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The Hong Court of Final Appeal (CFA)’s February 9 decision regarding media mogul Jimmy Lai’s application for bail while awaiting trial for alleged violation of the new National Security Law (NSL) had been eagerly anticipated. It did not prove a disappointment and had something for everyone.
The unanimous opinion of the five-judge panel that heard the case is a clearly written but subtle explanation of the development and significance of bail in Hong Kong since the handover to China in 1997, including the major changes that the NSL recently wrought in this indispensable safeguard to personal liberty.
The CFA made clear that the granting of bail continues to be the province of the lower courts and that judges confronting bail applications in NSL cases must now begin their deliberations by acknowledging what is in effect an exceptional NSL-imposed presumption against release of the accused pending trial, rather than the traditional de facto presumption in favor of granting bail.
Yet the CFA also made it clear that bail applicants may overcome this new obstacle by credibly and imaginatively offering to accept restrictions and conditions on the exercise of bail’s usual freedoms in order to convince the judge that he or she will not continue to commit any acts allegedly endangering national security. That is not merely my view or that of other foreign observers but appears to be the dominant view of Hong Kong’s leading legal scholars, including both Professors Albert Chen and Simon Young of the distinguished Hong Kong University Law School.
Under the circumstances, neither pro-Beijing supporters nor anti-government protesters could expect more from the CFA. In accordance with the CFA’s faithful interpretation of the NSL, most accused are now likely to be denied bail. Yet, strengthened by the Court’s ample references to Hong Kong’s common law constitutional values and the protections of the International Covenant on Civil and Political Rights (ICCPR) that the Basic Law for Hong Kong makes applicable, the opportunity to obtain bail continues to exist. Lower court judges may still vindicate Jimmy Lai’s detailed assurances of his extremely circumscribed behavior if he is now released pending trial.
Yet, having carefully waded through the CFA’s 35-page opinion, I come away depressed – not by anything the Court stated but by the amount of time the bail decision-making process has absorbed, time almost entirely spent with Lai in jail while awaiting the outcome. Moreover, the bail decision-making process is far from over.
Lai’s lawyers will surely return to the High Court and renew their request for bail. The High Court, having now been lectured by the CFA for applying the wrong legal interpretation of the NSL when briefly granting Lai bail last December, can reconsider Lai’s application in light of the CFA’s clear authoritative interpretation. But how long will it take to hold another High Court hearing on the issue and then obtain a decision? And will the government then lodge another appeal if Lai is again successful, and how long will it take before that appeal is heard and decided?
Once these legal battles are exhausted, how much time will be left before the April 16 trial? Lai, who may be acquitted at trial, as the High Court judge recognized when considering the case previously, is nevertheless being punished by incarceration every day as the process drags on. What a great weapon the government has to punish its opponents, whether they are ultimately adjudged guilty or innocent of the vague and broad offenses with which they are charged!
The guidance offered by the CFA on bail under the NSL may actually turn out to be more favorable to Lai than to some others who seek bail during their NSL prosecutions, since Lai has the wherewithal to guarantee implementation of the many conditions on his bail that promise to assure his lack of freedom and capacity to commit any further alleged NSL violations while awaiting trial.
I think that a courageous High Court judge should be able to meet the new standard for granting bail by conscientiously certifying that there are sufficient grounds to believe that Lai will not continue to commit acts allegedly endangering national security if released on bail. I hope that happens, even though it will create a storm in Beijing, especially since Lai’s bail application techniques can be copied by others accused under the NSL.
The CFA opinion usefully clarifies several other bail-related technical questions of interpreting the NSL and rejects some of the government’s extreme arguments. But the most sobering aspect is the opinion’s reiteration, at the outset, that under Hong Kong law the NSL bail provision – despite the fact that it imposes an important alteration of the criteria for granting bail under traditional Hong Kong legal provisions and the ICCPR – cannot be challenged for being in violation of those ostensibly protective documents.
This is worth emphasizing. The Court reminds us that whatever the National People’s Congress (NPC) in Beijing or its Standing Committee decides to enact cannot be contested on constitutional grounds. Although sometimes naively and wishfully forgotten, that has been the law in Hong Kong for over 20 years. All the CFA can do is to try to interpret the NSL in light of the values enshrined in Hong Kong’s constitutional documents and the ICCPR, as it did in this case. Resort to the Basic Law is of no use. The Basic Law should not be referred to as “Hong Kong’s mini-constitution” since that phrase implies that enactments of the NPC or its Standing Committee can be challenged for violating the Basic Law. As the NSL confirms, sadly that is not the case.
Finally, the greatest danger that these developments reveal is that the new bail standard prescribed for NSL cases may now spread and be applied by Hong Kong courts to regular local cases, not just those prosecuted under the NSL. That this concern is not far-fetched was immediately demonstrated on February 10, the very next day after the CFA’s Lai decision. Amazingly, in a non-NSL local sedition prosecution, Chief Magistrate Victor So applied the NSL standard and denied bail to the accused, a popular radio host. So was apparently persuaded by the hyper-zealous prosecution claim that, although the alleged criminal acts fell outside the NSL, they nevertheless endangered national security and should therefore be treated like alleged NSL violations.
The accused, Wan Yiu-sing, also known as “Giggs,” will presumably appeal this immediate and stunning lower court extension of the CFA’s Lai decision. If the CFA’s balanced opinion and skepticism of the government’s most exaggerated claims in the Lai case are to be taken seriously, there is a decent chance that So’s denial of bail to Wan will be reversed. Yet again, as in the Lai case, even if the accused is ultimately victorious on the bail issue, he will have spent most of the time before his May 10 trial in jail fighting for his right to pre-trial bail.
The upshot of all this is that Hong Kong’s criminal justice system is daily becoming increasingly like that of the rest of China, which has long regarded the pre-trial granting of bail as an exception. Ironically, as Professor Daniel Ping Yu, a leading American expert on PRC justice, has pointed out, in recent years some Chinese experts have urged reform of China’s bail system in a more liberal direction. Some have even advocated adoption of American-style reform, with a presumption favoring bail unless the court is presented with persuasive reasons for denial. It would be good to hear the comments of these Chinese experts on this week’s developments in Hong Kong, but they have to be careful about speaking freely on what is now an extremely sensitive subject in China. Otherwise they too might be vainly seeking pre-trial bail.
Jerome A. Cohen, an international lawyer, is a retired NYU Law School professor and Founding Director Emeritus of its US-Asia Law Institute. He is currently Adjunct Senior Fellow for Asia at the Council on Foreign Relations.
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