China v Jimmy Lai: a tycoon, a trial and the erosion of Hong Kong’s rule of lawComments Off on China v Jimmy Lai: a tycoon, a trial and the erosion of Hong Kong’s rule of law
By Verna Yu
Originally published by The Guardian on Dec. 15, 2022
The pro-democracy figure has been subjected to a ‘travesty of justice’ because the Communist party regards his power as a threat, experts believe.
Even before his jailing, Jimmy Lai knew he faced a grim future, but insisted on fighting his cause.
“Without fighting, we don’t have hope. We don’t know when we’ll win, but we’re so sure we’re on the right side of history, and time is on our side,” the founder of the vocal pro-democracy Hong Kong newspaper Apple Daily told the Guardian in August 2020 while on bail, five days after his arrest over allegations of foreign collusion.
Beijing’s national security law had come into effect two months earlier. Police had raided Apple Daily twice and arrested Lai. The company’s funds were frozen the following year, leading to the newspaper’s closure.
Now, Lai is likely to spend the rest of his life in prison.
His case has been held up as a symbol of the ruthless determination of the Chinese authorities to obliterate popular influence outside their control and use the law and judiciary as tools to suppress “reactionary” forces.
‘The authorities want to ensure he is ruined’
Lai, a 75-year-old UK citizen, has been behind bars since December 2020 for his part in the 2019 pro-democracy protests and unauthorised assemblies. He was sentenced on Saturday to five years and nine months in prison on fraud charges for violating a lease contract, but faces much more serious charges of conspiracy to publish seditious material and collusion with foreign powers under a national security law imposed by China in 2020.
Vaguely defined, the sweeping national security law prohibits acts of secession, subversion, terrorism and “collusion with foreign and external forces”, with a maximum sentence of life imprisonment for those found guilty.
Following the Hong Kong government’s attempt to ban British barrister Tim Owen from representing Lai, his trial – originally scheduled to take place this month – has been adjourned to September 2023. If found guilty by a hand-picked, three-judge panel acting without a jury, Lai faces a life sentence.
Critics say the treatment of Lai is completely against the spirit of the rule of law and reflects the authorities’ determination to lock up the high-profile China critic for good.
“China is using him as an example to threaten others … for the highest deterrent effect,” says Sang Pu, a Hong Kong lawyer and political commentator now based in Taiwan.
The legal process in Lai’s case – from his prosecution, prolonged detention, designation of national security judges and denial of a foreign lawyer – was part of a “sham trial” being manipulated by China, Sang says.
“Lai was the number one personality in Hong Kong’s civil society … the authorities want to ensure he is completely ruined,” he says.
Hong Kong’s leader, John Lee, last month asked China’s Beijing highest legislative body, the National People’s Congress standing committee, to clarify whether overseas lawyers could take part in national security cases. In the meantime, the authorities denied Owen a visa extension and he was forced to leave.
A Hong Kong delegate on the committee, Tam Yiu-chung, says barring foreign lawyers from working on national security cases “matched with the legislative spirit and logic of the national security law” and that national security defendants could be sent to the mainland for trial if they could not find a lawyer in Hong Kong.
Dennis Kwok, a former Hong Kong lawmaker who represented the legal sector and a senior fellow at Harvard Kennedy School, says the disproportionate sentencing for the land lease case, the denial of the right to choose an overseas counsel and the lengthy adjournment of the trial “was not only a travesty of justice but also a breach of his human rights”.
“Hong Kong’s judicial independence has been hollowed out by national security … and national security can trump basic human rights completely,” he says.
William Nee, a researcher at US-based Chinese Human Rights Defenders, says: “Under international human rights standards, Jimmy Lai had a right to run a newspaper, criticise the government and even seek efforts by other governments to address human rights violations in Hong Kong. Under the umbrella of ‘national security’, the Chinese authorities are trying to give a veneer of legality to draconian censorship and the banning of international advocacy.”
But the Chinese Communist party has a very different concept of rights and justice and its roots go back decades, before the founding of the People’s Republic. Just months before it took power, Mao Zedong wrote in June 1949 that law enforcement agencies are tools to suppress the “reactionaries.”
“The state apparatus, including the army, the police and the courts … is an instrument for the oppression of antagonistic classes,” he wrote in his essay On People’s Democratic Dictatorship. While “the people” obedient to the party should enjoy democracy and rights, dictatorship should be imposed on the “reactionaries.”
“Suppress them … If they speak or act in an unruly way, they will be promptly punished,” Mao wrote. “Democracy for the people and dictatorship over the reactionaries is the people’s democratic dictatorship.”