On Thursday, June 7, two senior British judges announced their resignation from the Court of Final Appeal in Hong Kong, with one of the judges citing an unfavorable “political situation” in Hong Kong. Human rights activists are urging other overseas judges to resign promptly.
Following a Hong Kong judge’s verdict convicting 14 pro-democracy activists of subversion, Lord Lawrence Collins and Lord Jonathan Sumption, non-permanent judges of the Hong Kong Court of Final Appeal, stepped down on Thursday, sparking international attention.
These two former judges of the UK Supreme Court were among the ten overseas judges of the Hong Kong Court of Final Appeal, which is a legacy of British colonial rule. Lord Lawrence Collins, who has been serving as a judge of the Court of Final Appeal since 2012, stated that his resignation was due to the “political situation in Hong Kong”.
“However, I remain confident in the complete independence of the court and its members,” he said in a statement to the media.
Hong Kong Chief Executive Carrie Lam expressed regret over the judges’ resignations, only emphasizing Lord Lawrence Collins’ comment on the remaining judges’ independence, without mentioning that his resignation was due to the political situation.
Prior to their departure, three other prominent foreign judges had resigned. Legal experts and Western governments have warned that Hong Kong’s rule of law is at risk after the implementation of the National Security Law by the Chinese Communist Party (CCP); critics argue that the national security law is being used to suppress dissent. The Hong Kong government denies these allegations.
Benedict Rogers, co-founder and CEO of Hong Kong Watch, welcomed the decision of the two British judges, stating that they should have done so earlier, but better late than never.
He expressed concern that Hong Kong’s rule of law and judicial independence have been increasingly undermined in the past four years since the harsh and suppressive implementation of the National Security Law and the recent enactment of the domestic National Security Law (Article 23), making the situation even worse.
“The presence of foreign judges, which was previously aimed at providing some guarantees of judicial independence, now serves no purpose other than giving legitimacy to a system rapidly losing all credibility and providing legitimacy to a system that has lost all legitimacy,” he said.
Rogers concluded by stating, “I hope that the remaining foreign judges will follow the example of Lord Lawrence Collins and Lord Jonathan Sumption without delay.”
Renowned Hong Kong commentator Pan Dongkai expressed to Epoch Times that the resignations of the two British senior judges from the Hong Kong Court of Final Appeal were not surprising after a landmark case involving the conviction of 14 pro-democracy activists for subversion.
He noted that legal experts and Western governments had long warned that Hong Kong’s rule of law was at risk after the CCP’s implementation of the repressive National Security Law. “It can be said that they should have resigned earlier,” Pan Dongkai said.
Currently, there are eight overseas judges in the Hong Kong Court of Final Appeal, with three from the UK and five from Australia and Canada.
Typically, the panel of judges for appeal cases consists of a Chief Justice, three Hong Kong judges, and one foreign judge.
As non-permanent judges of the Court of Final Appeal, overseas judges receive a salary of up to £40,000.
Since the handover of sovereignty in 1997, the Court of Final Appeal has operated in this manner to uphold the English common law legal system, with Hong Kong continuing this system to enhance its status as a global financial center.
Previously, the international community had more confidence in Hong Kong’s legal system compared to China’s mainland legal system.
In 2019, following the CCP’s crackdown on the massive pro-democracy protests in Hong Kong and the implementation of the National Security Law, Hong Kong’s legal system has been undermined.
Since the pro-democracy protests that shook Hong Kong in 2019 and 2020, the CCP and the Hong Kong government have implemented two national security laws in Hong Kong. The first was enacted by Beijing in 2020, while the second, known as Article 23, was passed in Hong Kong’s pro-Beijing legislature in March this year.
Legal experts, Western governments, and activists argue that these laws have had a detrimental impact on Hong Kong’s rule of law and freedoms, with both laws overriding the rights and freedoms protected by Hong Kong’s Basic Law.
Hundreds of people have been arrested under the 2020 National Security Law, including British citizens and media tycoon Jimmy Lai. In the largest national security trial targeting pro-democracy activists this month, 14 individuals were convicted of conspiracy to subvert state power, a case known as the “Hong Kong 47 trial”.
The judges of the “Hong Kong 47 trial” were handpicked by the pro-Beijing Chief Executive and can conduct trials without a jury, raising concerns about the Hong Kong government no longer following the British common law system that mandates judicial institutions to be independent of the government.
In the past few years, hundreds of people arrested under the National Security Law have been deprived of their legal rights. For example, most of those charged under the National Security Law in Hong Kong have been denied bail, with many held in custody for extended periods. In the trial of the 47 pro-democracy activists in Hong Kong, some defendants had been detained for over two years before the trial began.
After the National Security Law came into effect in 2020, Australian judge James Spigelman resigned from his position as a judge in the Court of Final Appeal, citing his resignation as being “related to the content of the National Security Law”.
In 2022, Lord Robert Reed, President of the UK Supreme Court, and Lord Patrick Hodge, Deputy President of the UK Supreme Court, resigned as non-permanent judges of the Hong Kong Court of Final Appeal. They believed that the threats to civil liberties posed by the National Security Law made it difficult for them to continue in their roles.
Lord Reed stated that the Hong Kong executive had diverged from values of political and speech freedoms, making it challenging for UK Supreme Court judges to continue their involvement in cases without supporting the Hong Kong executive, a position supported by the UK government and the Supreme Court.
Furthermore, Lady Brenda Marjorie Hale, former President of the UK Supreme Court, declined reappointment in mid-2021.
In 2022, when the current British judges resigned from the Hong Kong Court of Final Appeal, Lord Lawrence Collins and Lord Jonathan Sumption believed that continuing to participate in the Court of Final Appeal would be “in the interests of the people of Hong Kong”.
In 2022, when the two British judges resigned from the Hong Kong Court of Final Appeal, then UK Prime Minister Boris Johnson thanked and understood their decision in Parliament, noting their belief that they were constrained by the National Security Law from working in their original capacity. Several Conservative MPs in power supported the resignations, asserting that British judges should not assist in a legal system that detains Hong Kong people without due process.
Then UK Foreign Secretary Liz Truss endorsed the judges’ decision, highlighting the risks of suppression faced by British judges participating in the Hong Kong judicial system. She stated, “We see systematic erosion of democracy and freedom in Hong Kong, with the enforcement of the National Security Law, which curtails freedom of speech, press, and assembly.”
According to BBC reporting, a 43-page legal opinion issued in 2022, signed by several senior legal experts, including former UK Justice Secretary Sir Robert Buckland, warned that Hong Kong’s foreign judges were being used by the Hong Kong government to enhance credibility.
The opinion advised judges that they were working in a legal environment where judicial independence is “completely undermined”, and the Chinese government can determine the outcomes of cases.
Alvin Cheung, former Hong Kong barrister and current law scholar at Queen’s University in Canada, has written extensively on the changes in Hong Kong’s legal system following the National Security Law. Last year, he told the BBC that judges who believed they could mitigate CCP influence were engaging in wishful thinking.
He noted that they could maintain judicial independence because they were essentially not expected to handle controversial cases.