ARTICLE 19 strongly condemns yesterday’s decision in which the Hong Kong’s Court of Final Appeal unanimously dismissed an appeal by Jimmy Lai and six other pro-democracy campaigners to overturn the conviction for their role in an August 2019 peaceful protest, attended by an estimated 1.7 million people. Lord David Neuberger, a former British Supreme Court Justice who sits as a Non-Permanent Judge at the Hong Kong court and was among the five justices to hear the appeal, said after that the issues had been ‘fully considered’. ARTICLE 19 is alarmed at Lord Neuberger’s ongoing presence on the Hong Kong court, which lends credibility to a system actively dismantling the rule of law. We reiterate our call for him to resign. Jimmy Lai, and other pro-democracy campaigners must be immediately and unconditionally released. Hong Kong must protect the freedoms of expression and peaceful protest.
Michael Caster, ARTICLE 19’s Asia Digital Program Manager, said:
“Hong Kong is systematically abandoning all pretence of the rule of law with each unjust decision such as this, made worse by the imprimatur of foreign justices like Lord Neuberger, who lamentably also chairs the High-Level Panel of Legal Experts on Media Freedom under the global Media Freedom Coalition. No amount of judicial pageantry can change the purely political nature of the ongoing assault on fundamental freedoms in Hong Kong.”
Jimmy Lai, 76, a British citizen, along with six others, Martin Lee, Margaret Ng, Albert Ho, Lee Cheuk-yan, ‘Long Hair’ Leung Kwok-hung and Cyd Ho were earlier convicted for their part in an unauthorised assembly on 18 August 2019. A high point of the pro-democracy protest movement, on that day some 1.7 million people joined a demonstration at Victoria Park, once the site of the annual Tiananmen Square candlelight memorial demonstration which has also become a victim of Hong Kong’s embrace of authoritarianism. The campaigners were cleared of the previous conviction for organising the assembly and were appealing the charges for participation.
Arguing on behalf of Jimmy Lai, the defence highlighted that any restrictions on the freedom of expression, assembly, and other fundamental freedoms must be ‘proportionate’. Two UK Supreme Court decisions were cited in arguing that a conviction over unauthorised assemblies where no serious public disorder or violence takes place would be a disproportionate restriction on the freedom of peaceful assembly. In their opinion, Chief Justice Andrew Cheung and Judge Roberto Ribeiro held that the UK decision had no bearing. Following the decision, Neuberger claimed that constitutional differences between Hong Kong and the UK require different approaches in acting on proportionality.
The International Covenant on Civil and Political Rights (ICCPR), which is binding on Hong Kong, clearly requires that restrictions on the freedom of expression and assembly must be necessary and proportionate.
In June, two other British justices, Lawrence Collins and Jonathan Sumption, withdrew from the Hong Kong court. Jonathan Sumption explained his decision citing the fact that Hong Kong is ‘slowly becoming a totalitarian state’ where ‘the rule of law is profoundly compromised’.
At the time, Lord Neuberger told Reuters that he would remain on the court in Hong Kong to ‘to support the rule of law in Hong Kong, as best I can.’
“The ongoing legal harassment of anyone who dares to plan or participate in pro-democracy protests is clearly designed to signal that in Hong Kong there is no freedom of expression or peaceful protest,” said Caster. “The participation of sympathetic foreign justices in this crackdown on fundamental freedoms in Hong Kong, coupled with the ongoing transnational repression of protest leaders and campaigners abroad, are both part of China’s efforts to reframe authoritarianism and repression at home and around the world, behind the veil of the rule of law. Staying on in Hong Kong now to ‘support the rule of law’merely supports repression.”
In light of ongoing and persistent attacks on the freedom to protest, independent media, and broader freedom of expression, ARTICLE 19 calls on the foreign judges still sitting on Hong Kong’s highest court to withdraw themselves. They must stand for the principles of judicial independence and the rule of law, which are fundamental to the legal profession.
We also call on the Media Freedom Coalition and the International Bar Association’s Human Rights Institute, as the secretariat for the High Level Panel of Legal Experts on Media Freedom, to review Lord Neuberger’s role as Chair should he continue to willfully lend credibility to a system that clearly neither respects media freedoms nor broader human rights and rule of law protections.
ARTICLE 19 has consistently highlighted the deterioration of rights in Hong Kong since the 2019 protests, the arrests that followed, and authorities’ introduction and use of national security laws to censor dissent.
For more information
Michael Caster, Asia Digital Programme Manager, [email protected].