On June 6, two of the United Kingdom’s nonpermanent judges on the Hong Kong Court of Final Appeal (HKCFA) unexpectedly resigned. Lord (Lawrence) Collins had been a member for 13 years, while Lord (Jonathan) Sumption had sat for only five years.
Although Collins cited his concern over the “political situation”, he was respectful of the Hong Kong Judiciary. He expressed his “fullest confidence” in the HKCFA, and in the “total independence of its members”.
However, Sumption, a renowned grandstander, noisily denounced all and sundry. Abandoning judicial decorum, he held forth like a political bruiser. Even his former colleagues were not spared, which they must have bitterly resented.
Sumption told the media that Hong Kong was “slowly becoming a totalitarian state”, and that its judges were being compromised by an “impossible political environment created by Beijing”. Whereas the city’s rule of law had been “profoundly compromised”, it was now in “grave danger”.
Although 14 activists had recently been convicted of conspiring to commit subversion by a three-judge panel in the Court of First Instance (a further 31 had already pleaded guilty), Sumption called their convictions “legally indefensible” and the “last straw”. He seemed not to have grasped the crux of the prosecution’s case, which was that the conspirators were not engaged in traditional democratic activity, but had planned to create constitutional chaos, endanger the “one country, two systems” policy, and provoke a confrontation with Beijing. He even claimed the convictions 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”.
Although this was a vile slur on his former colleagues, worse was to come. Sumption declared that “many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it”. In other words, many judges were unfit to serve.
If these were really his views, Sumption was manifestly unsuited for further service in the HKCFA. He could not have adjudicated objectively upon any appeals arising from the verdicts (and those in related cases), and it is best that he has gone. Judges hearing appeals are, according to their oath of office, expected to “administer justice without fear or favor, self-interest or deceit”, and impartiality is essential. Sumption had clearly pre-judged the issues, and he will not be missed.
It was little wonder that the Hong Kong Special Administrative Region government branded Sumption’s remarks as a “betrayal against Hong Kong’s judges”. The chief executive, John Lee Ka-chiu, noted that there were some individuals in Britain who wanted to weaponize the UK’s judicial influence to target China and the HKSAR, and he certainly had a point.
However, although some people speculated that Sumption was trying to sabotage the Judiciary from within, there was no evidence that he was a foreign plant or had been turned, and hopefully none will emerge.
In any event, Sumption’s antics have shed light on why the Chinese central authorities deemed it necessary for there to be a legislative provision that requires the chief executive, after consultation with the chief justice, to designate judges to handle cases concerning the offense of endangering national security. Although, perhaps surprisingly, there is no bar on overseas judges handling such cases, every effort must be made to ensure that jurists with perspectives like Sumption’s never come anywhere near cases that may involve China’s very survival.
As Sumption must have expected, his remarks were treated like manna from heaven by the anti-China forces. They have been trying for years to undermine the HKSAR’s legal system, knowing it would harm China, and they saw Sumption as a godsend.
For example, the US-based Committee for Freedom in Hong Kong Foundation, run by Mark Clifford (the zealot who once worked for the national security suspect and former media magnate Jimmy Lai Chee-ying, whose cause he champions), was over the moon. Its UK-based spokesperson, Alyssa Fong, described Sumption’s departure as “extremely welcome”, and called for the HKCFA’s remaining overseas nonpermanent judges to also resign.
If Sumption had imagined he was bigger than Hong Kong and its Judiciary, the Index has cut him down to size. Judges normally appreciate the importance of ascertaining the truth from the evidence, and he is hopefully no exception. Even if he does not recant, the Index should at least give him pause for thought and open the eyes of his henchmen
Having vented his spleen, Sumption might have been expected to get on with his life in the UK, but not a bit of it. He has continued to malign Hong Kong, undoubtedly relishing the publicity. Although he is entering a crowded market, dominated by the former governor, Lord (Chris) Patten, the co-chairman of the Inter-Parliamentary Alliance on China (IPAC), Sir Iain Duncan Smith, and the former security minister, Tom Tugendhat, he is honing his skills, and Patten will undoubtedly give him some tips. He eagerly accepts invitations to put the boot in on China, even if it means rubbing shoulders with assorted bigots and fantasists.
On Oct 5, for example, Sumption joined a Beijing-hostile podcast, Law and Disorder. It was hosted by Baroness (Helena) Kennedy, patron of Hong Kong Watch, the anti-China propaganda outfit, and Lord (Charles) Falconer, the former justice secretary who, in 2021, told the UK’s nonpermanent judges that they should not let themselves be used by a government that was “undermining the rule of law”. When Sumption said he had resigned because the “Judiciary was too partial to the government in criminal cases”, his hosts were ecstatic.
However, if Sumption and his newfound friends imagined his inflammatory tirades would blacken Hong Kong’s global reputation, they could not have been more mistaken.
On Oct 23, the 2024 World Justice Project Rule of Law Index (the Index) was published, and Hong Kong was ranked 23rd out of the 142 jurisdictions surveyed (the same as in 2023). This was no mean feat, given the calumnies its legal system has faced over the last year.
Indeed, Hong Kong was rated more highly than many Western countries, including the United States (26th), Portugal (28th), Malta (30th), Italy (32nd) and Greece (47th).
Within the individual performance categories, Hong Kong did even better. Whereas it was ranked 21st for “criminal justice”, it came in at 9th for “order and security”, and 6th for “criminal investigation system”. These ratings will reassure anybody who might have been tempted to take Sumption’s commentary seriously.
Moreover, in the East Asia and Pacific region, Hong Kong was ranked 6th out of the 15 places surveyed (unchanged since 2023).
The WJP was founded in 2006 as a presidential initiative of the American Bar Association, and became an independent, nonprofit organization in 2009.
The Index is now the world’s leading source of original, independent rule of law data. It provides data on eight aspects of the rule of law: limited government powers; absence of corruption; order and security; fundamental rights; open government; regulatory enforcement; civil justice; and criminal justice. It describes accountability, just laws, governmental transparency and accessible and impartial justice as the “building blocks for any rule of law system”.
Therefore, everybody who cares for Hong Kong will be heartened that its credentials have been globally acknowledged by objective analysts using empirical techniques despite its antagonists’ efforts.
Moreover, the Index’s rankings are a fitting tribute to the city’s achievements under the “one country, two systems” policy. They reflect its independent Judiciary, world-class criminal justice system, and adherence to common law values and put to bed the fallacies of its detractors. The rankings also demonstrate that Hong Kong is a safe city governed by the rule of law, which is exactly what investors and businesses want to know.
If Sumption had imagined he was bigger than Hong Kong and its Judiciary, the Index has cut him down to size. Judges normally appreciate the importance of ascertaining the truth from the evidence, and he is hopefully no exception. Even if he does not recant, the Index should at least give him pause for thought and open the eyes of his henchmen.
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.
