Senior British Judges Resign from Hong Kong’s Highest Court, Citing Erosion of Freedoms

On Wednesday, the two most senior judges of the UK Supreme Court resigned from their overseas positions on Hong Kong’s Court of Final Appeal, the city’s highest court. The two judges’ resignations further challenge the legitimacy of Hong Kong’s rule of law and the independence of its courts since Beijing imposed the National Security Law in 2020. Hillary Leung at the Hong Kong Free Press reported on the statement by one of the judges, who claimed that the administration “has departed from values of political freedom, and freedom of expression:

Court of Final Appeal judges Right Honourable Lord Robert Reed and the Right Honourable Lord Patrick Hodge submitted their resignations on Wednesday with immediate effect.

“The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law,” a statement from Lord Reed, who is president of the UK Supreme Court, said.

“Nevertheless, I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed.” [Source]

Lord Reed has served as president of the UK Supreme Court since 2020, and as a non-permanent judge on Hong Kong’s Court of Final Appeal since 2017. Lord Hodge has served as deputy president of the UK Supreme Court since 2018, and as a non-permanent judge on the Court of Final Appeal since 2021. Since the British handover of Hong Kong to China in 1997, the Court of Final Appeal has hosted several judges from the UK, Canada, and Australia as non-permanent members in order to maintain a connection to the world of common law. Their presence has also indicated international confidence in Hong Kong’s judiciary. Hong Kong Chief Executive Carrie Lam even said so herself when Lord Hodge joined the court in 2021, as China Daily reported at the time:

Lam said the presence of the esteemed non-permanent judges manifests the judicial independence of Hong Kong, helps maintain a high degree of confidence in its legal system and allows Hong Kong to maintain strong links with other common law jurisdictions.

[…] Ronny Tong Ka-wah, senior counsel and executive councilor, said Hodge’s acceptance of the role demonstrated the international recognition of Hong Kong’s judicial independence. [Source]

However, foreign judges have also enabled Hong Kong’s legal crackdown on pro-democracy figures. Now, the withdrawals of the two senior British judges “are votes of no confidence to the whole political and legal environment after the national security law,” said Eric Yan-ho Lai, the Hong Kong Law fellow at the Center for Asian Law in Georgetown University. As Jill Lawless and Danica Kirka reported for the Associated Press, the British government determined that their presence was no longer tenable given the current political situation:

British Prime Minister Boris Johnson said the two U.K. judges had “concluded that the constraints of the national security law make it impossible for them to continue to serve in the way that they would want.”

“I appreciate and I understand their decision,” he said.

In announcing the move, British Foreign Secretary Liz Truss said there had been “a systematic erosion of liberty and democracy in Hong Kong.”

“The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong’s leading court, and would risk legitimizing oppression,” she said. [Source]

Under the National Security Law, national security cases are heard by judges who can be personally picked by the Hong Kong Chief Executive or by judges in mainland China. Haroon Siddique and Helen Davidson from the The Guardian described how the two British judges had no positive influence on national security cases in their position and thereby gave a false sense of legitimacy to the government:

Chung Ching Kwong, the Hong Kong campaign’s director for the Inter-Parliamentary Alliance on China, said the decision came as a surprise, given expectations of a Westminster Hall debate on Wednesday morning.

Kwong told the Guardian the campaigners had been seeking to have the British judges removed from the court of final appeal as their presence was “no longer acting as a moderating force, as the government has claimed, but was giving a false sense of legitimacy to the Hong Kong government”.

Kwong said the non-permanent judges had no impact over political cases, and so there was no positive influence they could wield by remaining.

“They are only in the court of final appeal, and when it comes to national security law cases the Hong Kong government gets to handpick which judges can sit on the panel. None of the British judges have ever been chosen.” [Source]

The Chinese and Hong Kong governments criticized the British judges’ withdrawal and called it politically motivated. The spokesperson of the Office of the Commissioner of the Ministry of Foreign Affairs of China in Hong Kong stated: “The UK, through such a trick, smeared the National Security Law for the HKSAR and its rule of law, and interfered in Hong Kong affairs … [The] UK attempted to denigrate the Chinese Government’s policies towards Hong Kong and discredit the development of its rule of law by playing the ‘foreign judge’ card.” Chris Lau from the South China Morning Post described Carrie Lam’s claim that the judges’ withdrawal was political and not connected to the National Security Law

“We have no choice but acquiesced in the two eminent judges’ decision to resign from the Court of Final Appeal following the UK government’s decision to discontinue an agreement that has been respected and has served both the Hong Kong and UK interests well for years,” Chief Executive Carrie Lam Cheng Yuet-ngor said.

“But we must vehemently refute any unfounded allegations that the judges’ resignations have anything to do with the introduction of the Hong Kong national security law or the exercise of freedom of speech and political freedom in Hong Kong.”

The government issued a separate statement against Britain’s “unfounded allegations”.

“The fact that there would be a debate in the UK Parliament may well have influenced the resignation of the two serving UK judges,” the statement read.

“This is clear evidence of external political pressure on judges of an otherwise independent judiciary. This will not be tolerated and will not happen in Hong Kong.” [Source]

Some noted the irony of Hong Kong and Chinese officials’ invocation of political interference in their criticism of a court outside of their jurisdiction:

Four of the remaining ten foreign judges on the Court of Final appeals said that they would remain in their positions, and the other six have not yet stated whether they would stay or resign. Australian judge James Spigelman set the precedent for foreign judges’ departure from the Court of Final Appeal when he resigned in September 2020 for reasons “related to the content of the national security legislation.”

“The continued presence of overseas (judges) is of clear reputational benefit to the HK government and the HK government knows it,” wrote Alvin Cheung, a postdoctoral fellow at McGill University and expert on the abuse of legal norms and institutions by authoritarian regimes. “This reputational benefit far outweighs the potential for overseas (judges) to act as any sort of meaningful restraint.” Austin Ramzy from The New York Times described how the resignations of these two senior British judges put pressure on the remaining foreign judges to follow suit

The role of the British Supreme Court judges on Hong Kong’s Court of Final Appeal is unique because they are acting judges at home. Other foreign judges on the Hong Kong court, including current members from Britain, Australia and Canada, are retired.

But the resignation of the high-profile British judges could pressure others to follow, legal experts said.

“This will influence a lot of public opinion, even though it may not actually be true in terms of the state of justice in Hong Kong,” said Simon Young, a law professor at the University of Hong Kong.

“This ongoing perception and reality — you see this great divide,” he added. “And then, of course, it puts the other foreign judges in a difficult position because they will be asked, ‘If this is true, why are you staying?’” [Source]


Subscribe to CDT


Browsers Unbounded by Lantern

Now, you can combat internet censorship in a new way: by toggling the switch below while browsing China Digital Times, you can provide a secure "bridge" for people who want to freely access information. This open-source project is powered by Lantern, know more about this project.

Google Ads 1

Giving Assistant

Google Ads 2

Anti-censorship Tools

Life Without Walls

Click on the image to download Firefly for circumvention

Open popup

Welcome back!

CDT is a non-profit media site, and we need your support. Your contribution will help us provide more translations, breaking news, and other content you love.