The dwindling freedom in Hong Kong over the previous few years has been described as “loss of life by a thousand cuts”. Critics have been jailed, elections have been reworked into “patriots solely” affairs, journalists have been harassed and a whole bunch of hundreds of individuals have left.
This week, an obscure authorized growth has, within the eyes of some authorized specialists, inflicted one other lower on town’s as soon as revered authorized system.
On 17 March, Hong Kong’s Court docket of Remaining Enchantment (CFA), town’s high bench, rejected an utility from Jimmy Lai. The 77-year-old pro-democracy activist is now on trial for alleged nationwide safety offences – costs which may see the previous media mogul spend the remainder of his life in jail. Though the trial is properly beneath approach, Lai’s authorized workforce have been making an attempt to attraction towards the choice to bar his most popular lawyer, Tim Owen KC, from representing him.
The small print of the saga date again to 2022, when Owen was first permitted to characterize Lai. The Hong Kong authorities objected to Owen’s admission, however misplaced a number of appeals to have him blocked. So John Lee, the chief govt, turned to Beijing. In December 2022, the Chinese language authorities issued an interpretation of the nationwide safety legislation, which had been imposed on town in June 2020 to quell months of pro-democracy protests. The interpretation said that the courts wanted approval from the chief govt to confess international legal professionals in nationwide safety instances.
Though Owen had been admitted to characterize Lai earlier than the interpretation was issued, Hong Kong’s nationwide safety committee nonetheless instructed the immigration division to deny him a piece allow.
“It’s fairly properly unparalleled for anyone who’s entitled to characterize a shopper to not obtain a piece allow,” says Jonathan Sumption, a former supreme courtroom decide who give up the CFA final 12 months, warning that the rule of legislation was “profoundly compromised” in Hong Kong. “I feel it tells us rather a lot in regards to the view of the rule of legislation taken by the chief”. Sumption mentioned that blocking Owen by way of a visa refusal was “a subterfuge” on the a part of the federal government.
However the concern on the coronary heart of Lai’s attraction was not the visa – however the reality selections made by the nationwide safety committee can’t be legally challenged, a precept that has brought on alarm in some authorized circles.
Paul Harris SC, a former chairperson of the Hong Kong Bar Affiliation, who fled town in 2022 after being warned by the nationwide safety police that they had been contemplating charging him with sedition, mentioned that the precept “successfully provides the committee the powers of a police state”.
Whereas the CFA didn’t give a cause for rejecting Lai’s attraction this week, it did so utilizing a rule that’s usually reserved for purposes with “no cheap grounds” or which are “frivolous”.
“That is one other, amongst many, blows to the rule of legislation,” mentioned Michael C Davis, a former legislation professor on the College of Hong Kong. “The CFA certainly missed a possibility to reign in what has turn out to be extreme resort to nationwide safety claims and to raised articulate the boundaries, if any, of the committee’s immunity from evaluate.”
Samuel Townend KC, chairperson of the Bar Council of England and Wales till this 12 months, mentioned that the CFA’s refusal to listen to the attraction amounted to the courtroom “washing their arms of any judicial oversight” of the nationwide safety committee.
Simon NM Younger, a legislation professor on the College of Hong Kong, warned towards studying an excessive amount of into the CFA’s resolution. He pointed to an earlier ruling which said that the nationwide safety legislation was clear in its intent to immunise sure selections from authorized problem. He mentioned that by refusing to grant depart to attraction, the CFA judges may have determined that Lai’s particular declare was merely with out advantage. “The query of judicial reviewability of a NSC [national security committee] resolution on jurisdictional grounds stays open,” Younger mentioned.
However for Lai, it’s the finish of the street on this authorized problem. He will be unable to instruct his chosen lawyer in any future proceedings. Together with his nationwide safety trial anticipated to run till the autumn, and additional appeals anticipated if he’s convicted, there could also be many extra to come back.
Hong Kong’s judiciary didn’t reply to a request for remark.
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