Published: 14:17, June 10, 2024
HK's judicial independence unchanged albeit UK judges quit under external pressure
By Fu Kin-chi

Two British nonpermanent judges of the Hong Kong Court of Final Appeal - Lord Lawrence Collins and Lord Jonathan Sumption - resigned last week, with the former citing the “political situation” in Hong Kong for his decision but expressing his “full confidence” in the independence of Hong Kong’s courts and judges. Chief Executive John Lee Ka-chiu, Secretary for Justice Paul Lam Ting-kwok and Chief Justice Andrew Cheung Kui-nung expressed regret over the resignations.

The independence of the SAR’s judiciary is guaranteed by the Basic Law, and the courts’ ability to conduct independent and fair trials without interference remains unchanged despite the resignations of foreign judges, which was primarily due to political pressure from external forces.

Lord Collins and Lord Sumption were former judges of the United Kingdom’s Supreme Court. According to the Judiciary, Lord Collins was appointed as a nonpermanent judge of the SAR’s top court in 2011, and had also served as a judge of the UK Supreme Court. Lord  Sumption was a judge of the UK Supreme Court until 2018 and joined the HKCFA the following year.

This isn’t the first time British judges have left their positions as nonpermanent foreign judges in the HKCFA due to external political pressure. In 2022, Robert Reed, the president of the UK supreme court, and his colleague Patrick Hodge, resigned from the HKCFA following the implementation of the National Security Law for Hong Kong (NSL), with Reed saying his decision was made “after consultations with the UK government”.  

At the time, Lord Sumption chose to remain in his position. He wrote an article in The Times in 2021, saying that since the implementation of the National Security Law for Hong Kong, there have been calls for British judges to resign, but these demands have nothing to do with judicial independence and the rule of law. Rather, they amount to a call for British judges to engage in a political boycott and exert pressure on Beijing.

The debate in the UK House of Commons on the NSL in 2022 led to the resignation of Lord Reed and Lord Hodge from their positions in the HKCFA, pointing to clear evidence of independent judicial officers being subjected to external political pressure.

Legal professionals in Hong Kong described the repeated calls by British politicians for UK judges to resign from their positions in the HKCFA as a purely political boycott. Now, with more British judges leaving under pressure, it has once again exposed the UK politicians’ malpractice and ugly behavior of interfering with the judiciary for political gain.

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Since Hong Kong’s return to the motherland, “one country, two systems” and the Basic Law have been fully and accurately enforced, with the city’s common law characteristics being maintained, and the rule of law has continued to develop under the framework of “one country, two systems”.

Article 85 of the Basic Law stipulates that the courts of the HKSAR shall exercise judicial power independently, free from any interference. The central government and the SAR attach great importance to judicial independence and will not tolerate or allow any situation that undermines judicial independence.

The World Justice Project’s 2021 Rule of Law Index showed that following the implementation of the NSL in June 2020, Hong Kong ranked 19th out of 139 regions globally and 5th in the Asia-Pacific region – well ahead of many Western countries that claim to respect the rule of law.

Apart from Hong Kong, no other jurisdiction allows foreign judges to participate in trials in its highest court. The establishment of the nonpermanent foreign judges system in the HKCFA reflects Hong Kong’s respect for the rule of law and commitment to the maintenance of its judicial independence, which has been fully recognized by the international community.

Lord Collins, while claiming that his departure was due to Hong Kong’s “political situation”, also emphasized his “fullest confidence” in the independence of the Court of Final Appeal and its judges.

Some current foreign judges have said they’ll continue to serve in Hong Kong, including the most senior British judge, Lord Hoffmann, who is 90 and has served as a nonpermanent judge for 26 years. He has said he intends to come to Hong Kong to hear cases later this year. Justice Patrick Keane of Australia has also indicated he’ll continue to serve as a nonpermanent judge, “supporting the judges of the Court of Final Appeal”.

Facts have proved that the implementation the NSL and the Safeguarding National Security Ordinance has done no harm to Hong Kong’s rule of law, judicial independence, freedom of speech and political freedoms.

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As Lee has pointed out: “Hong Kong has transitioned from chaos to governance, and the human rights and freedoms enjoyed by citizens under the law have not changed at all. The courts’ ability to conduct independent and fair trials without interference has not changed at all. The only difference is that national security has been more effectively safeguarded, Hong Kong’s security and stability have been more effectively safeguarded, and citizens’ ability to live and work in peace has been more effectively safeguarded.”

Current and former nonpermanent judges are all outstanding judges of the highest caliber, who have played a crucial role in upholding judicial justice with dedication and courage.  It’s clear that the two UK nonpermanent judges of the HKCFA had succumbed to external pressures and were forced to quit reluctantly. Their resignations will not affect the Court of Final Appeal’s fulfillment of its judicial functions, or public confidence in judicial independence.


The author is a law professor, director of the Chinese Association of Hong Kong and Macao Studies, and vice-president of the Hong Kong Basic Law Education Association.

The view do not necessarily reflect those of China Daily.