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Thursday, Jun 17, 2021

UK judges’ future on Hong Kong’s top court cast into doubt

Britain’s top judge voiced concerns over Beijing’s new national security law in Hong Kong and said the UK will ‘continue to assess the position in Hong Kong’. ‘Losing our foreign judges on the CFA in this way would lead to a crisis of confidence in our judicial system,’ warns one law professor

Britain’s top judge has voiced concerns over Beijing’s new national security law in Hong Kong, saying that while British judges continue to serve in the city’s top court, the UK will “continue to assess the position in Hong Kong”.

Robert Reed, president of the UK Supreme Court, also shed light on the risk that Hong Kong may not have a British judge serving on the Hong Kong Court of Final Appeal (CFA) in the future.

“The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen,” Reed said in a subtle but firm statement on Friday.

“Whether judges of the [UK] Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law,” Reed said, adding that his court “will continue to assess the position in Hong Kong as it develops, in discussion with the UK government”.

His high-profile intervention laid bare concerns within the British judicial circle over the implication of Beijing’s move on Hong Kong’s rule of law, which has for decades underlined the city’s success and shored up business confidence.

Simon Young, a law professor at the University of Hong Kong, feared that if Britain stopped sending judges over, retired British judges would follow suit along with their colleagues from other common law jurisdictions.

“Losing our foreign judges on the CFA in this way would lead to a crisis of confidence in our judicial system,” he said. “Though we may try to explain the system and principles remain unchanged, the exit made by such distinguished jurists would be thunderous and heard around the world.”

Referring to Reed’s measured statement, Young said the British top judge was “not saying the practice will end but only that it is being reviewed in light of the development of the national security law in Hong Kong”.

Under current arrangements, two serving Law Lords are provided by UK Supreme Court to sit on Hong Kong’s top court.

Other common law jurisdictions have also been sending high-ranking judges to Hong Kong’s top court after the city’s 1997 handover.

“The [UK] Supreme Court supports the judges of Hong Kong in their commitment to safeguard judicial independence and the rule of law,” Reed said.

“Undoubtedly, the judges of the [Hong Kong] Court of Final Appeal will do their utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that ‘the Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference’.”

The British top judge made reference to pledges made by Hong Kong’s current chief justice, Geoffrey Ma Tao-li, who said that “it remains the mission and the constitutional duty of the Hong Kong judiciary to maintain and protect” judicial independence and the rule of law after the national security law came into effect.

Ma in recent years sought to diversify the sources of overseas judges. Canada’s former chief justice, Beverley McLachlin, became the first hire from Ottawa in 2018, but she is currently facing calls from Canadian politicians to step down from her Hong Kong role.

The national security law – which targets secession, subversion, terrorism, and collusion with foreign forces – is derided by critics as a curb on political plurality. Beijing, on the other hand, said the new law ensured Hong Kong’s stability.

Several British lawmakers have called on Foreign Secretary Dominic Raab to reconsider the arrangements to send their judges to Hong Kong.

They said their judges should not handle cases using laws passed down directly by Beijing, without going through local legislative processes in Hong Kong. They also feared British judges playing a role in limiting Hong Kong’s political freedom.

“Chief Justice Ma has been clear in defending the independence of the judiciary but there are many who will question whether the judge’s hopes can still be justified,” said Tom Tugendhat, chair of the Parliament’s foreign affairs committee.

“The rule of law underpins the success of Hong Kong. Civil rights and commercial rights are intimately linked and the new law calls both into question.”

Benedict Rogers, chairman of the London-based Hong Kong Watch group, called Reed’s statement a “welcome intervention”.

“Having UK judges sitting in Hong Kong is a reassurance – but not if their independence is compromised or if they are simply misused for propaganda purposes or window dressing,” he said on Twitter.

The top court of Hong Kong has repeatedly ruled against the government and in favour of greater human rights protection for dissidents. In 2018, Joshua Wong Chi-fung and two other student activists won a final appeal, with the government defeated on its hope to keep them in jail.

Reed is currently the only judge who serves on both top courts. The other British judge serving in the Hong Kong court, Brenda Hale, retired from the UK Supreme Court presidency earlier this year. Foreign judges rotate to spend time in Hong Kong.
“No serving UK judge has been scheduled to sit in Hong Kong this year,” Reed added.

Foreign judges have constantly been a target of pro-Beijing lawmakers in Hong Kong, most recently with calls for them to be excluded from handling cases related to national security.

Ma personally rebutted those suggestions, saying that judges of foreign nationality should not be excluded, adding that their presence was expressly stated in the Basic Law and their contribution “repeatedly acknowledged by the chief executive”.

The government has generally stood by the judiciary, which has insisted the need for common law judges from overseas jurisdictions to continue sitting on the top court as “non-permanent judges”.

At least one non-permanent judge sits on every final appeal case heard in the court, according to the Hong Kong Court of Final Appeal Ordinance.

Fifteen overseas judges and four local ones currently make up the pool of non-permanent judges.


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