[ANALYSIS] Why we must shine the light on Jimmy Lai’s case

We discuss a deeply concerning case: that of Jimmy Lai, renowned media entrepreneur, pro-democracy campaigner, advocate of peaceful assembly and writer, a gentleman in his 70s who has achieved so much over the decades, in prison in Hong Kong. Apple Daily, the popular newspaper he founded, forced to close after 26 years of operation, after authorities arrested five of its senior executives and froze the company’s assets, as well as Mr Lai’s assets, leaving the newspaper with no choice but to close. Apple Daily had been founded in 1995, as the handover of Hong Kong to the Chinese government approached. It was, from the outset, explicitly pro-democracy and anti-corruption, and highly critical of Hong Kong’s increasingly pro-Beijing ruling class.

We have all seen the hashtag and heard the slogan ‘Journalism is not a crime.’ And yet here we sit, my brave client Maria Ressa to my side, treated as a criminal in the Philippines for her journalism, for speaking truth to power. We are discussing another of my courageous clients, Jimmy Lai, criminalized for his work, for speaking truth to power. He is not with us today, as he is behind bars in Hong Kong, but we get a sense of his courage, his conviction and his deep sense of duty from hearing the words of his son, Sebastien Lai, who has joined us today from Taiwan. 

Given Mr Lai’s work, his principles and his opinions, he has been repeatedly targeted by the authorities over the years – he has been questioned about his support for a free press; he has been questioned over his advocacy of peaceful demonstration and peaceful protest. He has been targeted due to the journalism of Apple Daily, because of his political opinions and his status as a high-profile pro-democracy advocate, stretching back over a decade. He has been placed under intimidatory, constant surveillance for many years, documented in detail since 2013. Both his home and the headquarters of his business enterprise, Next Daily, were petrol-bombed in 2015, his attackers seemingly able to act with impunity, with the authorities unable or unwilling to take steps to protect his rights to live and pursue his media and campaigning work free from violence, or the threat of violence.

That targeting has taken place over many years, but as you’ve heard, it intensified with the passing of the controversial National Security Law (NSL) in 2020 – and in August 2020, he was arrested and he remains in prison; and in June 2021 Apple Daily ceased operating.

The closure of the newspaper was described as “the blackest day” for Hong Kong’s democracy by Amnesty International. The EU’s External Action Service said the Apple Daily closure, “clearly shows how the national security law imposed by Beijing is being used to stifle freedom of the press and the free expression of opinions” and that “its closing seriously undermines media freedom and pluralism, which are essential for any open and free society.” The UK Foreign Secretary at the time, Dominic Raab MP, labelled it a “chilling demonstration of the authorities’ campaign to silence all opposition voices” and to use the law to curb dissent. 

We agree. 

Mr Lai’s imprisonment has also been the subject to critical comment by the international community. For example, the UN High Commissioner for Human Rights, Michelle Bachelet, voiced alarm that Mr Lai has “faced negative consequences for the exercise of his fundamental rights” and raised concern that the NSL is “leading journalists to increasingly self-censor, to avoid clashing with its vaguely formulated offences.” In July 2021, US Secretary of State Anthony Blinken released a statement marking one year of NSL, stating “Hong Kong authorities have mounted a persistent and politically motivated campaign against the free press, imprisoned Apple Daily founder Jimmy Lai and forced the closure of that publication – a bastion of independent reporting.” In October 2021, a number of UN Special Rapporteurs condemned the misuse of the NSL and charges of terrorism and sedition to stifle local opposition voices, freedom of speech, assembly and political participation in Hong Kong.

We agree.

Concerning trend

In addition, in the past 18 months we have seen a deeply concerning trend of the Hong Kong and Chinese authorities no longer being content with attempting to silence journalists, peaceful protestors and other critics within their borders. They are now taking steps to silence criticism, wherever in the world it may come from. This is not a surprise to us – the NSL was described from the outset by Amnesty International as “dangerously vague and broad: virtually anything could be deemed a threat to “national security” under its provisions, and it can apply to anyone on the planet.” And we have seen the Chinese authorities sanction Parliamentarians in the UK and European Parliament who have dared to criticise their human rights record on other issues. What we are now seeing are extra-territorial threats to prosecute, using the NSL or sedition laws, leveled against those who support Mr Lai outside Hong Kong. We have seen, for example, Hong Kong Watch, an NGO based in London, threatened for content posted on its London-based website. We, as Mr Lai’s international legal team, have received a wide range of shadowy threats, warnings and cyberattacks. The message is clear: keep silent, stop acting in Mr Lai’s case, or you’ll be next.

Further, Mr Lai’s case is an example of ‘lawfare’ – something with which Maria Ressa is very familiar, as a target herself. This involves using law as a weapon to silence anyone perceived to be a threat.

Mr Lai has had multiple laws used against him, including the NSL. His NSL trial is coming up, due to take place starting on the 1^st December 2022. 

In my work I increasingly see a trend of regulatory, tax, and fraud laws being used against journalists – not only traditional legal tools of repression such as libel laws or anti-terrorism laws. Mr Lai’s case is a paradigm example of this. Since he was first arrested in early 2020 he has faced a barrage of cases, including spurious criminal and regulatory cases; and a wholly bogus fraud case.  

He has also been convicted in four separate sets of criminal proceedings resulting from peacefully participating in high-profile pro-democracy protests between 2019-20.

This includes a protest on the 18^th August 2019 when an estimated 1.7 million people – that’s approximately a quarter of the population – attended Victoria Park calling for freedom and democracy in Hong Kong, and included a public procession through town. Mr Lai’s sentence: 12 months’ and 9 months’ imprisonment, to be served concurrently.

It also includes a vigil held on the 4^th June 2020 – as it is held every year – to mark the anniversary of the Tiananmen Square protests. 20,000 people attended that protest. Mr Lai was present for 15 minutes to light a candle to show his respect to the victims. Mr Lai’s sentence: 13 months’ imprisonment.

The question for all of us now is what can now be done about these egregious attacks on freedom of expression, democratic values and the rule of law, including the misuse of a range of laws, and extra-territorial attacks outside Hong Kong and China. 

Challenge to international community

We come together to discuss this case days before the Human Rights Council sits, and also at a point which is particularly timely for Mr Lai’s case. Our overriding message to you today is there is much for the international community to do – and it must be done. Quiet, backroom diplomacy has not worked in this case to date. There is nothing to indicate that it will succeed in the weeks and months ahead. We ask you, today, to take concrete action.

As the international legal team, we have filed two urgent appeals with the United Nationals Human Rights Council special procedures mechanisms, one to four Special Rapporteurs (concerning freedom of expression, human rights defenders, the right to peaceful assembly and counter-terrorism) and one to the Working Group on Arbitrary Detention. We ask those mandates to both raise concerns urgently with the authorities; and to make public statements holding China and Hong Kong to account. We ask all of you in the room today to press those mandates and support our urgent appeals.

For those of you in from diplomatic missions, raise Mr Lai’s case with your capitals as a matter of urgency. Make clear the vital importance of this case and the principles at stake. Ensure that Mr Lai’s case and the broader principles are raised in your bilateral relations with Hong Kong and China. Press for all charges to be dropped against Mr Lai and for him to be released from prison immediately. 

More generally, press for the pernicious NSL to be revoked; and if your country has an extradition treaty with China or Hong Kong, take steps to change that as so many other states have now done, and as the International Bar Association’s Human Rights Institute has called for. 

A particular plea to the UK. We emphasize that Mr Lai is a UK national. He is a UK national imprisoned for his principles. His prosecution, conviction and detention flagrantly violate international law and international standards, and have attracted widespread international condemnation. Today, there is a new Prime Minister in the UK, Liz Truss MP, the former Foreign Secretary, and a new Foreign Secretary takes her place in that role. It is imperative that the UK speaks out in support of its citizen.

We ask the UK, the US, the EU and all States to raise Mr Lai’s case in particular and concerns regarding arbitrary detention in particular during the interactive dialogue with the Working Group on Arbitrary Detention on 19^th September 2022.

Make public statements making clear your support and solidarity with Mr Lai.

For those of you in the room who are journalists and writers, tell this story. Shout from the rooftops about what is happening in Hong Kong and what is happening to Jimmy Lai. Mr Lai has been targeted due to his exercise of internationally protected rights to freedom of expression, freedom of assembly and the right to peaceful protest. He has been targeted due to his espousal of the very values that the United Nations holds dear – human rights, democracy, and the rule of law. And he has been targeted because, as John Simpson CBE has put it, he decided to stay put in Hong Kong, not to go into exile, and to stand up and be counted. The international community must now speak out and shine a light on what is happening to Mr Lai, and what is happening in Hong Kong. This is a story which must be told. – Rappler.com

These are notes of a speech made by Caoilfhionn Gallagher KC (formerly QC) at the Geneva Press Club on September 6, 2022, ahead of the commencement of the 51^st Session of the Human Rights Council on September 12. Caoilfhionn Gallagher KC is a barrister at Doughty Street Chambers, London. She leads the international legal team for Jimmy Lai. She also acts in many cases concerning journalists’ safety and accountability for crimes against journalists, including jointly leading, with Amal Clooney, the international legal team for Maria Ressa.