National security law: what does the UK withdrawal of judges from Hong Kong’s top court show about respect given to city’s judiciary and government?
- Departing judges’ statement shows continued confidence in city’s judiciary, source says, adding that the move would have minimal impact on court operations
- Some observers say the exits are ‘respectable’, ‘long overdue’, while others worry about ‘knock-on effect’ on remaining overseas judges in Court of Final Appeal
While supporters and detractors argue over Britain’s justification for withdrawing its last two judges from Hong Kong’s top court, legal experts and political commentators appear to agree on one issue – the city’s judicial system is still respected and seen in a separate light from the government.
The vote of confidence in that respect was spelled out in Wednesday’s statement by UK Supreme Court president Lord Robert Reed in announcing that he and vice-president Lord Patrick Hodge had resigned from serving in Hong Kong’s Court of Final Appeal.
In his resignation statement, Reed first praised the Hong Kong’s courts’ commitment to the rule of law, before moving on to say that having consulted the UK administration, they had decided they could not appear to endorse the Hong Kong government, which they accused of depriving people of freedom of expression.
Among those who acknowledged Reed’s recognition was the city’s first chief justice after Hong Kong’s transfer of sovereignty to mainland China, Andrew Li Kwok-nang.
“A significant part of Lord Reed’s announcement is his recognition that ‘The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law,” he said, in a statement to the Post.
A senior legal source, while noting the politicisation of the issue by the British government, echoed Li’s view: “There is no doubt that the UK judges have confidence in our judiciary.”
In separate statements, Hong Kong’s two largest legal bodies, the Bar Association and Law Society, called the judges’ withdrawal from the city’s top court deeply regrettable but noted the pair’s support for the legal system.
Senior counsel Ronny Tong Ka-wah, a government adviser on the Executive Council, also noted the recognition, but said he wished the judges had more “backbone” to resist the pressure from British politicians. “They admitted the rule of law in Hong Kong has a reputation. If so, why succumb?” he argued.
Opposition activist Eric Lai Yan-ho, a law fellow at the Georgetown University Law Centre in Washington, meanwhile, backed the UK judges’ move, calling it “respectable”. He noted that the outgoing judges had focused their criticism on the Hong Kong government rather than the courts.
The two judges were among 12 top overseas jurists serving at Hong Kong’s Court of Final Appeal, a long-standing arrangement that stood as a strong endorsement of the city’s rule of law.
The move to allow foreign judges from other common law jurisdictions to sit in Hong Kong’s courts was conceived in the 1980s, more than a decade before Britain handed the city back to China, when local legal talent was lacking, according to a study conducted by Lin Feng, a legal scholar from City University.
Political scholar Ma Ngok, from the Chinese University of Hong Kong, said there were disputes at the time between the pro-democracy and Beijing-loyalist camps on the number of overseas judges to be included in the Court of Final Appeal, with the former arguing against a quota.
But the city has mostly settled on one overseas judge in each Court of Final Appeal case since, with the arrangement taking on a more symbolic meaning as recognition of Hong Kong’s rule of law.
Around 1997, when Britain handed Hong Kong back to China, then chief justice Li also struck an agreement with the UK lord chancellor that the country would provide two serving judges to sit on the newly created Court of Final Appeal, as part of the UK’s continuing commitment to safeguarding the city’s rule of law.
That agreement ended with Britain’s decision on Wednesday.
Former secretary for justice Elsie Leung Oi-sie lashed out at the withdrawal, saying it was more “political, than legal”.
“I was all the more surprised because whilst recognising that the courts in Hong Kong continue to be internationally respected for their commitment to the rule of law, the judges resigned because they were concerned there might be the perception that they endorsed the values of the executive branch in terms of rights and freedom, as a result of the passing of the national security law,” said Leung, also a former vice-chairwoman of the Basic Law Committee.
If the judges were truly concerned about the impact of the national security law on the city, she added, “they should faithfully and without fear or favour, perform their duties in safeguarding the fundamental rights of the Hong Kong people by administering justice in accordance with evidence and law”.
Executive councillor Tong condemned the British government for breaching the Sino-British Joint Declaration.
“If there really is an issue with judicial independence, one is supposed to stay and safeguard it, not to walk away,” he said.
While top legal bodies and the Hong Kong government have decried the UK’s decision as putting politics before the law, other observers have said they believe the two judges have made the right move.
Public law scholar Phil Chan called the effort “long overdue”.
“[The UK judges] have thus far absolutely endorsed at every step an administration which has departed from the values of political freedom and freedom of expression,” he said.
Mark Daly, a human rights lawyer, said the rule of law could not be seen as a “narrow, superficial and thin concept” with safeguards on human rights, adding that the present “infrastructure has changed a lot and is less able to dispense justice”.
A senior counsel, speaking on condition of anonymity, called the situation a “sad day” and “wake-up call” for the city, urging the government not to exclude overseas judges from national security law cases “for that would arouse even greater suspicion”.
The remaining 10 judges, including six from Britain and the rest from Canada and Australia, are all retired jurists, meaning they are not bound by decisions made by their governments, should more withdrawals take place. Eight have told the Post they would remain.
Legal scholar Simon Young Ngai-man from the University of Hong Kong said he was worried about the possible “knock-on effect” for other judges, though most have served for many years and had strong personal ties with the city’s legal fraternity.
Former director of public prosecutions Grenville Cross shared the same concerns. “But, as they are retired, it will be easier for them to resist any governmental pressures in their home countries,” he said.
But the departure of the two judges would have minimal impact on the city’s judiciary, according to the senior legal source who spoke to the Post, adding that the city would have enough overseas judges to keep the court running.
“To put it bluntly, the rule of law underlies the work of the judiciary and this will not change with today’s announcement,” he said.
Victor Dawes, chairman of the Bar Association, said the decisions of top local judges were often cited by other jurisdictions these days, and the assistance of overseas jurists had since turned from a knowledge-based role into a symbolic one. Having said that, he appealed to the remaining judges to stay on.
Lawmakers from the pro-establishment camp are already proposing alternatives to Western judges.
Ambrose Lam San-keung, a lawmaker for the legal functional constituency, said he was very disappointed about the departure of the two judges, adding that it was a “concerted effort” by Britain to undermine the “one country, two systems” governing principle.
As a remedy, he suggested appointing judges from Singapore and Malaysia to ensure Hong Kong would remain perceived as a transparent and open judicial system, a view shared by his colleague Priscilla Leung Mei-fun.
“[Those places] have equally experienced and outstanding judicial talent which may be more understanding of [Hong Kong’s] social culture and family values,” said Leung, a member of the Basic Law Committee.
Others remained confident in the city’s top court.
“Whilst it is regrettable that the British judges have decided not to sit on the Court of Final Appeal, I have every confidence that the standard and quality of judgments emanating from the court will continue to command the highest respect in our community under the one country, two systems principle,” said Cheng Huan, a top criminal barrister.