Judges stick together

In the New Statesman, Jonathan Sumption – former overseas member of the Court of Final Appeal – on the Jimmy Lai verdict. He blames the law, not the judges…

Reading through this very long judgment (it runs to 855 pages), one is constantly struck by the critical references on nearly every page to Lai’s hostility to China and the Chinese Communist Party, his criticisms of Chinese and Hong Kong officials, his objections to the national security law, his support for the pro-democracy movement and his preference for western over Chinese values, as if these things were self-evidently wrong and presumptive evidence of criminality. That is the abyss into which basic political freedoms have fallen in Hong Kong. In the end it does not matter whether it is the law or the judges who have suppressed basic political liberties in Hong Kong. The essential point is that those who criticise China or the Hong Kong government or organise themselves to press for a greater measure of democracy are liable to go to jail. These are the hallmarks of the totalitarian state which China has always been and Hong Kong is in the process of becoming.

The three judges who heard Lai’s case are excellent lawyers. Esther Toh Lye-ping, who presided, is an experienced and independent-minded criminal judge. So what explains the palpable judicial hostility to defendants in politically sensitive trials and the paranoia which equates political dissent with treason and subversion? To answer that question, it is necessary to understand the oppressive atmosphere which has prevailed in Hong Kong since 2020. It isn’t just the jailing of dissenters. Libraries have been purged. School syllabuses have been modified. Rights advocates have been aggressively interrogated by the police. Trade Unions and political organisations have been forced to close their doors. Broadcasters have been edited or jammed. The rare acquittals or grants of bail in politically sensitive cases have been followed by bellows of rage from pro-Beijing legislators and editorial writers. “Patriotism” according to China’s definition has been required of every public servant, including judges.

Hong Kong is a special administrative region of China with its own legal system based on English law, but no longer on English legal values. China is an enormous presence. Politically, it holds all the cards. Legally, it can and does redefine the meaning of the Basic Law or the national security law through “interpretations” from Beijing’s standing committee. Of course, the rule of law applies in principle, as Hong Kong government representatives never cease to tell us. But it does not apply to issues on which the Chinese government has a political agenda. The unity of the Chinese world matters too much to Beijing for that to be allowed.

On one of my last visits to Hong Kong, I discussed these matters over a meal with a senior judge of the Court of Appeal whose wisdom I have always respected. We cannot conduct a guerilla war against the Chinese state, he said. We are part of China. It is the dominant regional power. Our roots are in China and Hong Kong. We don’t have an exit route as you do. We are pressed by the West to uphold Western values as if we were a democracy, but what can the West offer Hong Kong except moral lectures and second passports? It is a good question.