By Francesca Chiu

The resignation of two overseas non-permanent judges from Hong Kong’s Court of Final Appeal hasn’t just raised questions about how these justices are assigned and why they stepped down — it has triggered a debate on the role of overseas judges and the meaning of the rule of law here. And this is a debate that requires us to carefully consider the broader context if we want it to mean anything at all.

Lord Robert Reed and Lord Patrick Hodge. Photo: UK Supreme court.

This is not the first time an overseas judge has resigned due to concerns over the National Security Law (NSL). Justice James Spigelman of Australia announced his early resignation from the Court of Final Appeal in September 2020, less than three months after the legislation came into force.

But this time is different: Lord Robert Reed and Lord Patrick Hodge are still serving and very senior judges in the UK — president and deputy president respectively of Britain’s Supreme Court — which means that their resignation is not purely a personal decision. It must also be read as a political move in keeping with Britain’s assessment of Hong Kong and its future.

The presence of overseas judges on the top court has been justified on several grounds, best summarised by Justice Fok in 2017: in short, they are meant to bring expertise and judicial experience to the Court of Final Appeal, a role related to the fact that before the handover there was a lack of Hong Kong judges who had sat in courts. Their presence is also intended to demonstrate confidence in the city’s judicial independence.

Court of Final Appeal. Photo: GovHK.

Scholars have frequently scrutinised their role in recent years, especially since the passage of the security law in June 2020. The need to compensate for a lack of local capacity has arguably long since been overcome thanks to the rise of local legal professionals over the past two decades. Studies have also noted that foreign judges are now far less involved in judgments than in the years immediately following the handover. That makes their presence more of a political gesture than a solution to skill shortages.

Having overseas judges on Hong Kong’s top court is generally seen as lending credence to the argument that the judiciary is still independent and that One Country Two Systems is working as intended. Their presence also supports the kind of institutional stability Beijing wants for the city. Yet critics have also claimed that their nationality somehow affects their decision-making ability and that their rulings are susceptible to foreign influence. Given that most judges are from Britain, this criticism is very much related to ongoing tensions between the UK and China over the future of Hong Kong.

Hong Kong judges. File photo: GovHK.

The resignations of Lord Reed and Lord Hodge do guarantee that we won’t see serving judges from the UK appearing in Hong Kong’s judicial system anymore. But beyond stoking renewed debate about overseas judges on the top court, the move sets a precedent for other foreign judges. Whether they like it or not, they will have to consider the politics and the reality in Hong Kong if they continue serving here.

As I write this, four of the overseas non-permanent judges – three from Australia and one from Canada – have already expressed willingness to continue serving on Hong Kong’s top court. The Australian judges expressed their support for Court of Final Appeal judges in their commitment to judicial independence. Former Canadian Chief Justice Beverley McLachlin said she believed that the court remains independent and is “perhaps the last surviving strong institution of democracy.” She denied that her participation in the top court should be seen as lending legitimacy to Hong Kong’s government.

But these statements from McLachlin appear contradictory: she acknowledges that foreign judges add credibility to the courts in Hong Kong, but denies that her presence lends support to authorities here. This is particularly odd given that Carrie Lam has stated that Hong Kong has no separation of powers, which is widely considered to be a core element of judicial independence and the rule of law.

Of course, rule of law is a loaded concept that is inevitably intertwined with developments in a jurisdiction’s legal system and sociopolitical trends — its meaning changes based on the society it serves. So the questions which the general public and any remaining overseas judges must consider are first, what values are intrinsic to the rule of law, and second, in what ways do foreign judges safeguard these values?

In Hong Kong, the idea of the rule of law has often served to signify a desire for protection of basic rights and liberties. Yet today the term has arguably become tied up with the idea of law and order – a concept which has been emphasised by local officials in relation to the national security law but which at its core is antithetical to the principle of rule of law.

While “rule of law” suggests equality under the law, “law and order” inherently implies a certain degree of subordination and subjectivity within and regarding the legal system. And in Hong Kong today, top officials tend to interpret law and order as a pre-requisite to the rule of law.

Overseas judges who justify their service on the Court of Final Appeal as a vote of confidence in the city’s judicial independence and rule of law risk lending their support to what is, in reality, a very different concept — when the term is used by authorities in a jurisdiction where law and order now seems to prevail.

Whether rule of law is still upheld in Hong Kong ultimately depends on how one understands the nature and the meaning of the concept. One judge may resign to safeguard the rule of law, while another may continue serving to demonstrate a desire to protect it. But quite apart from whether you disagree with either one of these judges, we need to be clear about the context in which “rule of law” is deployed.

Francesca Chiu is a PhD candidate focused on urban marginality and spatial politics in Myanmar at the University of East Anglia and the University of Copenhagen. She is a former researcher at the Centre for Civil Society and Governance at the University of Hong Kong. Follow her on Twitter.

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