British Judge Lord Sumption’s resignation from Hong Kong’s top court will raise concerns about the state of the rule of law in Hong Kong and may discourage foreign investors, said civil rights lawyer and human rights activist Baroness Helena Kennedy of the Shaws.
“Any company or investors with financial interests must be thinking twice about their assets,” Baroness Kennedy said in an email to the Epoch Times last week.
Lord Sumption resigned from the Hong Kong Court of Final Appeal after the Hong Kong High Court delivered its verdict for 16 of the 47 pro-democracy figures known as the “NSL 47,” or “national security law 47.” The 47 individuals were prosecuted under China’s new national security law imposed in the once-free port city.
The trial is reportedly the city’s largest under the CCP’s new national security law. In January 2021, 53 pro-democracy activists were arrested for organizing or participating in primaries for the postponed 2020 Legislative Council Election. Of these, 47 were charged with “conspiracy to subvert state power."
Baroness Helena Kennedy, also a member of the House of Lords, applauded Lord Sumption’s withdrawal from the Court of Final Appeal.
“The watchful eye of China and its long arm is already having a chilling effect on the judiciary and on lawyers in Hong Kong. When people undertake their roles in a climate of fear they amend their own conduct in ways that can deny justice,” she wrote.
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The Hong Kong national security law, which took effect June 30, 2020, has been used to target democratic activities. According to the Hong Kong government, 291 suspects aged between 15 and 90 have been arrested under the security law as of March 8 this year.
Hong Kong authorities issued a statement on June 11 calling Lord Sumption’s views on the rule of law in Hong Kong “groundless.”
‘Better Late Than Never’
Lord Lawrence Collins, who resigned from the Hong Kong Court of Final Appeal alongside Lord Sumption, briefly mentioned “Hong Kong’s political situation” as his reason for stepping down.On June 10, Canadian Judge Beverley McLachlin also announced her retirement from the Hong Kong Court of Final Appeal. She became the ninth overseas non-permanent judge to leave the court since the enactment of the national security law.
Former Hong Kong District Councillor Mr. Yau Man-chun welcomed the resignation of the two British judges, and regretted they hadn’t done so earlier.
“If these foreign judges had stood up and collectively left this authoritarian system right after the implementation of the National Security Law, particularly when the 47 individuals were arbitrarily arrested, it would have drawn significant international attention and exerted greater pressure on the Chinese Communist Party (CCP),” he told The Epoch Times.
Hong Kong Watch co-founder and executive director Benedict Rogers and public affairs manager of the Committee for Freedom in Hong Kong (CFHK) Alyssa Fong said earlier that they welcome the withdrawal of the two British judges from the Hong Kong court, yet with some regret.
“Their decision is long overdue, but better late than never,” said Mr. Rogers.
Currently, seven foreign judges still serve on the Hong Kong Court of Final Appeal—three Britons and four Australians.
At the Bar Council’s conference in London on June 10, Lord Neuberger of Abbotsbury, former president of the UK Supreme Court, said he would continue to serve on the court.
“My feeling is that so long as I can do good by being there and so long as I think that I might cause harm by leaving, I want to stay and support my judicial colleagues in Hong Kong and support the rule of law as long as I can,” Lord Neuberger of Abbotsbury told the UK-based weekly Law Society Gazette.
He did not think the resignations of Lords Sumption and Collins were wrong but “it’s a matter of individual assessment as to when the water gets too hot.“
Hong Kong Judicial System Controlled by CCP
In an opinion piece for the Financial Times, Lord Sumption raised a key issue of concern: “If China does not like the courts’ decisions it can have them reversed by an ‘interpretation’ from the standing committee of the National People’s Congress in Beijing.”A precedent case occurred in 2023 during the high-profile prosecution of Hong Kong billionaire and publisher Jimmy Lai. The Court of Final Appeal permitted Mr. Lai to select foreign lawyers for his defense. However, Beijing’s “interpretation” asserted that the decision on whether Mr. Lai could hire foreign lawyers should be made by Chief Executive John Lee.
“Lord Sumption’s description of the powers vested in the standing committee of the NPC in Beijing to overturn decisions by providing a different interpretation is wholly accurate,” Baroness Kennedy wrote.
NPC stands for National People’s Congress of China, which is the CCP’s top legislative watchdog.
She said the Hong Kong legal community mistakenly believes that victory can be achieved “softly,” but she believed “that is not how China’s governing class operates.”
Mr. Yau said the CCP overturning judgments through “interpretation of the law” is nothing new to the people of Hong Kong. “Such absurd actions have been evident in the past few years since the change of sovereignty in Hong Kong. We have kept seeing the CCP’s authoritarian ways.”
Baroness Kennedy raised concerns about Hong Kong’s democracy in the British Parliament and was placed on the so-called sanctions list by the CCP.
“I cannot travel to the region and I do not connect with old friends there for fear of compromising their safety,” she told The Epoch Times.
Impact of US Sanctions?
After the verdict in the Hong Kong 47 trial on May 30, the US. Congressional-Executive Commission on China (CECC) condemned the judgments and called on the Biden administration to sanction the judges and prosecutors involved.The U.S. State Department blasted Hong Kong’s arrests and prosecution as “politically motivated” and the department announced on May 31 that the United States has imposed new financial and visa restrictions on the CCP and Hong Kong officials who are “in connection with actions or policies that threaten the peace, security, stability, or autonomy of Hong Kong,” in response to the conviction of the 14 pro-democracy individuals in the city.
Lord Sumption considers the sanctions the judges face as a “crude, counterproductive and unjust” idea.
He argues that most of these foreign judges are“honorable people with all the liberal instincts of the common law”,though they have to work in the “impossible political environment” created by China.
Mr. Kwok Tsz-Kin, former Hong Kong District Councillor and co-founder of the Hong Kong Scots, told the Epoch Times that he believes the current wave of foreign judges resigning is related to the U.S. sanctions.
“U.S. sanctions are real, not just words. These judges have to think about their own futures and don’t want to burn their own bridges,” he said.
He mentioned that Hong Kong’s former chief executives, including Tung Chee-hwa, Leung Chun-ying, and Carrie Lam, have been sanctioned by the United States, but that “they still have CCP’s protection after retirement. They all have their own ‘former chief executive’s office,’ and still receive funds from the CCP.”
But foreign judges won’t have such treatment, according to Mr. Kwok.
“These judges are different from Hong Kong officials. If they are sanctioned by the U.S., they have no way out,” he said.
Hong Kong’s Status as Financial Hub Is Waning
Hong Kong’s status as an international financial center is further weakened following the resignations of more foreign judges, Mr. Kwok said.It is part of the agreement between the UK and China that Hong Kong was to retain its freedoms and its existing system for 50 years—including freedom of expression and judicial independence, after it was handed back to China by the UK.
The arrangement for overseas judges in the Hong Kong Court of Final Appeal is part of the deal.
Mr. Kwok said due to the gray areas in the national security law, foreign companies are losing confidence in Hong Kong’s rule of law.
“For example, there are no objective standards for what kind of speech crosses the line of inciting subversion, and no reference or discussion on this either. The outside world could not fathom where the red line is,” he said.
“Foreign businesses in Hong Kong do not know how to navigate these situations. Such chaos cannot assure foreign businesses and institutions of smooth operations.”
Mr. Yau said that given the authoritarian nature of the CCP, it will undoubtedly settle scores with those who fight for democracy in Hong Kong. “In this authoritarian rule, we can only wish for the safety of all those with conscience and justice.”
Sophia Lam contributed to the report.
