Three nonpermanent judges of Hong Kong’s Court of Final Appeal dropped a bombshell recently by announcing their intention to step down in quick succession. Beverley McLachlan, a former chief justice of Canada, announced her decision without making waves, citing age as her reason. Yet both Lord Lawrence Collins and Lord Jonathan Sumption blamed the political situation in Hong Kong for their respective decisions. Sumption went into overdrive to attack Hong Kong’s national security laws and malign Hong Kong’s society as “oppressive” and “totalitarian”.
It is not clear whether the three judges coordinated their resignations beforehand. But they did not come as a surprise, as overseas judges serving on Hong Kong’s top court have been in the line of fire for a long time.
Rabid anti-China critics and die-hard campaigners for the release of Jimmy Lai Chee-ying, a former media mogul charged with conspiring to collude with foreign forces, among other offenses, have been ramping up pressure for overseas judges to step down. Malicious charges of complicity with an “authoritarian” regime have been hurled against them. With the trial of the defendants involved in the “35+” case (a conspiracy to overthrow the local government through seizing a majority of the seats in the Legislative Council) drawing to close, and a verdict on the charges against Lai coming up soon, a fresh round of US sanctions is likely to be in the pipeline. The rising tension must be keenly felt by the judges.
Overseas judges serving on Hong Kong’s top court have, until recently, bravely withstood the mounting pressure. They have rendered a valuable service to Hong Kong, and the contributions they have made to advancing Hong Kong’s rule of law must be gratefully acknowledged. They have written many landmark judgments elucidating the legislative intent of provisions of the Basic Law, protected individual rights, and provided checks on executive power. Their participation contributed to the “convergence, compatibility and complementarity” of the Basic Law with the principles and values of the common law.
Sumptions’ vitriolic parting words are uncalled-for, and a blot on his otherwise laudable career as one of Hong Kong’s venerable overseas judges
Common law is a living institution. The way that common law is practiced in India or Singapore is different from how it is practiced in the United Kingdom, the birthplace of the common law system. As common law branches out to different cultures and societies around the world, it survives and thrives by accommodating the values and the critical contingencies faced by different societies. In the past 26-plus years, overseas judges have done so admirably by applying common law doctrines in interpreting provisions of the Basic Law. They have also upheld minority — especially LGBT — rights, and many judicial review applications against the government. It would be highly regrettable if confidence in Hong Kong’s rule of law is shaken by the departure of overseas judges.
Judges are entitled to their opinions, but Sumption should be reminded of the time-honored words of Sir Matthew Hale, the chief justice of the King’s Bench from 1671 to 1676. In his list of “Things Necessary to be Continually Had in Remembrance”, Sir Matthew reminded himself that “in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked”; “that in business capital, though my nature prompts me to pity, yet to consider that there is also pity due to the country”, and “that I be not biased with compassion to the poor, or favor to the rich in point of justice”.
In his parting diatribe, Sumption let his emotions run away with him. In sharing the sympathies of naive bystanders who side with the seemingly decent “democracy” fighters in the case of “35+”, Sumption turned a blind eye to the criminal intent of the participants in the plot to reject the government’s budget with a view to forcing the resignation of the chief executive and unleashing chaos on Hong Kong. He was dishonest in saying that ordinary laws would have been adequate to quell the months of riots in Hong Kong.
The 2019 riots were an existentialist threat to Hong Kong. As Lord Tom Bingham pointed out in his commentary on Sir Matthew’s exhortation on judicial conduct, “in matters of life and death (“business capital”), the interests of the criminal must be weighed against those of the public and the victim, and violent crimes might require severe penalties”. Sumption had cast these canons of judicial conduct to the winds.
Sumptions’ vitriolic parting words are uncalled-for, and a blot on his otherwise laudable career as one of Hong Kong’s venerable overseas judges. For someone who has worked with Hong Kong through its trials and tribulations in the past five years, his words were the unkindest cut.
It is comforting that other overseas judges disagree. Mr Justice Patrick Keane confirmed that Hong Kong’s judiciary is “still competent and independent”. Lord David Neuberger said he would stay on to support his judicial colleagues and the rule of law in Hong Kong. Neuberger should also be thanked for pointing out in a speech given at the Foreign Correspondents’ Club in August 2014, after the State Council published a white paper on the practice of “one country, two systems” in Hong Kong, that judges are expected to be patriotic. British judges had been referred to as “Her Majesty’s judges” and “lions under the throne”. Hong Kong’s judges, local or overseas, have taken a judicial oath and promised to bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. Sumpiton is entitled to his views, but his acrimonious parting shot is a betrayal of his oath.
Every passing storm showcases the Hong Kong’s judiciary’s resilience. Hong Kong’s courts have indeed remained “competent and independent”. They are sure to go from strength to strength.
The author is convener of the Executive Council and a legislator.
The views do not necessarily reflect those of China Daily.
