Edward Snowden’s Right of Abode

Edward Snowden’s Right of Abode June 25, 2013

On 23 June, Edward Snowden left Hong Kong Special Administrative Region (SAR) en route to Moscow. As some noted, Hong Kong SAR’s government is now probably breathing a sigh of relief, for while they defied the United States’s request for Snowden’s extradition, Snowden is not really Hong Kong’s problem any more.

But interestingly enough, you could say that Snowden’s choice of Hong Kong elevated the SAR to global political consciousness. In an interview with the Guardian‘s Glenn Greenwald, Snowden’s choice of Hong Kong in fact highlights the political experiment that is the SAR’s ‘one country, two systems’ arrangement with the People’s Republic of China (PRC). Noting that there has been a ‘long tradition of free speech’ in Hong Kong, Snowden made the choice to go to Hong Kong as a strategic decision:

So there’s a couple assertions in those arguments that are sort of embedded in the questioning of the choice of Hong Kong. The first is that China is an enemy of the United States. It’s not, I mean, there are conflicts between the United States government and the Chinese PRC government, but the peoples inherently, you know, we don’t care, we trade with each other freely, we’re not at war with, you know, armed conflict, and we’re not trying to be; we’re the largest trading partners out there for each other. Additionally, Hong Kong has a long tradition of free speech. People think, oh, China, great firewall. Mainland China does have significant restrictions on free speech, but the people of Hong Kong have a long tradition of protesting in the streets, making their views known, the Internet is not filtered here any more so than any other Western government, and I believe that the Hong Kong government is actually independent in relation to a lot of other leading Western government.

I’m not sure what he means by ‘long tradition’; is he citing, for example, the July 1 demonstrations against Article 23 in 2003? the Million Man March in protest of the Tiananmen Incident in 1989? the 1966 Star Ferry and 1967 tear gas riots led by Marxist agitators? Is he ignoring the purposeful de-politicization of Hong Kong by colonial governments during the MacLehose Administration in the 1970s and going with the 1990s Patten Administration’s encouragement of democracy in light of the 1997 handover? Is he talking about post-80s young people’s democratic movements against, say, the high-speed rail connection between the New Territories and Shenzhen that threatened to demolish the Choi Yuen Chuen village? What does he mean by ‘long’?

But the point is this: now that Snowden has elevated the politics of Hong Kong to a global eye, he has departed, and it seems that Hong Kong can move on. The South China Morning Post‘s editors thus write: ‘His departure from our city closes the Hong Kong chapter of his story; our government did as it should and Beijing was wise to keep a distance. The best interests of the nation and Hong Kong have been served.’

Not so fast.

As political theorist Seyla Benhabib suggests, questions about political sovereignty are often best examined through migration policy because it’s there that the rubber hits the road for sovereignty issues. Because Snowden is on the move, it might be worthwhile to reflect–especially in the wake of the calm following Snowden’s departure–on what light the Snowden case sheds on Hong Kong’s sovereignty vis-à-vis its migration laws and policies.

It’s in that light that we should look at all of this within the contested framework of Hong Kong’s Basic Law, the constitutional document that establishes the SAR’s political autonomy in a ‘one country, two systems’ arrangement with the PRC.

Early on, some Hong Kong immigration lawyers speculated that this Snowden affair would go on for years as Snowden might appeal to having committed a ‘political offence’ and thus seek an asylum case against extradition whose results would be determined first by the Chief Executive and then by the Hong Kong courts. This in turn brings up the question of the right of abode as spelled out by Hong Kong Basic Law’s Article 24:

Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.

Article 31 of Basic Law might also be pertinent:

Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization.

Note well that in Article 31, it doesn’t say that everyone has the right of entry into Hong Kong; it’s just Hong Kong residents, and true to form, political dissidents associated with the Tiananmen Incident, the Falun Gong, and Free Tibet movements have been denied entry. One would think that Snowden would not be someone that Hong Kong would have wanted to let in; of course, when he got into the Region, he was still a card-carrying employee of Booz Allen Hamilton, meeting secretly with Guardian journalists until he revealed himself two days after the publication of the pieces for which he had served as the source.

What’s interesting about all of this is that when Snowden was fighting his extradition, he appealed to the good will of the Hong Kong people. You may recall him saying to the South China Morning Post: ‘Let the Hong Kong people decide my fate.’  Whether he should be extradited should be a decision that the Hong Kong people make, he was saying, whether that’s Hong Kong people as a civil society, as a Chief Executive and Legislative Council that is not elected by universal suffrage, or as a judiciary that is itself under some political contestation over its independence from Beijing. Regardless of what he meant by ‘Hong Kong people,’ though, when Snowden boarded his plane to Moscow, the statement issued by the Hong Kong government and by Chief Executive Leung Chun-ying re-visited these statements, speaking for Hong Kong people in the name of their ‘one country, two systems’ political autonomy, their legal framework for entry and exit, and their sovereign interest in knowing why their computers had been hacked by the American military. Leung in turn was operating on good grounds in terms of public opinion: the Sunday Morning Post had showed that 49.9% of Hongkongers were against Snowden’s extradition.

Yet what I have found curious is that these issues of entry, exit, and abode in the hands of the Hong Kong people have not been connected to the larger political debates within Hong Kong about migration, especially the migrations of domestic workers and of children born in Hong Kong hospitals to mothers with hukou (place registration) in the PRC. These cases were also about the rights of entry, exit, and abode, but unlike Snowden, the domestic workers and the mothers from China have not fared very well in Hong Kong public opinion. Moreover, because Hong Kong’s government has often been averse to political dissidents, one wonders why Snowden seems to be given preferential treatment.

In that light, let me observe some things that are missing from the Snowden story, at least from the Hong Kong side of things. As this alternate story unfolds, it might suggest that these elements of the Snowden story went missing because they would also have revealed the cracks in the post-1997 Hong Kong regime and the fault lines in Hong Kong’s nascent civil society, both of which would distract from Snowden’s leaks about United States cyber-surveillance. Restoring them to the picture, however, will paint a more interesting picture of Hong Kong, the city from which Snowden left and why it was in the interest of the regime to let him go, which in turn will lead us to what geographers might call a more critical geopolitics, an approach that critiques the use of violence and human rights abuses by states attempting to maintain their own sovereignty. Snowden has shown the global public the resources that we might use to critically interrogate the political geography of the United States’s surveillance power, but what hasn’t been adequately explored is his revelation of Hong Kong’s political fissures as well.

Here are the issues:

Where is the debate over the children of mothers with PRC hukou? Since the late 1990s, there has been a massive debate in Hong Kong over whether people from China can come to Hong Kong to give birth and then claim the right of abode for their children. In Ng Ka Ling v. Director of Immigration in 1999, the Court of Final Appeal considered whether it was constitutional for the Immigration Ordinance to require that at least one parent of a child born in Hong Kong to be a Hong Kong permanent resident before the child had the right of abode. Referencing the International Covenant of Civil and Political Rights (ICCPR), the Court found that the right of abode was a fundamental human right both in international law and in Article 24 of Hong Kong’s Basic Law. It ruled that Hong Kong had to acknowledge that if children were born in Hong Kong, those kids had the right of abode regardless of the legal status of their parents. But in a crazy turn of events, the Hong Kong Government argued that it would not be able to sustain Hong Kong economically if ‘hordes’ of people came to Hong Kong to give birth. They then referred the judgment to Beijing’s National People’s Congress for a re-interpretation of Basic Law to say basically that the right of abode does not apply to children of those without permanent residence in Hong Kong. This sparked a society-wide debate over a) whether the Hong Kong Government and its judiciary were sufficiently independent of the Beijing regime and b) whether it was both legal and economically viable for these mothers from China to come down to Hong Kong to give birth. Because of the Government’s continual reporting that allowing mothers from the PRC to claim the right of abode for their children would be economically unsustainable, the bulk of Hong Kong citizens decried the idea, calling for Hong Kong citizens to come first before these non-Hong Kong people used up their social services. In other words, political freedoms were sacrificed for seeming economic pragmatism in the civil society debates. One thus wonders then in light of the Snowden affair whether the same logic would apply for the hypothetical ‘hordes’ of political asylum seekers whose actions cause international geopolitical havoc. The support of Hong Kong people for Snowden suggests otherwise, which begs the question: why China mothers, and not Snowden

Where are the domestic workers? More recently in 2011, the case Vallejos v. Commissioner of Registration ignited yet another public spat about the right of abode. Five foreign domestic helpers from the Philippines filed a suit when their applications for the right of abode were rejected even though they had worked and lived in Hong Kong for seven years. When the Court of First Instance struck down the provisions in the Immigration Ordinance that prevented them from applying, Hong Kong citizens associated with the Democratic Alliance for the Betterment and Progress of Hong Kong opposed the decision, saying that permanent residence for foreign domestic workers would generate a hugely negative economic impact because they would become less affordable. When the Government appealed the decision to the Court of Appeal, the Court of First Instance’s progressive decision was overturned; in 2013, the foreign domestic workers’ appeal to the Court of Final Appeal was rejected. This again begs the question. If Snowden had stayed in Hong Kong for seven years, would he have been working and contributing to Hong Kong’s economy?  If not, then how is it that the right of abode applications for foreign domestic workers who do contribute to the economy get rejected, while during Snowden’s stay, legal speculations had it that Snowden could stay in Hong Kong for years to come? In other words, why Filipina (and Indonesian) domestic workers, and not Snowden?

Where are the other political dissidents? In addition to the questions of right of abode, there is also the question of entry and exit. As I noted before, political dissidents in China, Tibet, and Taiwan have sometimes been denied the right of entry and exit. I understand that Snowden did not enter the country as a political exile, but as a contract worker for an intelligence agency. And yet, one wonders why he was allowed to leave–aside from all of the tricky legal maneuvering that the Hong Kong and PRC governments conducted vis-à-vis the extradition order–when other East Asian activists do not share this privilege. After all, these political dissidents also share one thing in common with Snowden: the Falun Gong, the democracy activists, the Tibetan activists, and the Taiwanese activists are all political, ethnic, and/or religious minorities on Chinese territory. What makes Snowden’s minority in this region any different from the other political dissidents’ minority statuses, other than the fact that Snowden is a white American male and all of these people are East Asian minorities? In other words, why the Greater China democracy activists, and not Snowden?

And finally, what is the Leung Chun-ying Administration really doing here? The 2012 Chief Executive Elections in Hong Kong was a time of political crisis. The two viable candidates for the position–Henry Tang and Leung Chun-ying (sorry, Ho Chun-yun)–became locked in a tight political race, especially for the approval of the Chinese Central Government (whose decisions often affect the votes of the Electoral Committee of 1200 members from various sectors of Hong Kong society, as there is not universal suffrage in Hong Kong). What happened was that Henry Tang, the originally favoured winner of the race, fell into scandal because of an illegal structure he had erected at his home. Fighting for his political career, Tang tore into Leung at a debate, revealing that during a secret meeting, Leung had advocated violent police force against the July 1 demonstrators in 2003 against Basic Law’s Article 23 and the anti-sedition laws that it would generate. While this revelation ultimately sealed Tang’s downfall (as he had illegally revealed proceedings from a secret, confidential meeting whose happenings could not be verified), it also provoked a scare among Hong Kong citizens that Leung was in fact a secret Communist Party member (a claim corroborated by the memoirs of an outed secret Communist member, Florence Leung), that he would use authoritarian tactics to quash freedom of speech, and that his governance would weaken Hong Kong’s autonomy as he was himself allegedly a Party member loyal to the Beijing regime. Indeed, as the elections turned out in favour of Leung, demonstrators hit the streets wearing cardboard military tanks to protest what they perceived would be Leung’s use of authoritarian tactics similar to the 1989 military crackdown on protesting students in Beijing’s Tiananmen Square. That Leung thus let Snowden out of Hong Kong, invoked the autonomy of Hong Kong, and spoke about the ‘position of Hong Kong’ in a way that suggested that he was listening to the people is a fascinating political move aimed in some part to restore his reputation, especially in an Anglophone global geopolitical stage. That Leung then said exclusively in Cantonese that any challenging foreign policy issues had to be negotiated with the Chinese Central Government suggests, however, that in this political dance, Leung is very much still in line with Beijing. In other words, while Snowden was certainly no Chinese spy, he most certainly allowed himself to be used as a pawn in the unfolding drama of Hong Kong and PRC politics.

The reason that this stuff is important to our global public conversation is that Snowden has brought Hong Kong SAR into the global spotlight.  But without these geographically contextualizing questions, it would unclear what exactly he reveals about Hong Kong. Put into context, though, Snowden interestingly reveals through just being in Hong Kong who’s in and who’s out in terms of Hong Kong’s sovereign borders. In the above analysis, it would seem that Snowden is in, but Filipina maids, mothers from China, and East Asian political dissidents are out.

That the contrast is so blatantly that Snowden is a white American male should give us some cause for concern about global racism and the ways that it manifests in such banal ways. Indeed, we have been reminded of that banality in today’s United States Supreme Court decision, Shelby County v. Holder, 570 U.S. ___ (2013). Striking down section 4 in the 2006 revision of the Voting Rights Act, the majority opinion holds that the prohibition of tests for good character and morals, as well as citizenship, are unconstitutional because they are federal violations of the sovereignty of states to do what they want in terms of voting legislation. In addition, the majority opinion held that because voter turnout between blacks and whites were reaching parity, racism is a thing of the past and that extraordinary federal measures to prevent voter discrimination were not needed.  As Justice Ginsburg pointed out in her dissent, the ‘hubris’ of this decision is that it takes away the very provisions that have led to the prevention of voter discrimination and that once these measures are taken away, voter discrimination will begin again in earnest.

Racism is not over, Ginsburg points out. It’s an unfolding story.

As the Snowden case suggests, this story is not just an American one. The politics of race has global dimensions. Moving back to Hong Kong, we see that the legal structures to prevent racism remain nascent, which makes this Snowden case endlessly fascinating. Even with a Basic Law protecting the basic rights of people who reside in Hong Kong, the migration issues of entry, exit, and abode raise critical questions about how Hong Kong sovereignty works, especially when it comes to issues of race. Throw in Snowden, and it becomes altogether clear that there is certainly a racial dynamic at work that privileges white Americans over against his East and Southeast Asian counterparts in this Special Administrative Region.

And thus, the story of migration in Hong Kong is not over. This was but one episode in an unfolding story, and it needs to be discussed within its proper geographical context to maximize the insights we can glean about political sovereignty, migration, and the politics of race in a global context. In short, Snowden’s revelations about American cyber-surveillance are very important, but they are not whole story. The whole story is a geopolitical one, one in which race happens to be somewhere near the centre.

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