All of Hong Kong’s Overseas Judges Urged to Quit

Two British judges resign over National Security Law

There are calls for all of Hong Kong’s overseas judges to leave the city’s judiciary in the wake of the resignation of two British judges from Hong Kong’s Court of Final Appeal as a message of protest against the growing crackdown on judicial impartiality in the city.

As UK officials added their voices to calls for the foreign members of the bench to step down, China’s Ministry of Foreign Affairs on March 30 in a Xinhua report accused the British government of “maliciously smearing” the national security law, “wilfully vilifying” the city’s rule of law and brazenly interfering in Hong Kong’s affairs.

The departure of Robert Reed and Patrick Hodge, who announced their departure on March 30, will definitely hurt Hong Kong’s judicial independence, a Singaporean lawyer told Asia Sentinel.

“British judges enjoy high esteem of judicial independence, integrity and credibility,” the lawyer said. “The presence of English judges in the Court of Appeal of Hong Kong is added advantage and benefit to the court’s reputation for impartiality. It is this element of impartiality that accounts for the high standing of Hong Kong in the eyes of the international world,” said the Singaporean lawyer who asked not to be named.

On March 30, Jerome Cohen, the founding director emeritus of the US-Asia Law Institute of New York University, tweeted, “The welcome resignation of the two British judges was long overdue. I hope this will stimulate similar resignations by the remaining foreign non-permanent judges.”

Cohen, who is also an adjunct senior fellow for Asian Studies at the US Council on Foreign Relations, said it is “ludicrous” to see those in Beijing and HK who condemn these resignations dress themselves in the robes of defenders of judicial independence. 

“They are correct, however, in asserting that the departure of these foreign judges will have little impact, precisely because the foreign non-permanent judges have played a limited role in the truncated judicial system established under Hong Kong’s National Security Law regime,” Cohen said. “Their presence as ‘window dressing’ has too long misled the world about the grave damage done to the Hong Kong courts by the application of the NSL.”

The Chinese government implemented the draconian legislation in Hong Kong over widespread opposition in the middle of 2020, partly to quell protests which rocked the semi-autonomous territory from the mid-2019 to 2020. It has resulted in the arrest of more than 100 people, the latest on March 31, when police questioned four former senior trade unionists.

“The withdrawal of UK judges in Hong Kong has been an initiative pushed by all sides of politics. It’s a consensus that Hong Kong does not enjoy rule of law. I urge the remaining UK judges to resign as soon as possible,” tweeted Nathan Law, a Hong Kong pro-democracy activist based in the UK, on March 30.

On March 30, UK Supreme Court President Robert Reed and Lord Hodge, who continue to have jurisdiction over what was once the colonial court, resigned, according to a statement by Lord Reed on the same day.

“The judges of the Supreme Court and its predecessor, the Appellate Committee of the House of Lords, have sat on the Hong Kong Court of Final Appeal (HKCFA) for many years…However, since the introduction of the Hong Kong national security law in 2020, this position has become increasingly finely balanced,” said Lord Reed in his statement.

“The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law. Nevertheless, I have concluded, in agreement with the (British) government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the (UK) Supreme Court are deeply committed,” he added.

The resignation of the two judges in Hong Kong came after Paul Harris, a former chairperson of the Hong Kong Bar Association, fled Hong Kong for his native UK on March 1 after he was summoned to a meeting with the National Security Police, according to media reports.

The Hong Kong Bar Association in a statement on March 30 denied the judiciary has been emasculated and appealed to all non-permanent judges to stay in their jobs.

Ten overseas non-permanent judges remain in Hong Kong’s Court of Final Appeal, of whom four said they plan to stay. Three Australians in the Court of Final Appeal – William Gummow, Anthony Murray Gleeson and Robert French, told AFP they have no intention of resigning. Beverly McLachlin, a former Canadian chief justice, told The Globe and Mail she plans to remain on Hong Kong’s Court of Final Appeal.

“What we have seen is two eminent judges deciding that the rule of law in Hong Kong and Hong Kong’s institutions are no longer sufficiently robust for their presence to help guarantee that the rule of law is maintained,” said Evan Fowler, an associate fellow of the Henry Jackson Society, a trans-Atlantic national security and foreign policy think tank. “It is damning, as it suggests not only is there a problem — this has been known for some time — but that the problem is both fundamental and uncorrectable by their presence on the Court.”

“What the resignations show is that for Lord Reed and Lord Hodges, and indeed for the UK government, which has followed developments in Hong Kong very closely, the challenges facing the rule of law in Hong Kong are now too deep and the contradictions in the system too great for the presence of UK judges in Hong Kong to absolve,” Fowler said.

UK Foreign Secretary Liz Truss said in a British government press release on March 30, “The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong’s leading court, and would risk legitimizing oppression. I welcome and wholeheartedly support the decision to withdraw British judges from the court.”

UK Justice Secretary and Deputy Prime Minister Dominic Raab said in the same press release, “Having discussed at length with Foreign Secretary and the President of the Supreme Court, we regretfully agree that it is no longer appropriate for serving UK judges to continue sitting in Hong Kong courts.”

The withdrawal of two British judges from Hong Kong's highest court was “politically motivated,” Hong Kong Chief Executive Carrie Lam Cheng Yuet-ngor said at a press conference on March 31. She accused the British government and politicians of resorting to measures to destroy Hong Kong’s judicial system. Lam said she found Lord Reed's statement – that he and Lord Hodge “cannot continue to sit in Hong Kong without appearing to endorse an administration” - to be “strange.”

Fowler said, “This was a decision both Lord Reed and Lord Hodges made based on their own judgement of the state of the rule of law in Hong Kong, and of what seems clear to be the direction of travel. To suppose that either may have been leant on by politics or by the UK government is to not understand both judicial independence and British legal custom.”

There is nothing to stop Hong Kong from appointing retired UK or Australian judges as non-permanent judges, a law professor told Asia Sentinel. “If no one who is approached agrees, the signal will be strong but still not fatal. A number of Hong Kong judges are known to be independent but when they resign or retire then confidence will collapse.”

In a statement on March 30, the Chief Justice of the Hong Kong Court of Final Appeal, Andrew Cheung Kui-nung, “noted with regret” the resignations of Lord Reed and Lord Hodge, but reiterated the Hong Kong judiciary’s commitment to the rule of law and judicial independence.

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