One of the most striking pointers to the standing of Hong Kong as a world city is the presence of foreign judges on its Court of Final Appeal. In addition to the chief justice and the three permanent judges, there are 14 overseas non-permanent judges, who sit in rotation for a few weeks each year. Normally one overseas judge sits on every case.
Two of the overseas judges are serving justices of the UK’s Supreme Court. They sit under a special arrangement agreed with the chief justice of Hong Kong in 1997. The other 12 are retired common law judges who previously served in their own top courts. Eight are British — I am one of them — three Australian and one Canadian.
This model is now under attack. Since the national security law came into force last year, there have been calls for British judges to withdraw. These calls have intensified since the changes to the electoral system introduced by the Chinese National People’s Congress last week. The Labour Party and The Times have joined the hue and cry. The problem about these demands is that they do not distinguish between democracy and the rule of law. Democracy has never existed in Hong Kong, but the rule of law has and still does.
The British never introduced democracy when they had the chance. There was no fully elected legislature until the last two years before the handover to China in 1997. Even then, two thirds of the seats were not directly elected, but reserved for representatives of certain interest groups. The last word always lay with the British governor and the secretary of state in London.
The colony’s courts were independent. But the legislation that they applied was not democratic. It consisted of ordinances made by the governor, orders in council of the UK government, and certain UK statutes. No one regarded this as inconsistent with the rule of law or the participation of British judges.
The constitution of Hong Kong is the Basic Law, which was negotiated between Britain and China in the 1980s. Politically Britain’s bargaining position was weak. It had to quit by 1997 at the end of the lease. Morally, too, Britain was in a difficult place. It could hardly insist on cast-iron guarantees of a democratic future, given its record on the issue. Britain had to concede some critical points. Universal suffrage was simply declared to be the “ultimate aim”, with no detail. Crucially, China’s National People’s Congress was empowered to amend the Basic Law unilaterally, and its standing committee was empowered to give binding interpretations of the Basic Law. These provisions allowed the last word to China just as, before 1997, it lay with Britain.
Our most important legacy to Hong Kong was not democracy but an impressive legal system. The permanent judiciary of Hong Kong is completely committed to judicial independence and the rule of law.
Successive chief justices have made this clear in public statements. These statements are not just lip service. They represent the convictions of experienced, courageous and independent-minded judges. Their professional lives have been passed in upholding traditions that Hong Kong shares with other common law jurisdictions. They deserve to be supported, not abandoned by their overseas colleagues.
The Chinese and Hong Kong governments have so far done nothing to interfere with the independence of the judiciary. Of course, that is not the only consideration. There are countries where the rule of law applies, but the content of the laws is so repellent that no British judge would want to be involved in applying them. But Hong Kong is nowhere near that situation.
The national security law has split opinion in Hong Kong down the middle. But it contains express guarantees of human rights, including freedom of the press and the right of protest. The panels of judges authorised to hear cases under it have been drawn up on a non-contentious basis in consultation with the chief justice.
Naturally these provisions are worthless unless they are respected. But the best guarantee that they will be respected is an independent judiciary. The least that Britain can do now is to avoid undermining it.
Calls for the withdrawal of British judges have nothing to do with judicial independence or the rule of law. In reality they are demands that British judges should participate in a political boycott designed to put pressure on the Chinese government to change its position on democracy.
It is not a proper function of judges to participate in political boycotts. They will serve the cause of justice better by participating in the work of Hong Kong’s courts.
The two overseas judges who sit on the UK Supreme Court are in a special position. They may feel bound to keep themselves and the UK court out of political controversy. But the rest of us do not have that dilemma. As a Hong Kong judge I serve the people of Hong Kong. I must be guided by their interests, and not by the wishes of UK politicians. I intend to continue on the court.
Source: Jonathan Sumption (a former justice of the Supreme Court)
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