Two senior British judges recently resigned from Hong Kong’s top appeals court as international concerns mounted over the rule of law in the city following the recent convictions of 14 prominent democratic activists amid a national security crackdown.
“Hong Kong, once a vibrant and politically diverse community is slowly becoming a totalitarian state. The rule of law is profoundly compromised in any area about which the government feels strongly,” wrote one of the judges, Jonathan Sumption, in an editorial in the Financial Times on June 10.
Another judge on the court, Beverley McLachlin, announced on Monday that she would step down when her three-year term expired on July 29.
WHY ARE RESIGNATIONS SIGNIFICANT?
While Hong Kong has a deep pool of legal professionals across its courts, commerce and academia, it has since 1997 appointed foreign judges to sit on the five-person court of final appeal for certain cases.
They have been described as a “canary in the coalmine”, generating confidence in Hong Kong’s judiciary as an independent entity free from outside interference after Hong Kong returned to Chinese Communist Party rule in 1997.
These judges do not dominate the system but help keep Hong Kong tied to British Common Law traditions. Critics, including the U.S. government, say these are under threat after the imposition of a sweeping national security law in 2020, and another set of security legislation in March this year.
A roster of local judges, designated by Hong Kong’s pro-Beijing leader to hear specific national security cases, have in recent years delivered jail terms to scores of opposition figures for a number of offences including rioting, unauthorised assembly and most recently, conspiracy to commit subversion.
The International Bar Association said the latest national security legislation, known as Article 23, “significantly enables further crackdowns on human rights in Hong Kong.”
The Hong Kong and Chinese governments have repeatedly stated that the city’s judiciary remains independent and the laws were needed to ensure stability.
HOW MANY FOREIGN JUDGES REMAIN ON HK’S TOP COURT?
After the departure of Lawrence Collins, Jonathan Sumption and Beverley McLachlin, eight foreign non permanent judges remain on the Court of Final Appeal.
They don’t all sit together but are selected by the chief justice to join the five-judge CFA, flying in to Hong Kong for specific cases.
COULD RESIGNATIONS SPARK OTHERS TO LEAVE?
Despite the pressures, that is far from clear at this point. Retired judges say jurists discuss the broader environment among themselves, but rarely publicly or with outsiders.
“As a judge, one is schooled in how to stay totally above the fray,” one retired senior judge told Reuters. “If anyone can keep the pressures from bothering them, an old judge certainly can. I’m not surprised many have stayed this long.”
Two judges – Beverley McLachlin and Nicholas Phillips – face the end of their three year terms in July and October respectively. McLachlin departs then but any extension of Phillips’ term has yet to be announced.
McLachlin, who previously served for 17 years as the Chief Justice of Canada, has faced Canadian press criticism for staying on, but has at times defended Hong Kong’s legal system.
Other judges have extended or joined in the last 18 months.
That said, the international pressures on those that remain is likely to continue, particularly as more high-profile national security cases move up the system, with some defendants like media tycoon Jimmy Lai facing possible life imprisonment.
When asked about Western criticism, Hong Kong’s top judge Andrew Cheung said in January he was confident he would still be able to recruit leading foreign judges, later saying they had “played a significant role” in the courts in some of the most substantive appeals heard. The foreign judges, however, have not been involved so far in the most high-profile national security cases.
WHAT CASES ARE LOOMING?
One of the three remaining British judges, David Neuberger, is scheduled to hear a number of appeals this month that involve pro-democracy campaigners including barristers and former lawmakers Martin Lee and Margaret Ng, and Jimmy Lai. They had been convicted for unauthorised assembly cases in 2019 when the months-long pro-democracy demonstrations took place.
Neuberger told Reuters that he could not comment on the resignations, but that he intended to remain on the Hong Kong court “to support the rule of law in Hong Kong, as best I can.”
Hong Kong’s judicial officials involved in national security cases, including prosecutors with the department of Justice, judges designated by Hong Kong’s leader to hear national security cases, as well as the city’s justice secretary Paul Lam are all facing scrutiny.
The U.S. Congressional-Executive Commission on China (CECC) – which advises Congress – has been calling on the U.S. to consider imposing sanctions on judges” presiding over national security cases for their role in weakening Hong Kong’s once venerated rule of law,” while rights advocacy groups have published reports on the issue.
The judiciary as well as the Hong Kong and Chinese governments have condemned such calls.
