The resignation of British judges puts the rule of law in Hong Kong in the spotlight

HONG KONG:

Two senior British judges recently resigned from Hong Kong’s highest appeals court as international concerns about the rule of law in the city intensify following the recent convictions of 14 prominent democracy activists in connection with attacks on national security.

“Hong Kong, once a vibrant and politically diverse community, is slowly becoming a totalitarian state. The rule of law is under serious threat in every area on which the government has a strong opinion,” wrote one of the judges, Jonathan Sumption, in an editorial in The Financial Times, June 10.

The court’s other judge, Beverley McLachlin, announced Monday that she would step down when her three-year term expires on July 29.

WHY ARE OPT-OUTS IMPORTANT?

Although Hong Kong has a large number of lawyers representing the courts, trade and academia, since 1997 it has appointed foreign judges to the five-member appellate court in some cases.

They have been described as “the canary in the coal mine”, which instilled confidence in the Hong Kong 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 connected to British common law traditions. Critics, including the US government, say they are at risk after the imposition of a sweeping national security law in 2020 and another package of security regulations in March this year.

A list of local judges appointed by Hong Kong’s pro-Beijing leader to hear specific national security cases has handed down prison sentences to a number of opposition activists in recent years for a range of crimes, including rioting, illegal assembly and, most recently, conspiracy to commit overthrow.

The International Bar Association said the latest national security legislation, known as Art. 23, “significantly enables further repression of human rights in Hong Kong.”

The governments of Hong Kong and China have repeatedly said the city’s judiciary remains independent and the laws are needed to ensure stability.

HOW MANY FOREIGN JUDGES ARE STAYING ON THE HK SUPREME COURT?

Following the departures of Lawrence Collins, Jonathan Sumption and Beverley McLachlin, there remain eight non-permanent foreign judges on the Court of Appeal.

They don’t all sit together, but the chief justice selects them to join a panel of five CFA judges that flies to Hong Kong on specific cases.

CAN RESIGNATIONS LEAK OTHERS TO LEAVE?

Despite pressure, this is not clear at the moment. Retired judges say lawyers discuss the broader environment among themselves, but rarely publicly or with outsiders.

“As a judge, you learn how to stay above the fray,” one retired senior judge told Reuters. “If anyone can stop the pressure from bothering him, the old judge certainly can. “I’m not surprised many stay so long.”

Two judges – Beverley McLachlin and Nicholas Phillips – face the end of their three-year terms in July and October respectively. McLachlin will then leave, but no extension to Phillips’ term has been announced yet.

McLachlin, who previously served as chief justice of the Supreme Court of Canada for 17 years, has faced criticism from the Canadian press for remaining in that position, but has at times defended Hong Kong’s legal system.

Other judges have extended or joined in the last 18 months.

That said, international pressure on those left is likely to continue, especially as more high-profile national security cases enter the system and some defendants, such as media mogul Jimmy Lai, face life in prison.

Asked about Western criticism, Hong Kong’s top judge, Andrew Cheung, said in January he was confident he would still be able to retain top foreign judges, later saying they had “played a significant role” in the courts in some of the most substantive appeals ever heard. However, foreign judges have not yet been involved in the most high-profile national security cases.

WHAT ISSUES ARE ARISING?

One of the three remaining British judges, David Neuberger, is scheduled to hear a string of appeals this month involving pro-democracy activists including lawyers and former lawmakers Martin Lee and Margaret Ng and Jimmy Lai. They were convicted of cases of illegal assembly in 2019, when months of pro-democracy demonstrations took place.

Neuberger told Reuters he could not comment on the resignation but intended to remain in the Hong Kong court “to support the rule of law in Hong Kong to the best of my ability.”

Hong Kong judicial officials involved in national security cases, including Justice Department prosecutors, judges appointed by Hong Kong’s leader to hear national security cases, as well as the city’s Justice Secretary Paul Lam, will all be subject to scrutiny.

The Congressional-Executive Commission on China (CECC) – which advises Congress – is calling on the US to consider imposing sanctions on judges “presiding over national security cases for their role in undermining Hong Kong’s once-venerated rule of law,” while a rights advocacy group released reports on the matter topic.

The judiciary, as well as the governments of Hong Kong and China, condemned such calls.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)