The pro-government press has been fawning over an unlikely hero – retired British judge Lord Sumption. His Lordship pleased the poodles by writing a letter to The Times of London, defending his decision to carry on with his appointment as one of the overseas judges invited – one at a time – to sit on our Court of Final Appeal.
Apart from a detour into Hong Kong history, which is both inaccurate and irrelevant – we became an ex-colony 24 years ago – his basic idea is that you can have an independent judiciary and the rule of law without democracy, and that this is still something valuable.
In short, he’s doing it to help us. It is rather touching, really, that this elderly gent is prepared to suffer the rigours of first-class travel, and endure the privations of several weeks in a five-star hotel, for us. How sweet. No doubt there will be some parsimonious lai see thrown in, on which he will not have to pay tax because it’s earned outside the UK, but I’m sure he doesn’t need the money.
His Lordship seems to have rather poor sources of information in Hong Kong. The nomination of judges to hear national security law cases has, he says, been uncontentious. Well there hasn’t been much contention because the whole process has been entirely secret. You only find out who’s on the list when he or she appears at the trial.
This part of the national security law has one happy consequence for his Lordship, though. The overseas judges on the Court of Final Appeal are not on the list and are not on the bench for national security cases. So Lord Sumption can, as it were, get his snout in the trough without getting his trotters dirty.
But I cannot, alas, agree with his idea about the separate value of an independent judiciary if you are ruled, as we are, by a distant dictator. Independent judges are a useful protection against illegal action by overbearing officials. They are no protection at all against bad laws.
If the law is arbitrary, brutal and oppressive the judges will loyally enforce it, because that is what judges do. When ruining people’s lives is part of your job description you need to think that you have no choice. It helps you to sleep. So arbitrariness, brutality and oppression will occur.
His Lordship does not seem to have got his head round what we are encountering here. Perhaps if some of his friends had been jailed he would share my misgivings about foreign lawyers fostering the pretence that we still enjoy the rule of law.
He has, after all, written perceptively about the way these things change: “We will not recognise the end of democracy if it comes. Advanced democracies are not overthrown. There are no tanks on the streets, no sudden catastrophes, no brash dictators or braying mobs. Instead, their institutions are imperceptibly drained of everything that once made them democratic. The rhetoric of democracy will be unchanged, but it will be meaningless.”
And this is the way it goes with the legal stuff as well. We still have the courts, the robes, the wigs, the rhetoric. All that is missing are trivial things like the right to bail, the right to a fair trial, the right to trial by jury … Hong Kong judges have to navigate through this as well as they can. Visitors can stay home.
And you pro-government people need to be careful what you wish for. Lord Sumption has made an interesting post-retirement career as an advocate of civil disobedience.
Here is His Lordship on the subject: “I feel sad that we have the kind of laws which public-spirited people may need to break. I have always taken a line on this, which is probably different from that of most of my former colleagues. I do not believe that there is a moral obligation to obey the law… You have to have a high degree of respect, both for the object that the law is trying to achieve, and for the way that it’s been achieved. Some laws invite breach.”
This is what Benny Tai has been saying for years. And look, your Lordship, where it has got him.
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