Day: April 12, 2023

Jailed pro-democracy media magnate Jimmy Lai, who is awaiting trial under a strict national security law, has launched a legal challenge against the Hong Kong government over its refusal of a work visa to his British barrister.

Lai, whose Next Digital media empire and its flagship Apple Daily newspaper were forced to close amid a national security investigation, will be tried on charges of “collusion with a foreign power” and others linked to “seditious publications.”

His legal team filed a writ calling on the city’s High Court to overturn a decision by the Committee for Safeguarding National Security not to grant barrister Timothy Owen the necessary visa to represent 

In a separate writ, his legal team argued that if the committee is empowered to decide whether any judicial procedure is related to national security, the entire judicial system will collapse given the fact that the committee is not itself subject to any judicial review processes.

Last month, Lai’s lawyers testified to the United Nations Human Rights Council in Geneva over ongoing criticisms and concerns about the Hong Kong and Chinese authorities’ treatment of Lai.

China’s National People’s Congress ruled in December that top officials in the Hong Kong government have the power to bar foreign lawyers from representing clients in “national security” cases, after three failed bids in the city’s courts to get Owen disqualified.

The Court of Final Appeal had ruled in favor of Lai’s application to engage Owen, but Chief Executive John Lee subsequently asked the National People’s Congress Standing Committee for an interpretation of the national security law regarding overseas lawyers’ participation in such cases.

Trial postponed

Lai’s trial on several charges of “collusion with a foreign power” — under a national security law imposed by the ruling Communist Party in the wake of the 2019 protest movement — has been postponed until September 2023. He is currently serving a separate five-year, nine-month jail term for fraud over the subletting of office space at his Next Digital headquarters. 

The dispute over Lai’s hiring of British Kings Counsel barrister Tim Owen to lead his defense team, has highlighted concerns that Hong Kong’s promised judicial independence is already rapidly eroding in favor of top-down control by an executive that takes orders from Beijing.

Much of the prosecution’s evidence — in a trial that will take place before a panel of government-appointment judges and no jury — centers on opinion articles published in Lai’s now-defunct Apple Daily newspaper.

The legal challenges came as the government introduced a bill in the city’s legislature that would allow the chief executive to rule on whether foreign lawyers can be engaged in national security trials, Radio Television Hong Kong reported.

Power controlled by Communist Party

Current affairs commentator Sang Pu, who is a lawyer by training, said Lai is unlikely to win either legal challenge, but that the case could force the government to be more transparent about who decides what.

He called for an explanation of how the Committee for Safeguarding National Security was able to put pressure on the Immigration Department to deny Owen a work visa.

“Even if this challenge is successful … the [authorities] could just call for the chief executive to issue a decision, and that would be the end of it anyway,” Sang said. 

“All the power is in the hands of the Hong Kong government, which is controlled by the Chinese Communist Party, so there is a limit to what Jimmy Lai can do about it,” he said.

Justice Minister Paul Lam told lawmakers that it was legitimate, logical and reasonable to make Hong Kong’s chief executive the gatekeeper on matters involving national security.

“We have to emphasize again that the bill has no adverse impact on the rule of law, the courts’ independent judicial powers as guaranteed under the Basic Law, and the parties’ right to choose their legal representation and the right to a fair trial,” Lam claimed in comments reported by Radio Television Hong Kong.

Lam denied the changes would amount to a blanket ban on foreign lawyers taking cases under the national security law.

Freedom under attack

The move came as an overseas journalists’ association described a recent exodus of Hong Kong journalists from the city amid a “severe crackdown on freedom of expression” under the national security law, which was imposed by Beijing in the wake of the 2019 pro-democracy movement.

The Association of Overseas Hong Kong Media Professionals estimated in a recent report that hundreds of former Hong Kong journalists are now living overseas, and that the number is growing.

The majority of exiled journalists interviewed for the report worked as reporters in Hong Kong, while more than one-third of them had more than 21 years’ experience in the industry.

“The overwhelming majority do not plan to return to Hong Kong in the near future, despite facing problems in their new homes,” the group said in a press release attached to the report.

It said more than half of respondents are no longer working as journalists, although most would like to.

“Many have found a wide range of alternative employment in occupations ranging from car mechanic work, to floristry and employment as a barista,” the report said, citing language barriers and other barriers to media jobs overseas.

It said many reported suffering from “burnout and in other cases trauma as a result of their experience in Hong Kong.”

“Overall, this survey paints a picture of an exiled media community facing multiple challenges combined with a motivation to maintain the tradition of a free Hong Kong media, albeit in exile,” group Chairman Joseph Ngan said.

Translated by Luisetta Mudie. Edited by Malcolm Foster.

A field was strewn with bodies and body parts. As many as 110 were killed, including 30 children, and more than 50 were wounded in the latest act of carnage by the Myanmar military against their own population. 

The April 11 attack on an office opening ceremony in the strife-torn Sagaing region’s Kanbalu township is another junta war crime that looks set to go unanswered by the international community, beyond condemnation from the United Nations, Western governments and rights groups.

International vows to hold the regime accountable can be upheld by focusing on the Myanmar military’s increasing reliance on long-range artillery strikes and air assaults. 

The use of planes and helicopters is increasing, with new jets and rotary wing aircraft imported from both Russia and China.

There were at least 600 air attacks by the military between February 2021 and January 2023, a tacit acknowledgment that the Tatmadaw, as the feared armed forces are known in Burmese, is unable to deploy forces in large parts of the country. Light Infantry Divisions, which do most of the fighting, are undermanned and spread thin.

The use of jet fighters and helicopter gunships has only increased as the military is bogged down in a multi-front war, against the opposition National Unity Government, their roughly 300 People’s Defense Forces, and allied ethnic resistant organizations. The military has put 47 of 330 townships under martial law, a sign of its tenuous control.

Frustrated with military setbacks, the leadership of the State Administrative Council, the junta’s formal name, has begun to relieve officers from command and increased tactics designed to terrorize the population into submission. 

Jet fuel sanctions

The international community could easily do something. You cannot fly jet planes without jet fuel, and Myanmar is 100 percent dependent on imports.

In a November 2022 report, Amnesty International concluded that foreign firms could not claim they were simply selling A1 aviation fuel to civilian jetliners, as the military controlled the entire supply chain. Once the fuel was in the tanks in Thaliwa port, no one could not ensure that it was not being diverted to military aircraft.

The primary supplier of jet fuel to the country was Puma Energy, the Singaporean-based subsidiary of the Swiss firm Trafigura. Puma established two joint ventures in Myanmar. The first, Puma Energy Asia Sun, was established in 2014. Its local partner, Asia Sun Energy was established in 2013 by U Win Kyaw Kyaw Aung who has close military ties. Puma owned 80 percent of the 91,000m3 jet fuel storage tank at Thaliwa port.

Its second venture was a minority stake in National Energy Puma Aviation Services, a joint venture established in 2015 with the state-owned Myanmar Petrochemical Enterprise, which distributed and stored jet fuel at airports. Myanmar Petrochemical Enterprise is responsible for oil and gas exploration and domestic gas transmission.

Puma announced it sold its ownership stake in the first firm to Asia Sun Energy in October 2022. The sale of its stake in the second firm is less clear. Some reports claim that Asia Sun Energy also purchased Puma’s shares in the distribution venture. 

On March 24 the U.S. Treasury Department sanctioned Asia Sun Energy and Asia Sun Trading Company, which purchased foreign jet fuel, in an attempt to hurt the military’s war-fighting capabilities.

However, the U.S. Government seems to have been unaware that the company had been doing business as, Shoon Energy after purchasing Puma’s shares in Puma Energy Asia Sun. And it’s not clear if the US sanctions apply to the unnamed Shoon Energy.

Things like this happen because in a little noticed move in September 2022, Myanmar’s military government shut down public access to a key part of their Myanmar Companies Online (MyCO) corporate registry in order to shield the shareholdings of the senior leadership and their families, to cover up the redistribution of seized assets, and to safeguard the establishment of front companies to evade international sanctions.

Indian, Thai or Singaporean firms that have sold jet fuel to Myanmar in the past, who may be fearful of doing business with sanctioned companies, need only to establish a new corporate front or subsidiary. The ability to do due diligence has plummeted.

Even if the international community sanctioned more import and distribution firms, many foreign partners would easily be able to skirt sanctions through new corporate fronts.

So what can be done?

Earth Rights International and Global Witness, in a February 2023 report about the shortcomings of the international sanctions regime on Myanmar, suggest a page out of the Russia sanctions playbook: namely suspending third-party services, including insurance and financial services to the companies that own the vessels involved in shipping aviation fuel to Myanmar.

In December 2022, the United States and the European Union banned protection and indemnity (P&I) clubs from providing insurance to any Russian vessel that was carrying Russian oil above the $60 a barrel price cap.

P&I clubs specialize in providing insurance for maritime, large risk, heavy cargo and container vessels. No ship can enter a port and on- or off-load goods without P&I insurance. This is particularly true for tankers carrying oil, due to the enormous financial costs of oil spills.

There is nothing stopping the international community from imposing similar sanctions in Myanmar.

A rapacious Indian or Thai seller of jet fuel may have an incentive to sell jet fuel to the junta as they bomb innocent civilians. But if the shipping firms can’t get the P&I insurance that they require, there’s no way to get the jet fuel to the Thilawa terminal. 

Lloyds of London, the premier maritime insurance firm, has warned about increasing Russian ship-to-ship transfers to evade sanctions. This, too, could happen with Myanmar, but it does raise the costs, and the potential for being caught and ensuing sanctions could be enough of a deterrent for some shippers.

Of course that won’t stop the overland supply of jet fuel to Myanmar. But overland border trade is less certain than in the past. The route from Chin State is no longer secure, and overland trade from Bangladesh is conditioned on the tenuous November 2022 ceasefire with the Arakan Army.

China’s main supply lines into Myanmar go through Shan State whose security landscape is quickly evolving as the Ta’ang National Liberation Army and Myanmar National Defense Alliance Army are engaged in more frequent clashes with the Tatmadaw and are increasing their training and support to the NUG’s forces. Finally, the pro-SAC Border Guards Forces along the Thai border are increasingly under attack, as seen in recent fighting around Shwe Kokko.

The latest bombing should be a clarion call for the international community to sanction the sale of jet fuel to a regime that is waging an air war against its own population. But smart sanctions, such as proscribing P&I insurance to vessels carrying jet fuel to Myanmar, is the most effective way to save innocent lives.

Zachary Abuza is a professor at the National War College in Washington and an adjunct at Georgetown University. The views expressed here are his own and do not reflect the position of the U.S. Department of Defense, the National War College, Georgetown University or RFA.

In Brief 

In 2003, China agreed to a 10-year loan of two pandas – a male named Le Le and a female named Ya Ya – to the Memphis Zoo. After being renewed for another 10 years in 2013, the Memphis Zoo announced in December 2022 that both pandas would be sent back to China in April 2023. 

Le Le unexpectedly died on Feb. 1, 2023, arousing grief and rage from Chinese netizens. Claims soon arose that both pandas had been regularly mistreated and malnourished by the zoo, with some even going so far as to say that Le Le had been maimed before and after his death. 

The surviving panda Ya Ya’s patchy, dry fur was also claimed to be a sign of mistreatment.

Asia Fact Check Lab (AFCL) found such claims to be false and lacking any credible sources to support them. 

In Depth

A recent picture on the Chinese social media platforms Douyin and Weibo appearing to show Le Le with a wound on his upper and lower backbone raised netizens’ concerns over potential panda abuse. The accompanying caption read, “Bloodstains on our national treasure Lele, after being knifed by a Memphis Zoo [official] in the U.S.” 

FabuLous, a popular science blogger on Weibo with over 616,000 fans, said in a Weibo post soon afterwards that the panda in the photo was actually Shu Lan, a female kept at the Lanzhou Zoo in China’s Gansu province. 

Was Le Le knifed by a zookeeper?

After checking both claims, AFCL found allegations that Le Le had been knifed to be false. The panda in the photo is indeed Shu Lan. 

AFCL first used the Chinese search engine Baidu to find the picture of the injured giant panda, and later using the photo tracker tool Tineye to trace where the original picture without captions came from. The photo first appeared on Oct. 18, 2016, long before the recent video accusing Lele’s suspected abuse. 

Tineye’s search results also brought up a Weibo post from China’s National Forestry Administration that allowed AFCL to confirm the panda’s identity as Shu Lan. The post revealed that the original photo was provided by a netizen about the suspected abuse of Shu Lan at the Lanzhou Zoo.

A subsequent search on Baidu using “Shu Lan” and “Lanzhou Zoo” as keywords showed that CCTV covered the incident on Oct. 17, 2016.

Was Lele’s left eye gouged out and sold for $720,000?

Rumors that Lele’s left eye was gouged out and sold for a whopping $720,000 also abounded on Douyin. Similar to the above claim regarding Le Le being knifed, these claims circulating on the Chinese internet were second-hand and unverified.

AFCL found two points of suspicion with such claims. The first is that the stated selling price of the eye varies from claim to claim, with some saying $720,000 and others $600,000. All such claims do not provide any independent, authoritative sources to support their conclusions. The second point is that there is no consensus at all on specifically which eye was gouged out. Some claim the right eye, some claim the left and some even claim both. 

None of the joint reports issued by the China Zoological Society and the Memphis Zoo have indicated that Le Le is missing an eye. Common sense would also dictate that the visitors at a zoo would notice a missing eye.

Several Chinese panda experts also worked with the Memphis Zoo to complete Lele’s autopsy, determining that the initial cause of death to be a heart attack. No mention was made of gouged eyes.

FabuLous also responded to this rumor, claiming that the photo of the gouged eyes circulating on the Internet (the first from the left in the photo below) was in fact Meilan, a giant panda from Dujiangyan in China’s Sichuan province. Her seeming lack of an eye in the picture was caused by the camera angle overemphasizing the shade over the eye, FabuLous said.

Is the panda in the photo Le Le?

After comparing the photo with other pictures of both Le Le and Meilan, AFCL found significant differences in head shape and black eye rings confirmed that the panda in the picture is certainly not Le Le. Owing to the lackluster camera angles however, it is difficult to state with complete confidence that the panda in the photo is Meilan. It’s possible that the photo is a composite of several different panda pictures cut and spliced together. 

P7

The shape of both the panda’s head and black eyes ring are two features that distinguish it from Lele. Lele’s head is oval with thin cheeks on both sides of his face. By contrast, the panda in the photo has a round and flat head with fat cheeks, similar to Meilan. Lele’s black eye rings are more symmetrical, while the right eye of the panda in the photo is rounder than its noticeably more sunken left eye, another point similar to Meilan. 

Is Ya Ya’s patchy skin a sign of abuse? 

Various videos and comments by Chinese netizens have also claimed that Memphis Zoo officials mistreated Ya Ya, with one oft-cited piece of evidence for their claim being Ya Ya’s often patchy fur. An article on the popular Chinese social media platform Weixin noted that she looks “thin and bony with dry hair, as if she’s been abused.”  

AFCL found that Ya Ya’s patchy fur is the result of a chronic skin disease. Memphis Zoo acknowledges the condition, stating on their website that, “the skin disease has genetic origins. As the panda gets older, hormonal fluctuations caused by changes of season can result in sparse and uneven fur.”

Xie Zhong, vice president of the Chinese Association of Zoological Gardens (CAZG), repeated the same sentiment in a story written by China Daily earlier this year, noting earlier in the article that Ya Ya had been “well cared for since being lent to the Memphis Zoo in 2003.” CAZG is a non-profit Chinese organization tasked with overseeing animals in captivity within China, as well as Chinese animals loaned abroad. 

At a Chinese Foreign Ministry press conference on April 11, spokesperson Wang Wenbin noted in response to questions concerning Ya Ya’s health that “the overall condition of the giant panda is relatively stable except for the fur condition caused by skin disease.” Wang further noted that Chinese personnel from CAZG and the Beijing Zoo were working with the Memphis Zoo on taking care of Ya Ya during her final days in the United States. 

Conclusion

AFCL found claims that Memphis officials maimed or mistreated either Le Le or Ya Ya to be false. No credible reports show that either panda was abused during their time at the zoo. 

The Memphis Zoo and its partner organization the Chinese Association of Zoological Gardens released joint statements on their respective websites last year which noted that, “CAZG is confident that the giant pandas at the Memphis Zoo are receiving the highest quality of care.”