International judicial figures, including former UK attorney general Sir Robert Buckland, have warned the remaining British, Australian and Canadian judges in Hong Kong that they are working in an environment where judicial independence has been severely undermined and the Chinese Communist Party can dictate the outcome of cases.
The group supports a legal opinion that states that the systematic threats to Hong Kong's judicial independence will continue to increase, and that the presence of overseas judges is being used by the territory's government as a vote of confidence.
As attorney general, Buckland initiated a government review that led to the foreign secretary, Liz Truss, to announce in March that serving UK-appointed judges would no longer sit in Hong Kong's top court, the court of final appeal. Two British supreme court judges resigned immediately, but in a joint statement, six Hong Kong-appointed British judges resisted standing down, saying they believed their continued participation as overseas judges was in the interest of the people of Hong Kong. Two other judges, from Canada and Australia, also agreed to stay on.
The legal opinion was intended to make the judges think again, although it does not explicitly call for them to stand aside in respect to their independence.
Other signatories include Human Rights lawyer Helena Kennedy, Alex Carlile, a former independent reviewer of UK terrorist legislation, Professor Irwin Cotler, a former Attorney General of Canada, Guy Mansfield, a former chairman of the UK Bar Council, the war crimes prosecutor Sir Geoffrey Nice, and Michael Kirby, a former justice of the high court of Australia.
It details how judicial independence in Hong Kong is in a headlong retreat, and how the overseas judges have very limited power in practice to reverse the process.
It says China's National People's Congress standing committee has been issuing its own interpretations of the territory's mini-constitution, the Basic Law, that the Hong Kong judges have gradually accepted as binding upon them. The 43-sided legal opinion states that the Communist party is using these interpretations to pre-empt imminent or pending litigation in Hong Kong.
Pro-Beijing actors, including Hong Kong legislators, threaten to reduce the jurisdiction of the Hong Kong courts if they are not handled in the interest of the Communist Party, it adds. There has been a trend toward greater judicial deference toward the executive in ways that are not reflected in established legal principles because overseas judges have no security of tenure and face the permanent threat that cases will be removed from the mainland criminal law system. The legal opinion states that the presence of overseas judges is of considerable reputational benefit to the Hong Kong government, which has repeatedly stated that the presence of the judges in the Hong Kong courts is a vote of confidence in the Hong Kong courts as a whole.
The six judges who signed the statement said they were staying in Hong Kong no longer work full-time in British courts. Lord Phillips of Worth Matravers, Lord Neuberger of Abbotsbury, Lord Sumption, Lord Walker of Gestingthorpe, Lord Collins of Mapesbury and Lord Hoffmann are among them. It is rare for judicial figures to air their professional differences in this way.
Chung Ching Kwong, the Hong Kong coordinator for the Inter-Parliamentary Alliance on China, said it was a sign of how serious the situation is back home, that so many judicial figures have broken ranks to sign this opinion. I have friends in prison who encourage people to light candles. The judges are legitimising this system.