Former chief justice of the Supreme Court of Canada Beverley McLachlin announced her retirement as a Non-Permanent Judge (NPJ) in the Hong Kong Court of Final Appeal (HKCFA) on Monday following the June 6 resignations of two other overseas NPJs, UK Lords Collins and Sumption.
“It has been a privilege serving the people of Hong Kong,” McLachlin wrote in her statement, adding that she continues to have “confidence in the members of the Court, their independence, and their determination to uphold the rule of law.” In June last year, McLachlin similarly stated that Hong Kong courts are functioning independently from the government, free from governmental interference. She added that the role of independent judges is still necessary to hold the government accountable and help the cause of democracy which many people are “still fighting very hard for.”
Former UK Supreme Court justice Lord Sumption wrote in the Financial Times on Monday contending that hoping the presence of overseas NPJs would help sustain the rule of law is “no longer realistic.” He voiced concerns over the judges’ “impossibility to operate” in a political environment created by China. He alleged that the colonial law against sedition, the Chinese National People’s Congress Standing Committee’s (NPCSC) interpretative power to reverse a course ruling, and an oppressive atmosphere calling for judicial “patriotism” limit the judges’ freedom of action. However, under this political environment, Lord Sumption stressed that US sanctions against Hong Kong officials are “crude, counterproductive and unjust.”
Hong Kong Chief Justice Andrew Cheung on Tuesday responded by saying that opinions publicly stated may improperly interfere with the court’s administration of justice. He further added that allegations against the impartiality and independence of judges should be substantiated and not lightly made. Cheung also acknowledged the difficulty to strike a balance between protecting fundamental rights and safeguarding national security, but he stated that disagreement with a court’s decision does not support Lord Sumption’s contention that fundamental rights are compromised by political concerns.
The government also expressed its disapproval of Lord Sumption’s statement. It reiterated that the interpretative power enjoyed by the NPCSC is provided by the Hong Kong Basic Law and is in accordance with the “One Country, Two Systems” principle. The statement also reaffirmed that the China-imposed National Security Law (NSL) and the newly enacted Safeguarding National Security Ordinance expressly provide for the application of international covenants in Hong Kong and that Hong Kong courts continue to enjoy the power of final adjudication and judicial independence.
Hong Kong Chief Executive John Lee expressed disappointment with Lord Sumption’s decision to “abandon his overseas colleagues.” Lee said judges’ expertise should be used to interpret laws based on legal principles and evidence, preventing personal biases and political stances from influencing their decisions.
Lond Sumption also commented that the recent convictions against 14 democracy activists are legally indefensible because their plans were merely to exercise power expressly authorised in the Basic Law, Hong Kong’s mini-constitution.
Overseas NPJs at the HKCFA are considered important to maintain confidence in the independence of Hong Kong’s judiciary and the reputation of Hong Kong’s judicial decision-making by involving judicial experience and expertise from other common law jurisdictions. Since the implementation of the National Security Law, six overseas NPJs stepped down, citing political and NSL-related concerns as their reasons for resignation. They include British judges Baroness Brenda Hale, Lord Robert Heed, Lord Patrick Hodge, Lord Lawrence Collins, Lord Jonathan Sumption, and Australian Judge James Spigelman. After the retirement of McLachlin in July, there are only seven overseas NPJs left in the HKCFA.
