Seven years ago, Lord Neuberger, a judge of the Hong Kong court of final appeal – and formerly president of the UK’s supreme court – described the Chinese region’s foreign judges as “canaries in the mine”. Their willingness to serve was a sign that judicial independence remained healthy, “but if they start to leave in droves, that would represent a serious alarm call”.
That was before the extraordinary uprising in 2019 to defend Hong Kong’s autonomy, and the crackdown that followed. The draconian national security law of 2020 prompted the resignation of an Australian judge, and two British judges quit in 2022. Last week, two more birds flew: Lord Sumption and Lord Collins of Mapesbury. Lord Sumption (with other judges) had said that continued participation was in the interests of the people of Hong Kong. Now he says that those hopes of sustaining the rule of law are “no longer realistic” and that “a [once] vibrant and politically diverse community is slowly becoming a totalitarian state”. He cited illiberal legislation, Beijing’s ability to reverse decisions by Hong Kong courts and an oppressive political environment where judges are urged to demonstrate “patriotism”.
The departures followed the conviction of 14 people for conspiracy to commit subversion in the region’s largest national security trial. Two were acquitted, while 31 others had already pleaded guilty. Among the “Hong Kong 47” are the region’s best-known activists, politicians and scholars, including Joshua Wong, the law professor Benny Tai and the legislators Claudia Mo and Leung Kwok-hung, known as “Long Hair”.
Their crime was peaceful political activism: holding unofficial primaries to select pro-democracy candidates for the portion of seats on the Legislative Council elected by the public. The aim was to elect enough lawmakers to demand progress on universal suffrage and other concessions, in exchange for approving the government budget. The Basic Law, Hong Kong’s mini-constitution, describes universal suffrage as the “ultimate aim”, and says explicitly that LegCo can reject the budget. If it does so twice, the chief executive has to resign.
Three judges, hand-picked by the government, ruled that the plan amounted to “seriously interfering in, disrupting or undermining” the government’s work by “unlawful means” – saying that the latter were not limited to criminal acts. All those convicted – many of whom have been detained for more than three years – now await sentencing and could be jailed for life. Another high-profile national security trial, that of the Hong Kong publisher Jimmy Lai, is still under way.
Hong Kong’s chief executive, John Lee, said that there was “absolutely no truth” to Lord Sumption’s comments, and his government has attacked western criticism of the Hong Kong 47 case as “untruthful, slandering and smearing”. But it is hard to see how foreign judges can now be more than a fig leaf for an unjust system. Hong Kong’s government may be somewhat more concerned that foreign businesses are drawing their own conclusions about the state of rule of law. The real blow to a remarkable city is that so many of its own people now believe they can only thrive elsewhere.
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