Lord Robert Reed and Lord Patrick Hodge, the UK supreme court docket president and deputy president, have resigned from their roles on Hong Kong’s high court docket. On their departure, they criticised the state of civil liberties and the rule of legislation in Hong Kong following the implementation of the nationwide safety legislation by Chinese language authorities in 2020.
Reed and Hodge usually are not the primary international judges to go away the court docket following the nationwide safety legislation, which the native administration has used to focus on the political opposition and shut down impartial media publications.
James Spigelman, a former Chief Justice in Australia, resigned in September 2020. And Brenda Hale, a retired president of the UK supreme court docket, determined to not renew her time period of workplace in June 2021.
Spigelman and Hale didn’t explicitly cite the nationwide safety legislation of their departures, although each had expressed their issues on different public events. After their departure, the UK supreme court docket reasserted its confidence within the metropolis’s rule of legislation and impartial judiciary.
The newest resignations are notably vital in that they characterize the UK dropping its institutional assist for Hong Kong’s authorized authority.
Overseas judges on Hong Kong’s high court docket
Through the colonial period, the UK privy council had the ability of ultimate adjudication over Hong Kong. In 1984, when Britain and China signed the Joint Declaration on Hong Kong’s sovereignty switch, they established the court docket of ultimate enchantment as Hong Kong’s high court docket, and agreed it might invite judges from different frequent legislation jurisdictions to take a seat on the court docket. In 1997, the 2 jurisdictions agreed that Britain would offer the court docket with two serving legislation lords. Later, judges from different frequent legislation jurisdictions, together with Australia, Canada and New Zealand, additionally joined.
Hong Kong authorities believed that the presence of international judges would improve confidence in judicial independence and increase Hong Kong’s worldwide repute as a world monetary hub.
As Lord David Neuberger, one of many British judges on the court docket, put it in 2017:
Overseas [judges] are the canaries within the mine: as long as they’re comfortable to serve on the HKCFA, then I believe you’ll be able to safely assume that every one is nicely with judicial independence and impartiality in Hong Kong, but when they begin to go away in [droves], that will characterize a critical alarm name.
The alarm rang in July 2020, when the Chinese language authorities imposed Hong Kong’s nationwide safety legislation. The legislation established a “committee for safeguarding nationwide safety”, which is supervised by an envoy from Beijing and isn’t topic to judicial assessment.
The nationwide safety legislation empowers the Hong Kong chief government to handpick judges to deal with associated circumstances. It additionally permits the secretary for justice to take away a jury trial if a nationwide safety case is tried on the stage of the excessive court docket. As of now, no international choose has been picked to listen to a nationwide safety legislation case that has reached the excessive court docket on enchantment.
A condemnation of Hong Kong authorities
The resignation of the 2 British judges marks a dramatic shift within the UK’s place. Their assertion says that remaining on the court docket could be seen as an endorsement of Hong Kong’s departure “from values of political freedom, and freedom of expression”.
Though the court docket dealt with many non-national safety legislation circumstances pretty, international judges have been concerned in Hong Kong’s weaponisation of its courts to crack down on free speech and political participation. One constitutional assessment, endorsed by Lord Reed, led to the imprisonment of a former pro-democracy lawmaker for contempt after he chanted protest slogans within the legislative chamber.
The resignations of lords Reed and Hodge sign to the worldwide neighborhood that international judges in Hong Kong can not do a lot to look at and safeguard human rights within the present system. Below Hong Kong legislation, international judges are barred from attending hearings of the excessive court docket enchantment committee, which decides whether or not go away is granted for enchantment. In brief, international judges can solely hear circumstances filtered by the native judges, who also can give rulings disrespecting fundamental authorized rights.
After the resignation, the Chinese language and Hong Kong authorities, the Hong Kong Bar Affiliation and the Regulation Society of Hong Kong, expressed regrets and suspected attainable “political interference” by UK parliament. Nonetheless, they’ve missed the purpose. Lords Reed and Hodge declared that their determination just isn’t about native courts’ dedication to the rule of legislation, however in regards to the administration’s angle to political and speech freedoms.
The remaining international judges, which incorporates three from Australia and 5 from the UK, have (for now) determined to stay on the court docket, however it ought to be famous that they’re retired from their different judicial roles. The UK supreme court docket’s determination is institutional, and backed by the UK international secretary. It marks the tip of its confidence in Hong Kong’s authorities. Regrettably, the persevering with presence of the remaining international judges just isn’t comparable with the lack of endorsement from the UK.
Hong Kong’s rule of legislation has modified considerably since its handover to China, and town’s high court docket has little room to offer a treatment. The extra the Chinese language and Hong Kong authorities weaponise legal guidelines and courts to attain their political ends, the much less it’s attainable for them to keep up public and world confidence within the metropolis’s rule of legislation and impartial court docket.
Eric Yan-ho Lai doesn’t work for, seek the advice of, personal shares in or obtain funding from any firm or organisation that will profit from this text, and has disclosed no related affiliations past their educational appointment.