Hong Kong: The political subtext behind the resignations of overseas non-permanent judges

Hong Kong government file image via HKFP.

Less than two weeks after a Hong Kong High Court convicted 14 pro-democracy politicians of “conspiracy to commit subversion” in the city’s landmark national security case involving 47 pro-democracy advocates, three overseas judges of the Court of Final Appeal handed in their resignations. 

As a former British colony, Hong Kong continued adopting the Common Law system after its handover to China in 1997. The appointment of non-permanent judges (NPJs) from other Common Law jurisdictions is a mechanism to ensure the independence of the city’s judiciary under China's “One Country Two Systems” policy, as explained by Melissa Pang, the then President of the Law Society of Hong Kong: 

NPJs are all eminent judicial officers highly respected in their own jurisdictions and committed to the fair administration of justice in accordance with the law. Their acceptance of the appointment as NPJs to sit on the city’s top court sends a clear message of their confidence in Hong Kong’s judicial system in upholding the rule of law and judicial independence.

Their resignations, hence, signify a pessimistic view of Hong Kong's judicial independence.

“Hong Kong is slowly becoming a totalitarian state”

The latest three resignees are two prominent British judges, Lord Lawrence Collins and Lord Jonathan Sumption, and Canadian judge Beverley McLachlin. Lord Collins told the Financial Times that his resignation was related to the “political situation” in Hong Kong. Lord Sumption later wrote a long statement in the Financial Times explaining that it is “no longer realistic” for overseas judges to help sustain the rule of law in Hong Kong.

Lord Sumption later explained on a BBC radio program that the recent conviction of 14 pro-democracy activists was the “last straw” behind his resignation. The High Court judgement asserted that the 47 activists who had taken part in organizing unofficial primaries among pro-democracy candidates to run for Legislative Council (Legco) elections in 2020 were involved in a plan to force the Chief Executive into resignation as they signed a statement agreeing to press for universal suffrage and other concessions as a condition of approving the budget once they won the elections. However, Lord Sumption argued against the High Court ruling in his statement in Financial Times that the power to veto the budget is written in the Basic Law and, hence, should be institutionally protected:

…the High Court decided that rejecting the budget was not a permissible means of putting pressure on the chief executive to change his policies. […] That would interfere with the performance of his functions. The result is that Legco cannot exercise an express constitutional right for a purpose unwelcome to the government. Putting a plan to do this before the electorate was branded a criminal conspiracy. The maximum sentence is life imprisonment, the minimum 10 years.

While Lord Sumption is still hopeful that the appeal court may reverse the judgement, he highlighted three problems that created an “impossible political environment”.

The first is the legal framework of the Beijing-imposed National Security Law and the colonial law against sedition, which limits the judges’ freedom of action. Both sets of laws criminalize speeches. For example, political slogans, such as “Liberate Hong Kong, Revolution of the Times”, were interpreted as seditious, or acts that incited secession in various trials.

The second is the “interpretation” power of the standing committee of the National People’s Congress in Beijing to reverse decisions made by the local top court, as shown in the deprivation of Jimmy Lai’s right to hire a UK counsel to represent him in court. The third problem points to the “paranoia of the authorities”:

An oppressive atmosphere is generated by the constant drumbeat from a compliant press, hardline lawmakers, government officers and China Daily, the mouthpiece of the Chinese government. A chorus of outrage follows rate decisions to grant bail or acquit. There are continual calls for judicial ‘patriotism’. […] Intimidated or convinced by the darkening political mood, many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it. […] The least sign of dissent is treated as a call for revolution. Hefty jail sentences are dished out to people publishing ‘disloyal’ cartoon books for children, or singing pro-democracy songs, or organising silent vigils for the victims of Tiananmen Square.  

Reactions from Hong Kong and Beijing

In response to Lord Sumption’s criticism, the Hong Kong government expressed strong disagreement in a statement:

There is absolutely no truth that the HKSAR courts are under any political pressure from the Central Authorities or the HKSAR Government in the adjudication of national security cases or indeed any case of any nature; or that there is any decline in the rule of law in Hong Kong. Anyone who suggested otherwise, no matter what the reasons or motives may be, would be utterly wrong, totally baseless, and must be righteously refuted.

It blamed foreign interference instead:

Real threats to the independent exercise of judicial power currently faced by the HKSAR courts indeed come from foreign government officials, politicians and political organisations, including blatant attempts to interfere with ongoing legal proceedings, and the despicable threats to impose so-called “sanctions” against judges on account of their performance of judicial functions in cases where the outcomes are not to the liking of these external forces, which are plainly contrary to fundamental principles of international law and international relations.

Chief Justice Andrew Cheung of the Hong Kong Court of Final Appeal addressed the “problems” raised by Sumption as “a tension often exists between protection of fundamental rights and safeguarding national security” rather than political interferences. 

Beijing's reaction was more militant. A Hong Kong and Macau Liaison Office spokesperson slammed Sumption for smearing the national security law and  accused him of letting himself be “a tool of the UK’s political manoeuvring and a pawn of foreign interference trying to destroy Hong Kong’s stability.”

Loyalty conflicts

A number of non-permanent overseas judges have resigned after the enactment of Beijing-imposed national security law. In 2022, Lord Robert Reed and Lord Patrick Hodge resigned from their positions, citing concerns over the erosion of political freedom and freedom of expression. After the latest round of resignations, four NPJs remain in Hong Kong, and seven are based overseas. They sit in one of the seats among the five top judges in the Court of Final Appeal trial.

Human rights activists have been criticizing the NPJs for their complicit role in the political prosecution of dissidents. In May 2024, the Committee for Freedom in Hong Kong (CFHK) published a report, “Lending Prestige to Persecution: How Foreign Judges are Undermining Hong Kong’s Freedoms and Why They Should Quit”, which listed political prosecution cases involving the NPJs. For example, former Australian NPJ Anthony Gleeson was involved in the conviction of prominent activist Chow Hang-tung in a trial in January 2024 for inciting an unauthorized assembly (annual candlelight vigil) in 2021, even though she had won an appeal against the district court judgement in the High Court in 2022. Two months later, Gleeson expressed that he did not wish to renew his appointment and became a former judge. 

The report also pointed out that some of the British NPJs are members of the House of Lords in the United Kingdom and have taken an oath of allegiance to the Crown. This has resulted in “irreconcilable conflicts” as NPJs are also expected to plead allegiance to the Hong Kong government. Among the remaining seven overseas NPJs, Lord Neuberger of Abbotsbury, Lord Phillips of Worth Matravers and Lord Hoffmann are in such conflicting positions. 

Meanwhile, a growing voice from the pro-establishment camp within Hong Kong calls for an end to the appointment of overseas NPJs. Ronny Tong, a top government advisor, wrote in the South China Morning Post:  

At the end of the day, one is forced to arrive at the logical conclusion that foreign judges sitting on our Court of Final Appeal is more for perception, or for show, if you like, rather than actually making a difference in the exercise of the judicial function. […] So do we still need British judges to shore up our reputation? Some would argue not. Few other places on Earth allow foreign judges to sit on their final appeal court, so should we continue this tradition, for want of a better word, forever?

As both pro-democracy and pro-establishment forces are not in favour of the presence of overseas NPJs in the judicial system, the legal practice may soon end, and Hong Kong's Common Law legal tradition may become more hybrid under a totalitarian system, as Lord Sumption foretold. 

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