United Nations experts raise concerns with China that proceedings against Jimmy Lai violating his fundamental rights
United Nations (UN) experts have expressed “grave concern” regarding the arrest, detention and multiple prosecutions against pro-democracy advocate and media owner, Jimmy Lai, and his newspaper which has now been shut down, Apply Daily. In a formal communication sent by the UN experts to the People’s Republic of China (PRC), the experts urged the PRC to take all necessary interim measures “to halt the alleged violations [of Jimmy Lai’s rights] and prevent their re-occurrence” and to hold to account any person or persons responsible for violating Jimmy Lai’s fundamental rights and freedoms.
Indicating the scale and breadth of concern about Jimmy Lai’s case, the communication was sent to PRC jointly by multiple UN experts: the UN Working Group on Arbitrary Detention, and a group of four United Nations Special Rapporteurs whose mandates cover the rights to freedom of opinion and expression; freedom of peaceful assembly and association; the independence of judges and lawyers; and the promotion and protection of human rights and fundamental freedoms while countering terrorism. A communication from such large numbers of UN experts is rare.
The UN’s formal communication was sent to the PRC earlier this year, privately, but it has now been made public by the United Nations, after allowing the PRC time to consider the communication. The PRC’s response has now also been published. Today, the international legal team for Jimmy Lai and his son, Sebastien Lai, has filed submissions with the UN experts agreeing with and supporting their analysis, and correcting inaccuracies in the PRC response.
Background
Jimmy Lai, now aged 75, is a high-profile supporter of the Hong Kong pro-democracy movement, journalist, publisher and owner of Apple Daily, once Hong Kong’s most popular Chinese-language newspaper until its closure in June 2021 as a result of actions taken by the authorities.
The Chinese Communist Party and the Hong Kong SAR authorities have repeatedly targeted Jimmy Lai since the 1990s. Since the passing of the controversial National Security Law (NSL) in Hong Kong in 2020, the targeting intensified, ultimately leading to his arrest in August 2020 and his imprisonment since December 2020. He has been convicted in four separate cases and sentenced to imprisonment for his peaceful participation in various pro-democracy demonstrations in Hong Kong in 2019 and 2020, and he is currently serving a sentence of 5 years and 9 months following his conviction in October 2022 for an alleged lease violation. He is awaiting a trial in a case under the NSL, alleging that he committed offences through his peaceful pro-democracy activities and his journalism.
The barrage of cases against Mr Lai has been widely condemned as an attempt to penalise him for his pro-democracy campaigning and his media outlet’s reporting critical of the PRC, and to silence him. For example, the European Union’s External Action Service and European Parliament, and the US Senate have all expressed alarm over Hong Kong’s crackdown on Mr Lai and other pro-democracy campaigners.
The UN Experts’ Formal Communication to the PRC
The UN experts requested the PRC to explain the factual and legal basis for the series of arrests and prosecutions faced by Mr Lai since 2020, and for the actions taken against Mr Lai’s newspaper, Apple Daily. The UN experts made clear their grave concern that those actions are “related to [Mr Lai’s] criticism of the Chinese government and his support for democracy in Hong Kong SAR.” The UN experts reminded the PRC that “[s]uch political expression is permissible speech under article 19 of the ICCPR”. The UN experts set out a series of specific factual and legal queries for the PRC.
In addition to the grave concerns raised regarding the actions taken against Mr Lai and Apple Daily, the UN experts also raised with the PRC their concern that members of Mr Lai’s international legal team have been subjected “to acts of intimidation and harassment, seemingly in response to its advocacy on behalf of Mr Lai.”
The PRC’s response
In a response received by the UN experts on 1st. May 2023, and now made public, the PRC declined to explain in any detail the factual and legal grounds for any of Mr Lai’s arrests, prosecution and detention, and whether those grounds comply with international human rights law. They also failed to answer many of the UN experts’ specific questions.
The PRC claimed that the NSL was necessary given “violent social unrests” and claimed that Hong Kong SAR “now continues to be an open, safe, vibrant and business-friendly metropolis.” The PRC denied that there is any basis for concern regarding freedom of press, claiming that “since the implementation of the National Security Law, the media landscape in Hong Kong has been as vibrant as ever” and that the media are free to criticise the government “as long as they are not in violation of the law”. The PRC warns that “responsible journalism” requires journalists to “abide by all laws, including criminal law”.
In response to the UN experts’ concerns that the terms of the NSL are not sufficiently precise so that it is clear what types of behaviour and conduct constitute a criminal offence under the law, the PRC claimed that “law-abiding people will not unwittingly violate the law”. The PRC’s response also makes clear that the PRC considers the international legal team to be committing criminal offences under Hong Kong law by raising concerns at the United Nations and with UN Experts, indicating that engagement with UN bodies on Mr Lai’s case could amount to offences under Articles 29 and 30 of the NSL.
International Legal Team Response
Today, the international legal team for Jimmy Lai and his son, Sebastien Lai, have filed an urgent update with the UN experts. The team agrees with and supports the UN experts’ analysis and concerns in Mr Lai’s case; corrects errors and untruths in the PRC’s response; and makes clear that the PRC’s response itself constitutes a further violation of Mr Lai’s rights. The team also updates the UN experts on the latest developments in proceedings in Hong Kong. Yesterday, on Tuesday 30th May 2023, the High Court refused an application to terminate the NSL proceedings. Jimmy Lai’s domestic legal team in Hong Kong argued that the proceedings are fundamentally unfair and should be halted. This included because, they argued, there is apparent bias against Mr Lai by the Court, given how the NSL judges are appointed by Hong Kong’s Chief Executive John Lee; and blocking Mr Lai’s choice of counsel from representing him at trial is “persecution not prosecution.” High Court judges Esther Toh, Susana D’Almada Remedios and Alex Lee rejected the application.
Commenting today on the UN Experts’ Communication, and the PRC’s response, Sebastien Lai said:
“My father has been prosecuted and imprisoned for his support for democracy in Hong Kong. This formal Communication sent by the UN experts to China outlines in stark form the pursuit of my father by China and the Hong Kong SAR, because he has been a fearless advocate for democracy in Hong Kong, and has refused to compromise the independence of his newspaper.
In response, China is doubling down on its lies. It is no response to the UN Experts concerns that individuals have free speech as long as you abide by the law, when the law is so broad so as to catch legitimate criticism of the Chinese Communist Party, and it stifles political debate, peaceful protest and journalism. Claiming that free speech and the right to protest are alive and well in Hong Kong SAR do not accord with the reality. If that were the case my father would be a free man.”
Caoilfhionn Gallagher KC, who leads Mr Lai’s international legal team added:
“We welcome the UN Experts’ important Communication, highlighting grave concerns in Mr Lai’s case. Mr Lai is being prosecuted for illegitimate reasons, under an unfair law, and in a legal system which is unfair. The entire process is riddled with breaches of Mr Lai’s internationally protected rights. The PRC’s response to the UN Experts is reprehensible and displays contempt for the United Nations itself. It fails to respond to multiple specific concerns raised about serious violations of international law in Mr Lai’s case; it contains multiple assertions of fact which are self-evidently false and misleading; and it makes further thinly veiled threats to Mr Lai and his international legal team. These are the actions of a bully government.
The PRC’s claims that the media landscape in Hong Kong is “vibrant as ever” and that the NSL protects rights and freedoms are laughable. They cannot answer the UN Experts’ well-founded concerns, and so they simply deny reality. We call on the UK Government and the international community to now take robust action to support the UN Experts, protect Mr Lai’s fundamental rights and secure his immediate release.”
In international law matters, Mr Jimmy Lai and Mr Sebastien Lai are represented by an international legal team led by Caoilfhionn Gallagher KC, which includes Jonathan Price, Tatyana Eatwell and Jennifer Robinson, barristers at Doughty Street Chambers.
