Former UK Supreme Court Justice Jonathan Sumption, who resigned last week, criticized Hong Kong’s strengthened national security law in an interview with the British Broadcasting Corporation (BBC), stating that it is being used to “suppress peaceful political dissent, not just riots.” Sumption described the conviction of 14 of the 47 pro-democracy activists in the primary election case as the “last straw” that led to his resignation.
According to Sumption, the judgment in the case of the 47 activists signifies the court’s assessment that organizing political primaries is equivalent to national security crimes, indicating the extent to which some judges are willing to ensure the success of Beijing’s crackdown on democracy supporters.
Sumption also mentioned a significant issue where if the Chinese authorities dislike a ruling by the Hong Kong courts, they have the power to overturn it. He cited the high-profile prosecution of Jimmy Lai, founder of Apple Daily, where Beijing overturned the Final Court’s decision to allow Lai to choose foreign lawyers in 2023.
Sumption, as quoted by the BBC, emphasized that Hong Kong judges have to operate in a politically impossible environment created by China. He initially hoped to stay on to “see how things develop and hope that people can make a positive contribution,” but concluded after a long time that this was “unrealistic.”
However, Patrick Keane, a non-permanent judge in the Hong Kong Court of Final Appeal from Australia, appointed by Chief Executive Carrie Lam last year, still believes that the Hong Kong judicial system remains effective and independent. He stated that although Sumption is entitled to his views, individuals involved in cases still have the right to appeal, and it is unfair to criticize the system as ineffective before it has been put into operation fully.
When asked if he understands the criticisms against Hong Kong’s judiciary since Beijing’s crackdown, Keane noted that individuals who receive unfavorable judgments in court may feel negatively about the system.
Keane stated that his “red line” is the government pressuring the judicial system or refusing to accept court rulings, but he does not believe such incidents have occurred in Hong Kong. He described the situation as partly characterized by “show trials,” yet conversations with others have revealed that those involved do not consider them as such.
In a report by the UK’s The Law Society Gazette, David Neuberger, another foreign non-permanent judge in the UK Supreme Court since 2009, announced his decision to continue serving, following the resignations of Sumption and another judge. At a meeting of the International Court group in London, Neuberger expressed his commitment to stay, believing his continued presence can be beneficial and that leaving would cause harm. He hopes to support the rule of law and his colleagues in Hong Kong to the best of his ability and does not view the departures of Sumption and the other judge as wrong.
Neuberger acknowledged the perspective of those recommending foreign judges to leave and recognized the concept of the “boiling frog,” but believes that the evaluation of when the “water becomes too hot” is a personal judgment.