Imagine a scenario where a distinguished Australian High Court judge, say former Chief Justice Robert French, presides over a foreign case where the defendant is prosecuted for advocating democratic values and inciting a protest. Adding more flavour to this scenario, the court is under Chinese sovereignty yet nominally follows common law. Such an incongruity exists—foreign judges sit on Hong Kong’s top court.
The Court of Final Appeal (CFA) in Hong Kong has taken a leading role in maintaining independent common law, distinct from China’s party-led monolithic judicial system. Since the handover, Britain, Australia, and Canada have sent judges to sit on the CFA. The Hong Kong government has continually invited these judges, as they are viewed as the “most eminent standing in the entire common law community, with profound judicial experience as well as the highest professional status and reputation,” as current Chief Executive forerunner John Lee espouses. Their presence signals the sustained strength of Hong Kong’s legal system and rule of law.
In 2017 the then-president of the UK Supreme Court, David Neuberger, likened foreign judges to canaries in the coal mine—where if judges had concerns regarding Hong Kong’s judicial independence and rule of law, warning bells would ring and they would leave the CFA.
With the recent resignation of two British judges from the CFA, the question now is whether the warning bells of judicial independence have gone off and if the canaries are indeed dead.
Has the Court of Final Appeal failed in its mission?
While the CFA has the ultimate responsibility of maintaining judicial independence, preventing political interference, and overseeing judicial behaviour, it appears to have failed in its duty to uphold these legal ideals since the 2019-20 protests. As a case in point, trials against political opposition by lower court judges have gone well beyond appropriate judicial behaviour expected of a common law system, such as stating the simple existence of a famous opposition figure equates to an incitement of crime. Yet, the CFA seems to have little appetite in curbing such behaviour or to challenge government efforts in undercutting the rule of law.
Beijing implemented the repressive National Security Law (NSL) over Hong Kong amid widespread opposition, partly to quell the 2019-20 protests. The laws, blatantly incompatible with any understanding of political freedom, upended the city’s legal system. Now, should a NSL case appear before the CFA, foreign judges may not be given a chance to preside, as the law empowers the Chief Executive to handpick judges for this category of cases.
Under the existing system, foreign judges are precluded from the High Court Appeal Committee, which decides whether an appeal is allowed. In essence, foreign judges on the CFA can only hear cases filtered by local judges, who have already perverted basic legal principles, such as the presumption of innocence.
In this light, should Western judges reputable for upholding democratic values, continue to remain on the CFA in this climate? The resignations of Lords Reid and Hodge argue no. Both judges voiced their displeasure to be associated with a government who “departed from values of political freedom and freedom of expression,” and for their departure to be seen as a vote of no-confidence in Hong Kong.
Evan Fowler of Henry Jackson Society, an Anglo-American foreign policy think tank, commented that “the challenges facing the rule of law in Hong Kong are now too deep and the contradictions in the system too great for the presence of UK judges in Hong Kong to absolve.” Jerome Cohen, Chinese law expert and professor at New York University, welcomed the resignations. Cohen notes foreign judges’ presence in Hong Kong acts as “window-dressing” for a system corrupted by the NSL, contradicting the Central and Hong Kong government assertation that the presence highlights continual confidence.
Despite this, the CFA still possesses potential to create precedent-setting positives. The Court with the UK’s Lord Sumption recently struck down an absurd attempt by the prosecution to expand rioting and unlawful assembly charges to persons not present at the scene. This January, the CFA expressed concern for the indefinite detention of national security suspects without trial, albeit acknowledged without actually ruling on the issue.
As it stands, foreign judges still have a role to play in Hong Kong’s flailing judicial system in maintaining and hopefully slowing the erosion of the rule of law. That said, these judges are not simply watchdogs for commercial matters, but an uncorrupted judicial voice in upholding common law values. The more weaponised the Hong Kong courts become, the less it is possible for foreign judges to remain.
Whether the canaries are dead, and resignation is on the table, the decision rests with the individual judge. As long as they believe re-correcting this misguided ship is possible, they should remain onboard. But if the ship has sunk and beyond correction, they should throw in the towel and resign.
Samuel Ng is an undergraduate student at the Queensland University of Technology currently studying Law and International Business. He was also selected as a delegate to the Young Australian in International Affairs 2022 Future Leaders Series and the 2021 Australian Crisis Simulation Summit.