Committee for the Freedom of Hong Kong (CFHK), a non-governmental organization (NGO), released a report in the British Parliament on May 14 on how foreign judges sitting in the Court of Final Appeal (CFA) provide legitimacy for Beijing to suppress political freedoms in Hong Kong.
The report, titled “Lending Prestige to Persecution: How Foreign Judges are Undermining Hong Kong’s Freedoms and Why They Should Quit,” said that Hong Kong’s judicial system has been reshaped to serve the CCP’s authority, and the Hong Kong government has used the prestige of these overseas NPJs from the UK, Canada, Australia, and other places to rationalize their violations of human rights and weakening the rule of law in Hong Kong.
The report gives details on how ten foreign common law judges from the UK, Canada, and other countries sat in trials in Hong Kong, thus legitimizing Beijing’s crackdown on political freedoms in the city. It also gives the reasons why overseas NPJs should resign, saying that these judges used to claim they serve constitutionalism and human rights, but because Hong Kong’s authoritarian government and judicial organs have systematically violated the rights of Hongkongers in recent years, these judges are providing, through the prestige of their own countries, legitimacy to the Hong Kong government who exercises repressive actions.
Alyssa Fong, who authored the report, said at the conference that the presence of overseas judges would do little good to Hong Kong’s remaining rights-based order. Instead, the Hong Kong authorities can use the prestige of these retired judges to provide legitimacy for their human rights abuses and erosion of Hong Kong’s rule of law. Ms. Fong pointed out that overseas judges had contributed to the reputation of Hong Kong’s judicial system and courts in the past, but since the implementation of the NSL and Article 23 of the Basic Law, Hong Kong’s legal system has been reshaped to serve the CCP’s autocratic regime.
Ms. Fong pointed out that as a Hongkonger, she was utterly disappointed when she heard in 2022 that Robert Reed and Patrick Hodge, Presidents of the UK Supreme Court who have served on Hong Kong’s CFA since 1997, decided to resign from their Hong Kong posts due to the perceived threats to civil liberties posed by the NSL, the remaining five British judges, Leonard Hoffmann, Nicholas Phillips, Jonathan Sumption, David Neuberger, and Lawrence Collins, jointly issued a statement saying they were “completely satisfied” with the independence and impartiality of the CFA.
2 NPJs Named for Their Direct Involvement in Political Cases
The report specifically named Anthony Gleeson and Leonard Hoffmann as two overseas NPJs of the CFA, claiming direct involvement in political cases but at the same time giving out unfair rulings on dissidents. For example, Judge Gleeson, together with four other NPJs, is cited to be involved in overturning the High Court’s acquittal of Tonyee Chow Hang-tong, former vice chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, on a charge of “inciting others to participate in unlawful assemblies,” with the sole purpose to imprison and silence her. The entire trial process was found to proceed with lots of questionable evidence.
Judge Hoffmann also played an important role in reinstating the conviction of a man who was merely accused of filming the assembly. The Court of Final Appeal’s decision that a person can be convicted of participating in an unlawful assembly without intending to do so blurs the line between “unlawful” participants in a demonstration and those who merely attempt to record the event. The report alleges that overseas non-permanent judges have directly ruled against defendants in political cases on at least five occasions, which is legally and ethically problematic.
British Overseas Judges Pledge Allegiance to Hong Kong Amid Conflict
The report also questioned the potential irreconcilable conflicts between four overseas judges who are also members of the British House of Lords. British MPs are required to take an oath of allegiance to the Crown and are regularly called on to consider bills under this oath. When they serve as overseas judges in Hong Kong, they must also be loyal to Hong Kong. Ms. Fong said that although there was not much problem with such double oaths in history, with the increasing conflict of interests between China and Britain, the problem of allegiance has become difficult to reconcile. For example, the provisions on bail in the Hong Kong National Security Law are contrary to the principle of presumption of innocence in the common law system, and judicial decisions have been subject to administrative intervention.Due to the serious erosion of human rights, judicial independence, and the rule of law in Hong Kong, Ms. Fong believes that the remaining overseas NPJs should follow in the footsteps of their three peers who quit in 2022 and resign, as well. Moreover, the report recommends that the governments of the United Kingdom, Canada, Australia, and New Zealand should actively discourage their citizens from serving in Hong Kong courts. Any citizen serving on these courts should be restricted from holding public office and committee positions in their home country to avoid conflicts of interest.
