There has, understandably, been much coverage of the recent decision by Lords Reed and Hodge to resign as non-permanent judges of Hong Kong’s Court of Final Appeal. They are both currently UK Supreme Court judges. Lord Reed is the president of that court and Lord Hodge is the deputy president.
In late 2020, I wrote about a serious, though futile, attempt in the UK to pressure such resignations at that time (see, “British government’s misguided interference in HK’s CFA appointments”, at: https://www.chinadailyhk.com/article/a/151158). The UK claims, with justification, that one of the cornerstones of its liberal political regime is its independent judiciary. Yet, in late 2020, we witnessed the British executive government applying audacious political pressure on the president of the UK Supreme Court to comply with the government’s Sinophobic, geopolitical wishes. Lord Reed pushed back, at that time, against a clear level of bold political urging by then-foreign secretary Dominic Raab.
I did not expect, less than 18 months later, to discover that Lord Reed would find himself doing just as the British government wished. It would appear that, more recently, he may well have been subject to repeated, stereo political-badgering from the new British foreign secretary, Liz Truss, and Raab, now the justice secretary. Might these shallow, exceptionally ambitious politicians have turned a blind eye (if resignations were not forthcoming) to, for example, specious claims that the integrity of these two judges was compromised by their continuing to serve on the CFA? Raab has some form in this regard. In January last year, he used a public television appearance to make a clumsy but vehement attack on a British Queen’s Counsel to pressure him into withdrawing from a Hong Kong prosecution. Predictably, Truss and Raab swiftly offered their public endorsement of the resignations. Needless to say, the hugely destructive and violent insurrection in 2019-2020, in Hong Kong, was comprehensively air-brushed from this rationalizing statement.
Would Lords Reed and Hodge have moved to resign had they been left to decide this matter entirely on their own in accordance with the claimed independence of the UK judiciary? Judge for yourself. Here is part of what Lord Reed, wrote as he resigned: “The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law.”
Soon after this politically shaped announcement from London, nine other eminent foreign judges from Britain, Australia and Canada firmly confirmed that they were staying on as non-permanent judges on the CFA. In a joint statement, five British judges said they were “entirely satisfied” with the independence and integrity of the CFA. The British Chamber of Commerce in Hong Kong issued a press release confirming its confidence in the HKSAR judiciary in similar terms.
These resignations are, unsurprisingly, getting an animated thumbs-up from leading British China-thumpers. And, they will sell well in Washington for the short-time attention paid to them. Yet, has the UK kicked its own goal? Possibly. Energized by impulse-politics, the UK has certainly burnt another important bridge between London and Hong Kong. This episode can hardly add thrust to the “Global Britain” mantra, which is meant to signal a fresh, post-Brexit, highly engaged place in the world for the UK.
Former chief justice of Hong Kong Andrew Li Kwok-nang wrote, right after this announcement from London: “Times have moved on and circumstances have changed. In the longer term, we have to be prepared that the level of participation of the overseas non-permanent judges may not be the same as before.” He also noted the depth of local talent in both the judiciary and the legal profession.
These acute observations reminded me that I argued as follows in December 2020: “Here we have a far off, former colonial power working to influence its own judiciary in order to better control who should or should not sit on Hong Kong’s highest court, today. There is a piquant colonial whiff in the air. … This also makes one ask, how long should the staffing of the CFA be left subject to shifting British political priorities? … Having distinguished offshore judges serve as non-permanent judges on the CFA has clearly been positive for the HKSAR. One outcome of this bluntly politicized episode, however, is that it has shone an active light on the question of when — and why — offshore CFA judges may, one day, not be required.”
The way that hectoring political pressure looks to have been applied (successfully this time) to pivotal decision making at the highest level within the British judiciary, should give rise to concerns in the UK as to what degree the long-commended independence of that judiciary has been measurably compromised in order to serve the purposes of an overwrought geopolitical agenda. The next time the impulse is felt at Westminster to lecture Hong Kong on judicial independence, it would be wise for itself to look, first, in the mirror.
Interestingly, after this remarkable announcement was made in the UK, HKSAR Chief Executive Carrie Lam Cheng Yuet-ngor was asked if Hong Kong might consider appointing judges from common law jurisdictions other than Britain, Canada and Australia. She replied that this was a matter for the chief justice to consider. Precisely. Let’s hope London was listening. They might learn something about the fundamental nature of judicial independence.
The author is a visiting professor in the Law Faculty of the University of Hong Kong.
The views do not necessarily reflect those of China Daily.