The sudden resignations of Jonathan Sumption and Lawrence Collins from the Hong Kong Court of Final Appeal (HKCFA) have raised a storm of controversy in Hong Kong. The unexpected aftershock came when Sumption fiercely attacked the legal system of Hong Kong in an op-ed piece in the Financial Times. 

He alleged that local judges had to operate in an “impossible political environment created by China”, “many local judges have lost sight of their traditional right as defenders of the liberty of the subject”, and that “there are continual calls for judicial patriotism, it requires unusual courage for local judges to swim against such a strong political tide”.

Sumption’s attack on Hong Kong’s judicial system is outrageous and has, unsurprisingly, triggered strong responses from the Hong Kong Special Administrative Region government as well as the local legal community. The government issued a strongly worded rebuttal defending the city’s rule of law. Both Chief Justice Andrew Cheung Kui-nung and former chief justice Andrew Li Kwok-nang expressed confidence in the courts to continue to operate with professionalism and integrity, striking a balance between national security and rights. The Hong Kong Bar Association said in a statement that it has every confidence in Hong Kong’s judiciary.

Mr Justice Patrick Keane, one of the eight overseas nonpermanent judges still sitting on the HKCFA, also expressed his confidence in the city’s legal system, saying that the Hong Kong judiciary remains “competent and independent”.

In response to Sumptions’ criticism of the High Court verdict on the “35+ primary elections” case, he said in an interview that Sumption “is entitled to his views, but there are appeals that are available, the view that was taken by the court may or may not be vindicated”. Keane added that “one should not condemn the system for failing to make the right call before the system has been allowed to work”.

The points presented by Keane should be the focus of public attention. Many people might have paid too much attention to Sumption’s comments on the “35+ primary elections” case. Psychologists use the term “attentional bias” to describe such problematic behavior. Sumption’s prestige in the common law system might have aggravated such bias. As Chief Justice Cheung has correctly pointed out, opinions voiced publicly could amount to pressure on or interference with the courts’ administration of justice.

According to Australian law professor Chris Finn, the rule against prejudgment should be extended to prohibit extrajudicial statements on matters of law, as well as those of fact or evidence at issue in a particular matter (Extrajudicial Speech and the Prejudgment Rule: A Reply to Bartie and Gava, in Adelaide Law Review (2014)).

Since judges are increasingly willing to comment on, and express opinions about, hot legal issues that are likely to be further argued in court, Australian legal professionals Susan Bartie and John Gava warn against the possibility of a perception of judgment. They argue that “ordinary human experience” indicates that a position so clearly and publicly expressed will be difficult for a judicial officer to put to one side when the same legal issue subsequently falls to be determined in the courtroom (Some Problems With Extrajudicial Writing, in Sydney Law Review (2012)).

Moreover, it does not make ethical sense for a judge to seek publicity in newspapers and social media. According to the late British judge Sir Tom Bingham, a judge should not court publicity or seek public acclaim or newspaper headlines. There is much force in the old aphorism that the best judge is he whose name is unknown to average readers of the Daily Mail (T. Bingham, The Business of Judging (Oxford: OUP, 2000)). It is a pity that Sumption simply alleged that fundamental rights in Hong Kong had been compromised because of the implementation of national security laws without taking into consideration the context.

Another issue of concern is the suspicious circumstances surrounding the sudden resignation of Sumption and the publication of his controversial article in the Financial Times. First, out of geopolitical considerations, the United Kingdom made a decoupling move by pulling Supreme Court President Robert Reed and Vice-President Patrick Hodge from the HKCFA in 2022, citing the implementation of the National Security Law for Hong Kong (NSL). Second, Sumption’s criticism contradicted his previous stance and statements: In 2021, he said the rule of law should not be confused with democracy and noted that the NSL has built-in human rights protections when he made clear he would not bow to demands by British politicians for British judges to resign from the HKCFA.

Third, Collins said that his resignation was due to the city’s “political situation”. But he emphasized that he still has the “fullest confidence” in the HKCFA and the independence of its members. The UK government and politicians’ relentless effort to put pressure on British judges, Sumption’s contradictory statements, and Collins’ statements have provided the context for readers to examine whether Sumption’s ferocious attack on Hong Kong’s legal system carries an agenda to defame Hong Kong.

In response to Sumption’s allegation that “there are continual calls for judicial patriotism”, we want to remind our readers that Lord David Neuberger, who is also an overseas judge of the HKCFA, made a speech on this issue in August 2014. He said patriotism was inherent in the oath of allegiance taken by judges in both the UK and Hong Kong and was not inconsistent with judicial independence (Joseph Fok, Demonstrating Judicial Independence in Increasingly Politicised Times, the Commonwealth Law Conference in 2017). Neuberger has pledged to remain with the HKCFA.

To conclude, Sumption’s unfair criticism of Hong Kong’s legal system, with a special reference to the “35+ primary elections” case, should activate the watchful concern of legal practitioners in the city. It is totally improper for him to comment on hot legal issues that are likely to be an appeal point in future. He tends to look at the NSL and Hong Kong’s political system through a distorted lens. His allegation of political constraints imposed on local judges deserves the closest scrutiny and the most robust response from the Hong Kong legal community. Finally, we hope more talented and experienced jurists from other common law jurisdictions will join the HKCFA.

Yin Zihan is a co-leader of the Rainbow Pair mentorship program, launched and administered by Chinese Dream Think Tank, and a Postgraduate Certificate in Laws student at the University of Hong Kong. 

Kacee Ting Wong is a barrister, a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank, and a district councilor.

The views do not necessarily reflect those of China Daily.