The Court of Appeal of the Hong Kong High Court rejected the appeal application of the Department of Justice and approved Jimmy Lai to hire an overseas lawyer to represent him in the case of endangering national security. Public opinion is controversial.
Hong Kong society, especially the legal profession, thinks the verdict is unbelievable and generally does not accept it, and even calls on the central government to intervene and carry out judicial reform.
Hong Kong society has a tradition of respecting the rule of law, and the outrage is evident in the belief that the logic of the High Court's ruling is absurd and far-reaching.
The absurdity is at least threefold.
First of all, the Li Zhiying case is a criminal case that endangers national security and involves national sovereignty.
As for what constitutes a threat to national security, the definitions and standards of each country are naturally inconsistent.
But one thing is for sure, whether it is a country that practices common law or a country that practices civil law, neither will use foreign standards to interpret or define the national security of their own country, nor will they allow foreign lawyers to represent such judicial matters. sovereign case.
Secondly, Li Zhiying was prosecuted for the crime of "colluding with foreign countries or foreign forces to endanger national security."
He himself holds a British citizen passport and has close contacts with the political circles of the United States and the United Kingdom. The "foreign countries" he is suspected of colluding with are the United States and the United Kingdom.
The former British prime minister, foreign minister, and members of the House of Lords have already expressed their opposition to Jimmy Lai's conviction and actively intervened in the trial of the case.
There may be a potential conflict of interest for the British "Queen's Counsel" to represent such a case in which his own government may become a "party".
Furthermore, Jimmy Lai violated the Hong Kong National Security Law. The primary purpose of the National Security Law is to maintain the national security of the People's Republic of China. The most useful experience is that he has handled China's national security cases.
However, the High Court approved Li Zhiying to hire a lawyer who does not understand Chinese and is not familiar with the Hong Kong National Security Law but is only familiar with international human rights law, distorting a criminal case involving Hong Kong National Security into an international human rights case, which is inconsistent with the legislative purpose of the Hong Kong National Security Law Running in the opposite direction is obviously not in the public interest of Hong Kong, and it confuses judicial principles.
The serious consequence of this arrangement is that the Hong Kong National Security Law has been completely distorted and distorted through "international human rights standards", and finally become nondescript.
The overriding and special legal status of the Hong Kong National Security Law, which is different from general laws, has been severely eroded. The Central Government’s intention to maintain national security and maintain Hong Kong’s social stability through the formulation and implementation of the Hong Kong National Security Law has been seriously confused, reducing the seriousness of the law.
As a result, Hong Kong's defense line for maintaining national security may be "drilled and breached". The forces that disrupt Hong Kong may take advantage of this loophole and take risks again. They will continue to threaten national security and create chaos. Hong Kong's current stable situation may be destroyed. .
Hong Kong's judicial system is also a victim. Can the biased judges take responsibility?
It is not the first time that Hong Kong court judges have been seriously questioned over misunderstandings about the post-reunification judicial system.
As early as 1999, the Hong Kong Court of Final Appeal made a ruling on the right of abode of mainland children of Hong Kong residents, arguing that the Court of Final Appeal has the "right to review unconstitutional" legislative acts of the National People's Congress and its Standing Committee, seriously challenging the constitutional order of "one country, two systems" .
It was only after the central government interpreted the law that it had to correct its mistakes.
During the "revision storm" in 2019, a considerable number of suspects who illegally possessed prohibited items and assaulted people in the street with intentional injuries were released on court bail, which led to many people having the opportunity to abscond in fear of crime; Criminal cases violated social consensus and were punished lightly with social correction orders or fines. Some judges even called the thugs "excellent youths."
During this period, the High Court also ruled that the "Emergency Regulations" on which the "Prohibition of Face Masks Act" was based violated the Basic Law, seriously challenged the powers that the Chief Executive should have, and severely hindered the law enforcement of the SAR government.
Some judicial officials in Hong Kong are prejudiced and even condone "Hong Kong independence", mistakenly thinking that it is freedom of speech. Violent crimes are misinterpreted as young people's impulsiveness, which destroys the dignity of the judiciary, continues social turmoil, and seriously damages judicial credibility.
In the end, it is still necessary for the central government to take action and enact the Hong Kong National Security Law, so that Hong Kong will return to calm and the lives of citizens will be stable.
In this case of Jimmy Lai's National Security Law, some judicial practitioners repeated their tricks and continued to ignore the original intention of the National People's Congress.
Behind the absolutization of judicial "discretionary power", the so-called "international judicial standards" are strongly promoted, trying to use judicial decisions to reinterpret the Basic Law, challenge the seriousness of the National People's Congress's legislation, and highlight "judicial supremacy" and "judicial supremacy" in a distorted way. Dominance" misinterpretation.
Some judges do not agree with the National Security Law in their hearts and do not respect the status of the National People's Congress in Hong Kong's legal system. Naturally, they do not agree with the central government's overall governance power. extrajudicial territory of the Basic Law.
A judicial system that deviates from the original intent of the Basic Law is difficult to move forward. A judicial system in the SAR that does not know that it is responsible for safeguarding national sovereignty, security and development interests cannot function effectively at all.
The so-called use of foreign professional experience to improve Hong Kong's rule of law and balance national security and protection of human rights is nothing but a "shield".
Hong Kong has entered a new stage of governance and prosperity. In this new era where only patriots govern Hong Kong, all those who govern Hong Kong must meet the requirement of "patriotism". Naturally, judicial practitioners cannot stay out of it.
The handling of the Jimmy Lai case is a major test of whether Hong Kong judicial practitioners meet the standard of "patriots governing Hong Kong" and whether they are able to perform their duties entrusted to them by the Constitution and the Basic Law.
Hong Kong's judicial system and legal system can only represent and safeguard China's national interests, including the interests of Hong Kong, rather than the interests of other countries; Hong Kong's national security law must be fully and accurately implemented, and cannot be distorted or diminished.
In the case of Li Zhiying hiring overseas lawyers, the performance of the high court was unqualified.
At present, the case has been appealed to the Court of Final Appeal, and the Court of Final Appeal is about to make a written ruling.
It is hoped that the Court of Final Appeal can face up to the problem and make a correct case for the trial of such cases, otherwise the consequences will be at your own risk.
The author of this article is a scholar at Fudan University in Shanghai, specializing in the study of "One Country, Two Systems", and "Xu Fansheng" is his pen name.
The content of the article only represents the author's personal views and does not represent the position of Hong Kong 01.
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