On June 6, 2024, two of the United Kingdom’s nonpermanent judges on the Hong Kong Court of Final Appeal (HKCFA) resigned. Lord (Lawrence) Collins had been a member for 13 years, while Lord (Jonathan) Sumption had sat for five years. Although any judge is entitled to resign, the manner of their departures differed greatly.
Although Collins felt concerned over the “political situation”, he had the “fullest confidence” in the HKCFA. Given his lengthy service, he acknowledged the “total independence of its members,” and he was right to have done so.
However, the last thing on Sumption’s mind was a decorous departure. He claimed that Hong Kong was turning into a “totalitarian state” and that the rule of law was in “grave danger”. Although 14 activists had recently been convicted of conspiring to commit subversion by a three-judge panel in the High Court (a further 31 pleaded guilty, while another two were acquitted), Sumption called their convictions “legally indefensible”. He even claimed the convictions, which may or may not be upheld on appeal, were a “major indication of the lengths to which some judges are prepared to go to ensure that Beijing’s campaign against those who have supported democracy succeeds”.
As if this was not scurrilous enough, he then claimed that “many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it”. His erstwhile colleagues, impartial and professional to the core, must have been disgusted, and his remarks would have been beyond the pale in any common law jurisdiction. Apart from anything else, they indicated that he had prejudged the merits of possible appeals upon which he might have been called to adjudicate, and his departure was necessary in a society where justice must always be seen to be done.
As Sumption, whose craving for publicity is notorious, must have intended, his tirade was hailed like manna from heaven in the West’s anti-China circles. For example, Alyssa Fong, the UK-based spokesman for Mark Clifford’s US-based Committee for Freedom in Hong Kong Foundation, called Sumption’s departure “extremely welcome” and called upon the other overseas judges to follow suit. Unsurprisingly, a spokesman for the Hong Kong Special Administrative Region government described his remarks as a “betrayal against Hong Kong judges”, a view undoubtedly felt throughout the judiciary.
Before Sumption joined the UK’s Supreme Court in 2012, he was a hugely successful barrister. He was memorably described as the cleverest man in Britain, with “a brain the size of the planet” and fees to match. He began his career as a history professor at Oxford University and wrote a highly acclaimed five-volume study of the Hundred Years’ War between England and France (1337-1453). It is, therefore, surprising that such a brilliant man should have such flawed judgment, although the paradox is not uncommon.
In 1961, for example, the Conservative Party elder statesman, Robert Gascoyne-Cecil, Marquess of Salisbury, famously told the House of Lords (parliament’s upper house) that the then-colonial secretary, Iain Macleod, with whose Africa policy he disagreed, was “a man of most unusual intellectual brilliance”, but also one who “has been too clever by half”.
Although, like Macleod, Sumption may be brilliant, his judgment is also deficient. Once his fascination with the limelight is fully factored in, nobody should take his pontificating too seriously.
Whereas Collins, having said his piece, quietly moved on with his life, Sumption saw Hong Kong as an easy target for his bile, and he has been putting the boot in ever since.
On Oct 5, 2024, for example, he used a popular British podcast, Law and Disorder, to urge the UK’s remaining overseas judges not to allow themselves to be “used” by a government that was “undermining the rule of law”. He alleged that the “judiciary was too partial to the government in criminal cases”, by which he presumably meant that the judges found the cases they tried meritorious and convicted the suspects accordingly. However, he did not mention that defendants are only ever convicted if their guilt has been proved beyond a reasonable doubt, and that appeals succeed if trial judges err (he disregarded, for example, the successful appeal two months earlier of Apple Daily founder, Jimmy Lai Chee-ying, whose conviction for organizing an unauthorized assembly was quashed by the Court of Appeal because the trial judge had misapprehended the evidence).
On Feb 13, Sumption’s latest book, The Challenges of Democracy and the Rule of Law was published, and a chapter is dedicated to Hong Kong. In analyzing the state of democracy, the promotional blurb said the book includes “the deepening suppression of democracy activism in Hong Kong”. Accordingly, anybody hoping for another hatchet job will be delighted once they dip into the book’s Chapter 5, entitled “Hong Kong: A Modern Tragedy”.
As Sumption must have intended, his text attracted media attention, and he milked it for all it was worth. On Feb 26, for example, when The Free Press’ Frannie Block interviewed him, he said he was “not optimistic” the rule of law would survive in Hong Kong. He declared the Basic Law “confers on the Chinese legislature in Beijing the right to interpret” (true), meaning it could “remake the law in any way they like” (untrue). However, he did not explain why this had not bothered him when he first joined the HKCFA in 2019.
Moreover, Sumption failed to tell Block there had been no interpretations of the Basic Law by the Standing Committee of the National People’s Congress (NPCSC) since 2016, or that there have only been five in almost 28 years (one of which was at the request of the HKCFA). In other words, the Basic Law’s interpretation power has always been used with great restraint, and even when invoked, it was within strictly defined parameters. Why Sumption did not explain this clearly to Block is anybody’s guess, and the impression that he was peddling sensationalism to promote his book is inescapable.
Irrespective of whether this is grandstanding, partisanship or simply being too clever by half, Sumption’s critique will not help anybody hoping to understand the actual situation in Hong Kong. It will also disappoint everybody who appreciates the vibrancy of Hong Kong’s legal system and the resilience of its rule of law
Indeed, the Block interview reflected the stance he developed more fully in Chapter 5. His recurrent theme is that enacting the National Security Law for Hong Kong (NSL) has undermined judicial independence, and judges are forever looking over their shoulders. They have “almost invariably allowed themselves to become the instruments of government policy”, with the judgments of some judges reading “like political speeches”.
Moreover, his former colleagues have “lost sight of the traditional role of the common law of defending the liberty of the subject against the overarching state”, with their NSL judgments being “even more repressive than its language”. If they delivered judgments that undermined Beijing’s campaign to suppress dissent, “every judge” knew they would be reversed through an NPCSC interpretation. In Sumption’s world of make-believe, Beijing’s interpretations rain down on Hong Kong like confetti, and, as with Block, he did not highlight their scarcity.
However, the bulk of criminal cases are decided on their own facts, and, since 1997, no criminal case has attracted an interpretation under the Basic Law. Although there was one interpretation under the NSL on the issue of overseas lawyers conducting national security cases, this was exceptional and clarified an issue that had been left unresolved by the Hong Kong courts. If not addressed, it could have had profound national security implications, which Sumption disregarded.
Sumption was also on very thin ice when he regurgitated the claims of the former governor, Chris Patten, that the NSL was unnecessary to combat the insurrection of 2019-20. He considered the existing laws “perfectly adequate”, a view not shared by anybody who lived through the turmoil, and certainly not by law enforcers. There were previously no effective means of combatting subversion, collusion with foreign powers, secession or terrorism, and the NSL plugged a gaping hole in the city’s defensive network. However, Sumption has at least acknowledged that most of the NSL’s offenses “have their equivalents in the legislation of other countries, including many liberal democracies”.
That said, Sumption, like Patten, viewed the NSL not as a godsend that saved Hong Kong’s “one country, two systems” governing policy but as a means of suppressing “political opposition of any kind”. Although Hong Kong now enjoys far greater democracy than it did in the British era, when the governor was appointed by the UK and, apart from a short time at the end, the Legislative Council was appointed by the governor, this is skated over in Chapter 5.
If it had not been for anti-China elements in the Legislative Council, who vetoed the proposal, the chief executive could have been elected by universal suffrage in 2017, which would have paved the way for the greater democratization of the Legislative Council (half of whose members by that time were already directly elected, democratic progress deserving of Sumption’s praise). If fanatics who claimed to support more democracy had not thrown a spanner in the works by supporting street violence, paralyzing the Legislative Council and urging foreign intervention, the democratization process could have continued apace, and it beggars belief that Sumption has not factored this into his analysis of the political situation.
Even now, the Basic Law provides that universal suffrage is the “ultimate aim” for the election of both the chief executive and the Legislative Council, and it is remarkable that in a book about democracy, this is not suitably acknowledged. Although Sumption’s analysis often reflects Patten’s, he did at least recognize that Patten’s democratic reforms sought to “present China with a fait accompli” and that he “achieved nothing”.
However, he completely misread the situation when he concluded that the “power of designation (of NSL judges) and the vesting of a right of interpretation in the Standing Committee suggest a measure of distrust in the judiciary on the part of Beijing”.
They suggested no such thing — quite the contrary. The designation of judges by the chief executive to handle NSL cases ensures that only the very best judges are entrusted with cases that may affect the survival of the nation. This is not only understandable but also comforting to anybody with the country’s best interests at heart.
Although the NSL can also be interpreted by the NPCSC, this has only happened once in almost five years, and it occurred at Hong Kong’s request. A helpful interpretation was issued, and everybody now knows where they stand on the issue of admitting overseas lawyers in NSL cases. As with the Basic Law’s interpretation power, the NSL’s power has been exercised with commendable restraint by Beijing, and, in practice, legal questions arising in criminal cases have been resolved by the presiding judges.
It would have been nice if Sumption, instead of firing cheap shots at judges who cannot answer back, had tried a bit harder to place the issues that he says concern him in their true context.
However, aping Patten, Sumption pointed to the various prosecutions of Lai, and claimed they showed he was “in Beijing’s sights”. Strangely for a former jurist, it did not appear to have occurred to him that Lai was charged with several offenses because constitutionally independent prosecutors felt there were reasonable prospects of conviction on the available evidence (a view borne out by the trial outcomes). In Hong Kong, nobody is above the law, and, on reflection, Sumption may agree that Lai should not, despite his wealth and influence, have received any special treatment.
Although Chapter 5 is nicely written and well researched, its conclusions are flawed. It appears the issues have been prejudged, with the “evidence” having been expertly tailored to sustain doomsday scenarios. Irrespective of whether this is grandstanding, partisanship or simply being too clever by half, Sumption’s critique will not help anybody hoping to understand the actual situation in Hong Kong. It will also disappoint everybody who appreciates the vibrancy of Hong Kong’s legal system and the resilience of its rule of law.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
