By Jerome A. Cohen
What is taking place in Hong Kong’s Magistrates’ Court regarding bail hearings for the 47 democratic politicians is already an unthinkable travesty of justice and apparently is about to get worse.
The defendants were locked up Sunday, roughly a month earlier than scheduled, in an obvious effort to prevent them from being able to comment in public when, in a few days, the NPC imposes major changes in Hong Kong’s electoral system. Moreover, in order to try to show their eligibility for bail, some of the most prominent political figures have now felt coerced into abandoning their democratic political party and even firing their lawyers.
The unprecedented marathon, almost around-the-clock, four-day hearing makes a farce of procedural fairness. No single magistrate can fairly deal with the individual circumstances of 47 different bail applications in such a short time. The court system should never have arranged such a chaotic judicial review that has made Hong Kong’s formerly revered judicial system look like the willing instrument of the police and prosecution. Did only one magistrate have the confidence of the new NSL regime? At least five should have divided the work load and dealt with these cases in an orderly environment that did not put such strain on the magistrate as well as the abused defendants.
And now it looks as though the prosecution is seeking to persuade the magistrate NOT to reveal the bases for the bail decisions he is about to render. This would be a shocking restriction on the public’s right to know what the proceedings have been about and what the justification allegedly is for keeping these defendants locked up for at least many months to come. This dangerous and specious argument was rejected on February 18 by High Court Judge Andrea Pang for the reasons stated in her February 23 opinion in the most recent Jimmy Lai bail case. She found that the usual restrictions on informing the public do not apply, as the law makes clear, when it appears that the interests of public justice require otherwise.
It would be scandalous if in the cases of the 47, which are far more important than even the landmark Jimmy Lai litigation, the court were to conceal the reasons for its controversial decisions.
The government’s actions in this case are outrageous. On the one hand, it claims urgency and the need to keep these democratic leaders locked up immediately. On the other, it at the same time tells the court that it is a long way from completing its investigation and needs a three-month delay in further proceedings—all while the accused rot in jail awaiting trials that may well ultimately acquit them since the charge of conspiring to subvert is based on their exercise of the political rights provided by the rules regulating the affairs of the Legislative Council. Hong Kong is becoming a judicial “never never land”!