30 Mar 2022

UK Supreme Court judges resign from Hong Kong’s top court over national security law

Supreme Court president Lord Reed cites administration’s departure from ‘values of political freedom and freedom of expression’

Court of Final Appeal, Hong Kong Shutterstock; Simon Poon

The UK’s two Supreme Court representatives on Hong Kong’s Final Court of Appeal have resigned, citing the Hong Kong administration’s departure from ‘values of political freedom and freedom of expression’ following the imposition of the national security law in 2020.

Supreme Court president Lord Reed issued a statement today revealing that he and his deputy, Lord Hodge, had submitted their resignations  as non-permanent judges of the HCFA with immediate effect.

The two judges had faced pressure to resign from the HCFA ever since the introduction of the national security law in 2020

Condemned by the UK government for breaching the the Joint Declaration agreement struck with China in 1984 ahead of the former colony’s handover, the law allowed the administration and its security apparatus to stamp out the city’s pro democracy movement.

Reed said the decision over whether to remain sitting in the court had become ‘increasingly finely balanced’ since the introduction of the law.

‘The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law,’ he said. ‘Nevertheless, I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed.’

Deputy prime minister, justice secretary and Lord Chancellor Dominic Raab said: “Since 2020 and the introduction of the national security law, our assessment of the situation in Hong Kong is that it has shifted too far from the freedoms that we hold dear – making free expression and honest critique of the state a criminal offence.’

The decision was announced ahead of debate in the UK Parliament on the status of the judges and in the face of cross-party support for their withdrawal from sitting as Hong Kong judges from senior political figures.

The resignations drew an immediate response from the Hong Kong administration. A spokesman told Radio Television Hong Kong: ‘This is clear evidence of external political pressure on judges of an otherwise independent judiciary. This will not be tolerated and will not happen in Hong Kong with the guarantee under Article 85 of the Basic Law which provides that the courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.’

Chief Justice Andrew Cheung, Bar Association chairman Victor Dawes and the president of the Law Society, CM Chan all expressed disappointment at the decision. 

Chan said in a statement: ‘Unfair and unfounded accusations, especially those based on prejudice and political motives, against the judicial system of Hong Kong have no place in the discussion about the rule of law and judicial independence.’

However, the Law Society of England and Wales backed the move. President Stephanie Boyce said: “Judicial independence is paramount and we respect this decision. It is a matter for the UK Supreme Court judges, as well as UK and foreign retired judges to make their own decisions about whether to continue sitting in the HKFCA.

“Lord Reed referenced the adoption of the national security law in 2020 and that the position has been increasingly finely balanced ever since. This is an assessment which we share, and we have previously expressed our own concerns on the adoption and implementation of the national security law in Hong Kong.”

The departure of Lords Reed and Hodge leaves 11 non-permanent international representatives on the court, including former UK law lord Lord Sumption and former Supreme Court presidents Lord Neuberger and Lord Phillips.

A leading Hong Kong-based litigator at an international law firm, who asked to remain anonymous, said: “There is a sense that this has been coming for some time, and that this is a political decision, especially given Raab’s statement.

"While the resignations of the sitting judges are immediate, the market will look to see if any other international judges resign. Law firms have got across this issue. There is no perceptions of interference in the rule of law in commercial disputes. 

“Going forward I expect there will be greater notice of pan-Asian trends in the common law, rather than English law cases. HK may diverge more from English law cases, if appropriate to do so. It may also look to appointing judges, say, from Singapore or Malaysia, rather than the UK.”

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