To all Hong Kong law students, read all of your British textbooks on Law 101 with caution — the very country which invented common law has exerted undue pressure on its top judges, the very country which claims to bring rule of law to Hong Kong has delivered severe blows to its own rule of law, with judicial independence, separation of powers seriously eroded — under the guise of “supporting Hong Kong”.
UK Supreme Court President Robert Reed and Vice-President Patrick Hodge announced in a statement on Wednesday their immediate resignations from the Hong Kong Special Administrative Region’s Court of Final Appeal as non-permanent judges. This happened ahead of a UK parliamentary debate on British judges serving in Hong Kong’s highest court. British Foreign Secretary Liz Truss applauded the resignations.
The resignation statement should be read in conjunction with another made on August 27 last year after the National Security Law for Hong Kong had been implemented for more than a year. Reed had said in that statement that the “shared assessment” between him and the UK government was that “the judiciary in Hong Kong continued to act largely independently of the government and their decisions were consistent with the rule of law”. He specifically noted “there also continues to be widespread support among the legal community in Hong Kong for the participation of UK and other overseas judges in the work of the Hong Kong Court of Final Appeal”.
In fact, Hodge came to Hong Kong for the first time to adjudicate a case in November last year.
But, the latest statement by the two non-permanent judges of the HKSAR’s top court represented a U-turn without plausible explanations, and political interference from the UK government and parliament was the only palpable cause. The National Security Law for Hong Kong was cited as the main reason for their resignations, with the unsubstantiated accusation that the HKSAR Government is “departing from the values of political freedom and freedom of expression”.
The resignation statement also noted it was the UK government’s assessment that the two UK judges’ participation in the HKSAR’s Court of Final Appeal “was in the UK’s national interests”. So, when UK national interests have shifted from being friendly to becoming hostile to China, serving UK judges have no choice, but to resign from Hong Kong’s Court of Final Appeal. But, the two judges’ resignations contradict their own categorical assertion that “Hong Kong courts continue to be internationally respected for their commitment to the rule of law”.
This was not the first time the British government has encroached upon judicial independence, the very foundation of the rule of law. In January last year, the UK’s then-Foreign Secretary Dominic Rabb openly attacked David Perry, a respected Queen’s Counsel, for his decision to represent the HKSAR Government in prosecuting Jimmy Lai Chee-ying and other eight suspects for their roles in an illegal assembly, which has nothing to do with the National Security Law for Hong Kong. Under tremendous political pressure, Perry finally withdrew from the case.
Common law has become uncommon and unfamiliar to the world, when politicians blatantly demonstrate their contempt for judicial independence by repeatedly pressuring lawyers and judges to stop performing their normal duties and, thus inflicting great harm on the rule of law. If this were to happen in Hong Kong, the government officials concerned would have been roundly reprimanded as Hong Kong people respect their common law tradition.
We’re pleased to know that Reed has acknowledged again the intactness of Hong Kong’s judicial independence, but couldn’t help questioning whether the principle of “separation of powers” is still treasured in the UK. If the answer is “no”, it’s time for our law school professors to review and reshuffle the list of textbooks for our law students.
The author is founder and chairman of the One Country Two Systems Youth Forum.
The original article was published in China Daily (Apr 2, 2022).