Published: 00:52, March 23, 2021 | Updated: 21:49, June 4, 2023
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Judicial independence: CFA judges show their mettle and reject political pressure
By Grenville Cross

On December 18, 2019, the British judge, Lord (Jonathan) Sumption joined the Hong Kong Court of Final Appeal (CFA), as a non-permanent judge. Although not everybody appreciated it at the time, this was a great feather in the Judiciary’s cap. In the United Kingdom, his reputation in legal circles is second to none, and he has also made his mark in other areas.

In 2012, Sumption became the first lawyer to be appointed a Justice of the UK Supreme Court without first having served as a full-time judge. Having enjoyed a hugely successful practice as a barrister, he immediately made his mark on the Supreme Court. While in practice, he sometimes came to Hong Kong to conduct cases in the CFA, and, with his appointment, the wheel turned full circle.

Sumption, who reportedly speaks French and Italian fluently, reads Spanish, Dutch, Portuguese, Latin and Greek, and is brushing up on his German, is also a noted historian. Having studied medieval history at Oxford University, he has, in his spare time, written a highly acclaimed, multi-volume history of the Hundred Years’ War, between England and France. He has often been described as the cleverest man in Britain, and the political journalist Alastair Campbell says he has a “brain the size of a planet”.

This, therefore, is not a man to be trifled with, as those who have been calling for the British judges to quit the CFA have now discovered. Taking its cue from the British Foreign Secretary, Dominic Raab, who announced in November that, after the enactment of the National Security Law for Hong Kong, he was reviewing the appropriateness of British judges remaining in the CFA, The Times (March 15) called on the ten British judges in the CFA, in light of recent developments, to “adopt a common position and resign together”. Whereas two of those judges, Lord (Robert) Reed, the President of the Supreme Court, and his deputy, Lord (Patrick) Hodge, are serving judges in the UK, the other eight are all retired, and, as free agents, less amenable to political pressure.

In a blistering riposte to The Times (March 18), and, by necessary implication, to Raab, Sumption made clear that “it is not a proper function of judges to participate in political boycotts”. He explained that, in colonial times, there was never full democracy in Hong Kong, but that there was then, as now, an independent judiciary. Notwithstanding the democratic deficit of the British era, “no one regarded this as inconsistent with the rule of law or the participation of British judges”, and there was no basis for a different approach now. 

Sumption noted that the latest calls for the withdrawal of British judges had nothing to do with judicial independence or the rule of law, but were intended “to pressure Beijing to change its position on democracy”, which was unacceptable. As regards the National Security Law, he quite correctly pointed out that it contains “guarantees of human rights”, a reference to Art.4, which incorporates into it the International Covenant on Civil and Political Rights, such being an inconvenient truth which Raab and his fellow troglodytes have consistently disregarded.  

Sumption also explained that the foreign judges “will serve the cause of justice better by participating in the work of Hong Kong’s courts”. He emphasized that, “as a Hong Kong judge, I serve Hong Kong people”, and that “I must be guided by their interests, and not by the wishes of UK politicians”. He made clear he is not a quitter, and Raab would be unwise to underestimate his commitment, or that of his fellow judges, to resisting political pressure and to using their seats in the CFA to maintain justice in the city.

Indeed, on February 25, in another emphatic move, it was announced that two other British judges, Lords (David) Neuberger and (Robert) Walker were taking up three-year extensions to their existing CFA terms of office, as also was Justice Murray Gleeson, the former Chief Justice of Australia. In addition, after the enactment of the National Security Law on June 30, 2020, other CFA judges also courageously resisted political pressure to resign, including the former Chief Justice of Canada, Beverley McLachlin, who explained that the CFA is “independent”, provides a “very high level of judging”, and ensures the law is “very vigorously applied”. From Australia, a former Chief Justice, Robert French, also announced he would be staying, because of his admiration for the CFA judges’ “commitment in maintaining its judicial independence”. Although this was immensely reassuring for everyone who believes in upholding the city’s rule of law, it grated with those who do not wish Hong Kong well.

What, moreover, is often overlooked is the extent to which hard-line anti-China elements in the UK have long had the CFA in their sights. They know full well that if they can weaken the Judiciary, this will play to their narrative about the rule of law being on its last legs, with criminal suspects being denied fair trials. Indeed, on November 6, 2019, long before the National Security Law appeared on the horizon, the veteran China basher, Tom Tugendhat, who chairs the UK House of Commons Foreign Affairs Committee, claimed that the presence of British judges in the CFA gave the appearance of complicity “in a system that is undermining the rule of law”. Although this was a despicable slur on as fine a body of jurists as can be imagined, Raab did nothing to set the record straight, as he could so easily have done by touching base with the President of the Supreme Court, who would have explained things. This should surprise nobody, as he has consistently pandered to such sentiments, and has sought repeatedly to harm Hong Kong’s legal arrangements. 

Sumption also explained that the foreign judges “will serve the cause of justice better by participating in the work of Hong Kong’s courts”. He emphasized that, “as a Hong Kong judge, I serve Hong Kong people”, and that “I must be guided by their interests, and not by the wishes of UK politicians”

After the enactment of the National Security Law on June 30, Raab extended the China arms embargo to Hong Kong, in an attempt to deny the police force essential crowd control equipment, and even suspended Britain’s extradition treaty with Hong Kong. In consequence, criminal fugitives of whatever hue, be they killers, kidnappers or child molesters, can now escape justice in Hong Kong by turning up in the UK, and claiming safe haven. While shameful, this illustrates perfectly the types of situations that can arise when crude politicking takes precedence over the principles of international criminal justice.

This, regrettably, was not all. In another notorious episode, on January 16, Raab appeared on national television to condemn the eminent British barrister, David Perry QC, who had been briefed to prosecute a trial in Hong Kong the following month. He said he could not understand how Perry, in “good conscience”, could agree to prosecute a case “when they will have to apply the national security legislation at the behest of Beijing”, describing him as “pretty mercenary”. The problem with this, however, was that the case Perry had been briefed to prosecute concerned an unauthorized march, and had nothing to do with national security. If nothing else, therefore, this nasty episode has highlighted how, in his eagerness to put the boot into Hong Kong, Raab could not even be bothered to check the basic facts.

Although, following the stands taken by Sumption, Neuberger and Walker, it will now be obvious to Raab that he cannot intimidate the retired British judges on the CFA, he will likely concentrate his efforts on the two serving judges, Lords Reed and Hodge, over whom he may have greater leverage. On March 17, when interviewed by the House of Lords’ constitutional committee, Reed said he was in regular contact with Raab, and was monitoring the situation in Hong Kong. He acknowledged, moreover, that the presence of British judges on the CFA was “a matter to the UK’s foreign policy, and it’s also a matter to the Supreme Court”.

While recognizing that, if circumstances ever arose which made the presence of Supreme Court judges in the CFA intolerable, such as any “undermining of the independence of the Hong Kong judiciary”, he would “no longer be prepared to serve, or nominate other judges”, Reed implied that situation had not yet arrived. Indeed, he emphasized that his focus was very much on the role of the British judges in supporting the “independent judiciary in Hong Kong, and upholding the rule of law there”. He also noted the wide support that exists in legal and political circles in Hong Kong for British judges to remain involved in the CFA, adding “I feel we have a responsibility to the people of Hong Kong”.

In other words, Reed, while recognizing that policy decisions are for Raab, was aware of the ongoing need to support the Judiciary in Hong Kong, and of contributing to a legal system which its people trust. Like Sumption, Reed is obviously no pushover, and, fortunately, he appreciates the vital role the CFA plays in upholding one of the finest legal systems in the Asia-Pacific region. If, therefore, Raab imagines that he can intimidate Reed in the way he did Perry, he may be in for a big surprise. 

Although the phrase “judicial independence” is bandied about ad nauseam these days, what it means, apart from deciding cases on their merits and without interference, is that judges like Reed and Sumption must not be subjected to political pressure over their role as judges. They enjoy security of tenure, and they must, subject to need, be allowed to continue serving for as long as they are able to discharge their judicial functions and honor their oaths of office. As Sumption explained, the central and local governments “have so far done nothing to interfere with the independence of the judiciary”, and there is absolutely no reason why any of them should resign. If, however, Raab were to attempt to “do a Perry” on any of them, they must tell him, in unequivocal terms, to “get lost”.  

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.