradition.  How do we expect the “rule of law” to do?  Has Snowden committed a criminal law in revealing alleged “state secrets”?  Or is Snowden merely a whistleblower who has called out on an embarrassed government?

In the U.S., freedom of speech is cherished.  Should a judge defer to the government and buy the government’s assertion that Snowden has placed the U.S. under danger, or refute such logic as scare tactics by a wayward government?  In the lingo of American First Amendment jurisprudence, does Snowden’s action lead to “imminent lawless action,” thus arising to a punishable act, or at most cause “bad tendency” and government inconveniences – in which case his acts should be protected by freedom of speech, as the danger to the state is too remote, too unformed as to be an overburnden on the freedom of speech if given weight?

I think reasonable people can disagree on the nature of Snowden’s acts. There are sufficient rhetoric, doctrines, and legal precedence to judge Snowden either way.  The rhetoric, doctrines and legal precedence don’t give force to the decision.  They are just the available ingredients.   It’s how you choose and use the in ingredients that matters.  The how is something that’s never made explicit in the law.  But it is the heart of the art of the law…

But some might argue, even if I am right, the rule of law is still important for the independence it provides from the political process.  But I ask, why is that better?  What makes the politics of judicial officials better than that of other branches of government?  Sure, one might argue that politics can be too quick to judge.  The law – with its systems and rules – allows everyone to have a chance to defend himself. But in human history, there have also been many instances of people who cannot seek justice facing the stern impersonal and cold face of the law, where people have to turn to kings and emperors or other officials and patrons for mercy and justice. To have faith in the legal process to the exclusion of the political process is to put blinders on the human experience.

The fact that politics need to be checked is a political assertion.  It is not equivalent to elevating the cult of the rule of law into a religion  … or even (gasp) a human right!

In sum, here are some of my thoughts on rule of law as it applies to China, as I shared with others in a recent email….

To be really short, rule of law is a misnomer. Any lawyer will tell you how most cases can be won one way or the other. That’s because law is not determinate (go google it, and read up on it, if you want, it is an important topic). Law includes doctrines (theories, stories, narratives, angles, etc.) that cover all sides. And it is an “art” of laywers pick the side that wins your case. Judges can pick either. And there is no right or wrong answer. If there does seem to be a right answer, it’s because the political environment frames it. But that’s not really rule of law…

The judicial branch is only as independent as the politics allow for it. The U.S. has several interesting cases earlier in its history that shows how the justices reframe from hot potato decisions because they know they will be ignored. Same today. Judges will decide to the extent the political process wants judges to decide, but they will not because they don’t want to be ignored and pass the hot potato instead. Again, this is about worship of law, not law that is eternal truth.

What makes judges any good to make important social decisions? They are trained in the art of law – not on justice, not on morality, not on social wefare… The workings of law has no soul. We simply trust judges will have souls … but that has to do with our worship of law again … not law per se.

Laws don’t change people’s behavior. Politics does. So about that jailwalking thing [there seems to have been several recently comments unanimously touting that China could solve the problem with “tougher laws.”]. Pass the law and you’ll be laughed out of the ball park like those prohibition laws. Jailwalking laws work if there is political force behind it, when in the public’s eye there is legitimacy. In the west, law has been the mechanism to highlight / accentuate / put in writing political resolutions. Fine. But that doesn’t mean law is what changed people’s behavior. IT’s something else. In another society, the same political force can appear as declarations from philsophers, religious leaders, or righteous moral leaders… To think rule of law is what does it is to be blindsided by history.

Most importantly, …the U.S. and the West likes to use rule of law to constrain government. I find that repulsive. Properly run government should be above the law. The law would be but one (among many) levers by which a government executes its policy. This trust in law is doubly false. First, the West doesn’t really follow it. Those in power have always been able to manipulate the law to justify whatever they want. Second, it is a sword to stunt Chinese government’s power and to put it on a defensive. Chinese historically know law can be manipulated, and they have been forthright about it, putting morality and righteousness above law. The West hasn’t. It simply manipualtes for its own purposes and prounce how righteous it is.

Rule of law is often equated with uniformity. Uniformity per se is not a good thing per se. You want the power of state to be molded by the circumstances after all. But what China has faced with in recent history that people see as lack of uniformity is not that per se, but a fragmentation of power. Local officials usurp it for their own use (war lords, local corruption, lack of professionalism, etc.). People look to rule of law to fix these problems, but to be honest, rule of law can be just as corrupt (U.S. law students reading case laws in all areas of the law, but especially constitutional law (they offer some of the most controversial case studies), will understand what I am talking about). What China needs is professional, more centralized power (less usurpation of central power). Historically, recent China has looked to West in seeing how “little corruption” and how much “professionalism” it has. That may be the case. But it’s not because of rule of law, just as it’s not because of Christianity, of European language, or even “rationality” (that’s another topic, I don’t believe you can have rationality really in politics; you can have legitimacy that looks to rationality, because rationality does not define, dictate, or predetermine politics), it’s simply because the environment for the West has been good (though bad for the rest of the world).