The UK government has announced that its judges will no longer sit on Hong Kong’s top court over opposition to China’s national security law, with two Supreme Court judges resigning immediately.
“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 legitimising oppression,” Foreign Secretary Liz Truss said on Wednesday.
“We have seen a systematic erosion of liberty and democracy in Hong Kong,” she said, noting the authorities had “cracked down on free speech, the free press and free association” since the security law was imposed in 2020.
Truss said she had reached the decision to withdraw the judges from the Hong Kong Court of Final Appeal following consultations with the UK Supreme Court and ministers responsible for the judiciary.
The UK Supreme Court said its two judges currently sitting on the Hong Kong court in two of 12 overseas non-permanent positions had resigned with immediate effect.
‘Departed from values’
“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,” its president Robert Reed said in a statement.
Reed said he and fellow judge Patrick Hodge have submitted their resignations with immediate effect.
Under the Basic Law – Hong Kong’s mini-constitution – senior judges from common law jurisdictions are able to sit as non-permanent members of the Court of Final Appeal.
There are currently 12 overseas non-permanent judges sitting on the court, and eight of them are British.
Critics have said the presence of foreign judges on the bench lends the territory’s legal system a sense of legitimacy despite the enormous changes that have taken place since the security law was imposed.
Canada’s Beverley McLachlin, a former chief justice who serves in a private role, rejected the criticisms and said she will remain on highest court despite UK judges’ withdrawal.
“The court is operating as an independent, judicial branch of government – perhaps the last surviving strong institution of democracy,” she told the Globe and Mail. “And it’s there for people to give them fair hearings and independent justice from the courts.”
Australian judge Robert French told the Sydney Morning Herald he also intends to remain. He told the paper that he believed the Chief Justice and judges on the CFA were “committed to maintaining the independence of the judiciary”.
It remains unclear what the six remaining British judges will do.
So far the foreign judges have not been called on to hear national security cases, but Chief Justice Andrew Cheung has suggested that they might have to.
Alvin Cheung, a postdoctoral fellow at McGill University and an expert on the abuse of legal norms and institutions by authoritarian regimes, said the remaining overseas judges should follow the lead of the resigning British judges.
“The continued presence of overseas (judges) is of clear reputational benefit to the HK government and the HK government knows it,” he wrote on Twitter. “This reputational benefit far outweighs the potential for overseas (judges) to act as any sort of meaningful restraint.”
The UK handed Hong Kong back to China in 1997 with Beijing promising to respect the territory’s rights and freedoms for at least 50 years under the framework of ‘one country, two systems’.