Cohen writes in a post to the China Law Discussion Group
Here is an Op Ed that may interest many on the List. While we freely celebrate the Year of the Ox, Jimmy Lai, “Giggs” and others do not, as the wheels of Hong Kong justice turn slowly.
Please note that the South China Morning Post rejected my Op Ed – the first time they have done this in the 13 years I have been regularly writing for them – on the ground that this Op Ed, about Hong Kong justice, could not be legally published in Hong Kong because the Lai case, which will drag on endlessly, is “sub judice”. Once a defendant has been charged, I was informed, the media can publish no commentary on the case.
I hope that the experts on Hong Kong law on the List will comment on the accuracy of this statement and its implications. This seems to be one restriction on freedom of the press that we cannot blame on Beijing. Happy New Year to all! Jerry
Now published in the Diplomat -here is the introduction to the piece
The Long-Term Implications of the Jimmy Lai Bail Decision
The Hong Kong Court of Final Appeal’s bail decision had something for everyone – and will help shape future national security cases.
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.
Read full op ed at https://thediplomat.com/2021/02/the-long-term-implications-of-the-jimmy-lai-bail-decision/
