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]
This is huge news. Hong Kong's judiciary was the sole area untouched by China's increase of poltical control, and the presence of foreign judges have often been cited as proof that Hong Kong's courts remain independent. This will raise (more) alarm bells about the city's future. https://t.co/OwZN9hAAGu
— Iain Marlow (@iainmarlow) March 30, 2022
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]
China continues to use the National Security Law to grossly undermine Hong Kong’s fundamental rights and freedoms.
⁰I have concluded that it is no longer tenable for British judges to sit on the Hong Kong’s leading court. @uksupremecourt 👇https://t.co/Dd2nkMR0M0 pic.twitter.com/RzQPwjhHJC
— Liz Truss (@trussliz) March 30, 2022
The UK Government and @UKSupremeCourt agree it is no longer appropriate for serving UK judges to continue sitting in Hong Kong courts.
I thank all those judges who served there since 1997 – upholding the international rule of law which we proudly defend.https://t.co/tbPCPk7ZTJ
— Dominic Raab (@DominicRaab) March 30, 2022
China has continued to use the National Security Law to undermine fundamental rights and stifle opposition voices in Hong Kong.
Foreign Secretary @TrussLIz supports the withdrawal of serving UK judges from the Hong Kong Court of Final Appeal 👇🏻
— Foreign, Commonwealth & Development Office (@FCDOGovUK) March 30, 2022
Britain has pulled the one most impactful, solid HK card it could have pulled:
"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 legitimising oppression."https://t.co/L3bNjXn3Aq— Shibani Mahtani (@ShibaniMahtani) March 30, 2022
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 welcome resignation of the two British judges was long overdue. “Better late than never.” I hope this will stimulate similar resignations by the remaining foreign non-permanent judges. It is ludicrous to see those in Beijing and HK who condemn…1/nhttps://t.co/KPqtXGtLX2
— Jerome Cohen 孔傑榮(柯恩) (@jeromeacohen) March 31, 2022
…role in the truncated judicial system established under Hong Kong’s National Security Law (NSL) regime. Their presence as “window dressing” has too long misled the world about the grave damage done to the Hong Kong courts by the application of the NSL. 3/3
— Jerome Cohen 孔傑榮(柯恩) (@jeromeacohen) March 31, 2022
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]
HK’s former leader called the decision of UK judges resigning from HK “a despicable example of administration interfering with judiciary” “an unwashable taint on UK’s judicial independence” “a bankruptcy notice of UK’s separation of powers” and “an international laughing stock”. pic.twitter.com/8YbJoAyKb0
— Xinqi Su 蘇昕琪 (@XinqiSu) March 30, 2022
Andrew Cheung, Hong Kong’s chief justice, says the city commitment to rule of law and judicial independence is “wholly unaffected by the departure of the two judges.” pic.twitter.com/9bKOtcBcDh
— Austin Ramzy (@austinramzy) March 30, 2022
Bar chairman Victor Dawes SC also expressed regret on UKSC's move, and cited Lord Sumption's opinion piece in the Times last year, which at the time called out UK lawmakers' for exerting political pressure on the UK bench.https://t.co/hUscFuoLHn
— Alvin Lum (@alvinllum) March 30, 2022
Some noted the irony of Hong Kong and Chinese officials’ invocation of political interference in their criticism of a court outside of their jurisdiction:
The HK government, which continuously undermines judicial independence as a pillar of democracy and human rights, criticises the court of another jurisdiction being politicised. Well. https://t.co/7znLTAhRFT
— Eric Yan-ho Lai 黎恩灝 (@laiyanhoeric) March 30, 2022
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]
The withdrawal of UK judges in Hong Kong has been an initiative pushed by all sides of politics. It's a consensus that Hong Kong does not enjoy rule of law. I urge the remaining UK judges in HK to resign as soon as possible.
— Nathan Law 羅冠聰 (@nathanlawkc) March 30, 2022
2/ That said, the @UKSupremeCourt ’s statement appears to imply the resignations are votes of no confidence to the city’s administration that does not respect political freedom and free speech anymore, and the Court does not want to collaborate with the HK administration anymore.
— Eric Yan-ho Lai 黎恩灝 (@laiyanhoeric) March 30, 2022
4/ The resignations of Lord Hodge and Lord Reed inevitably signal the business community in HK about the integrity of the city’s legal system. It would also alert other rights-respecting jurisdictions of HK’s political and judicial environments in the eve of EU-China Summit.
— Eric Yan-ho Lai 黎恩灝 (@laiyanhoeric) March 30, 2022
There are still 6 UK judges, 3 Australian judges & 1 Canadian judge at CFA. Will the other UK judges leave? Lai is skeptical, because they were all former or retired judges, the UK Supreme Court decision isn’t binding.
“It’s up to their own ethical and political judgment.” – Lai pic.twitter.com/Nr6CUJ76Mp
— Kris Cheng (@krislc) March 30, 2022
