A report released this week before the UK Parliament details how the Hong Kong authorities are using the reputations and prestige of overseas common law judges to draw a veil over their country’s deteriorating legal system. The report, issued by the Committee for the Freedom of Hong Kong presents a damning indictment on how the Chinese Communist Party (CCP) has weaponised the presence of overseas non-permanent judges in the Hong Kong judicial system to further their crackdown on civil liberties. CFHK argues that these judges no longer provide positive guidance for the Courts, but merely give undeserved credibility to an authoritarian regime. The report also explores possible conflicts of interest faced by the members of the House of Lords that sit on the Hong Kong Court of Final Appeal.
Two years ago, then Foreign Secretary and Former Prime Minister Liz Truss supported the withdrawal of serving UK judges from the Hong Kong Court of Final Appeal. High-level discussions determined it was no longer tenable for serving UK judges to sit on Hong Kong’s top court; but as this report points out, these theories have yet to evolve into practice.
In Hong Kong, the presence of foreign non-permanent judges (NPJs) on the Court of Final Appeal, a vestige of British colonial rule, is facing increasing scrutiny and criticism. The report highlights various concerns and argues that the current political environment, shaped by the National Security Law and Article 23, has eroded the independence of the judiciary and compromised human rights in the region.
The report emphasises that the overseas non-permanent judges, particularly those from the UK, Australia, and Canada, are no longer providing the intended benefits to the Hong Kong judiciary. Instead, their presence is being utilised by the authorities to legitimise crackdowns on civil liberties and political dissidents, such as human rights activist leader Chow Hang-Tung’s conviction for inciting an “unauthorised assembly” in the form of a candlelit vigil for the 1989 Tiananmen Square Massacre. The case of Chow Hang-Tung exemplifies that it is not just a judge’s presence that gives her ruling credibility, but a foreign judge contributed to the unanimous decision to reinstate her conviction. They are actively serving on cases that send human rights activists to jail, something they would likely be less inclined to do in their home country. The influence of Beijing over the judiciary, through interpretation powers and appointments, has raised doubts about the court’s ability to act independently.
Beijing’s power over the judiciary, including the Court of Final Appeal has shown itself to be highly reluctant to challenge government abuses of the law, particularly with respect to the crackdown on civil liberties and vast numbers of political prosecutions of dissidents. The Court is selective in the cases it chooses to hear, typically refusing to hear appeals from political dissidents while granting many government requests for leave to appeal. And when the Court hears these government appeals, with very few exceptions it has ruled in the government’s favour.
Notably, instances where overseas judges ruled against political dissidents have sparked controversy and have been seen as contributing to the government’s oppressive actions. The report also highlights conflicts of interest faced by NPJs who are also members of the UK House of Lords, as allegiance to the Crown and to Hong Kong’s government, and the Hong Kong Special Administrative Region of the People’s Republic of China, which can clash in the current geopolitical climate.
Lord Reed, UK Supreme Court president and former judge of the Hong Kong Court of Final Appeal, said:
“I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed. Lord Hodge and I have accordingly submitted our resignations as non-permanent judges of the HKCFA with immediate effect”.
The recommendations put forth in the report include urging the overseas NPJs to resign from their positions, discouraging citizens of certain countries from serving on Hong Kong courts, and advocating for increased transparency and accountability for House of Lords members involved in the Hong Kong judiciary.
The report makes several recommendations regarding the overseas non-permanent judges (NPJs) serving on the Hong Kong Court of Final Appeal, as well as actions related to common law governments and the House of Lords.
The report makes further recommendations on the positions of overseas judges acting under the CCP in Hong Kong’s judicial system, which is deeply flawed:
Overseas non-permanent judges: The remaining overseas NPJs should step down from the Hong Kong Court of Final Appeal due to the erosion of human rights, judicial independence, and the rule of law in Hong Kong. Following the example of three colleagues who resigned in 2022 over concerns that their presence legitimised Hong Kong’s authoritarian regime.
Common law governments: The governments of the United Kingdom, Canada, Australia, and New Zealand should actively discourage their citizens from taking positions on the Hong Kong courts. Any citizens who do take positions on these courts should be restricted from serving in public positions and commissions in their home countries due to potential conflicts of interest.
On the House of Lords, the report recommends that judges who are members of the House of Lords should declare their financial interests related to the Hong Kong Court of Final Appeal, including specified salary ranges. Peers who fail to disclose their interests as required by the current Code of Conduct should be subject to parliamentary sanctions. Furthermore, the House of Lords should revise its Code of Conduct to require members who take a leave of absence to continue registering all foreign government financial interests with specified salary ranges.
These recommendations aim to address the challenges and conflicts associated with the involvement of overseas judges serving in the Hong Kong judiciary, emphasising the need for transparency, accountability, and alignment with principles of human rights and judicial independence.
