Hong Kong media tycoon Jimmy Lai pauses during an interview in Hong Kong on July 1, 2020.Vincent Yu/The Associated Press
British judge Jonathan Sumption issued a stark warning when he quit Hong Kong’s top court in June, one of two foreign judges who resigned after 14 people were convicted of conspiracy to commit subversion.
In reality, those brave activists were guilty only of fighting for democracy and the rule of law in Hong Kong – and defying the will of China’s Communist Party. Four years ago, China imposed a national security law that undermined basic political and legal freedoms, part of a crackdown on pro-democracy protests by Beijing.
In explaining his decision to resign, Mr. Sumption wrote that Hong Kong is “slowly becoming a totalitarian state” and that the rule of law in the territory has been “profoundly compromised” under the security law.
That was nine weeks ago. This week, Hong Kong took yet another step toward the totalitarian, with the territory’s Court of Final Appeal unanimously upholding the conviction of billionaire Jimmy Lai on organizing and participating in an unauthorized assembly, when pro-democracy protests roiled Hong Kong in the summer of 2019.
Mr. Lai’s true crime was to start the pro-democracy newspaper Apple Daily, and to support the cause of freedom in Hong Kong. The decision on Monday to uphold the verdict is simply unjust, and clear proof, as the British judge warned, that Beijing has hollowed out the rule of law in Hong Kong.
Hollowed out being the most apt description, since there is still a facade of legality – including the continued presence of foreign jurists that shamefully lend their credibility to Beijing’s puppetry.
Thankfully, that group no longer includes former Supreme Court of Canada chief justice Beverley McLachlin, who announced in June her plan to leave the court at the end of July. Her decision was too long in coming, and she did not denounce the assault on the rule of law as did her colleague, Mr. Sumption. But Ms. McLachlin has at least severed ties.
Yet, seven foreign judges still sit on the Court of Final Appeal, including David Neuberger, the former president of Britain’s Supreme Court. He was part of the unanimous ruling against Mr. Lai.
And, in a you-can’t-make-this-up touch, Mr. Neuberger is also the chair of a panel of legal experts on media freedom for the Media Freedom Coalition, made up of 51 countries, including Canada.
One immediate consequence of the Court of Final Appeal’s decision on Mr. Lai should be for Canada and the other member countries of the Media Freedom Coalition to present Mr. Neuberger with a choice. He can either continue to be a fig leaf for Beijing’s repression, or he can be an adviser on media freedom. The two are fundamentally at odds.
More broadly, the other foreign non-permanent judges on the Court of Final Appeal need to follow Mr. Sumption’s example and resign. A resignation en masse would tell the world that Beijing has co-opted the legal system in Hong Kong and that courts in the territory are, for any politically tinged matter, an extension of the Communist Party. That act, more than anything else, would be the best thing the judges could do to shore up what remains of the rule of law in Hong Kong.
The rest of the world needs to understand the peril posed by the Court of Final Appeal’s decision on Mr. Lai’s case. For years after Britain’s handover of Hong Kong to China in 1997, Beijing has promoted the idea that capitalism and (circumscribed) political freedoms could survive and thrive – the “one country, two systems” principle.
That principle is dead. Beijing seems happy enough for Hong Kong to continue to grow economically, in the same way that it wants, say, Shanghai to prosper. But the legal foundation upon which Hong Kong was built is fast dissolving. Perhaps the finer points of contract law can still be argued in court, and perhaps ruled on impartially. For now.
But for any matter that challenges the prerogatives of China’s rulers, Mr. Lai’s case makes it perfectly clear that the verdict is what Beijing says it is. Canadian businesses cannot count on Hong Kong courts to protect their interests.
And then there is Mr. Lai, persecuted for his advocacy of the kind of freedoms that Canadians take for granted. His bravery is indisputable. It should not be met with silence. As we have said before, Canada must join the call to free Mr. Lai.
His conviction is based on a law, but not the rule of law. A court has sentenced Mr. Lai, but justice eludes him. For now.