Britain withdraws judges from Hong Kong’s highest courts

“We have witnessed a systematic erosion of freedom and democracy in Hong Kong,” British Foreign Secretary Liz Truss said in a statement on Wednesday. “Since the national security law was imposed, authorities have cracked down on freedom of speech, freedom of the press and freedom of association,” she said, adding that it was not “more tenable” for his country’s judges to sit on the court.

In a harshly worded response, the Hong Kong government said the national security law was typical of any country seeking to defend itself and called Britain’s move “appalling”.

“We strongly oppose the absurd and misleading accusations against the NSL and our legal system. Every country in the world would take threats to its national security very seriously,” the statement said.

Two British judges sat on the Court of Final Appeal, Hong Kong’s highest court, before both resigned on Wednesday, alongside the UK government’s announcement.

The Court of Final Appeal is made up of permanent judges and other non-permanent judges who may be from any common law jurisdiction. Hong Kong, a former British colony, inherited the common law system, which it retained even after the handover to China in 1997 under the “one country, two systems” framework.

Under this framework and Hong Kong’s mini-constitution, the courts are supposed to be independent of political influence and mainland China, which has underpinned Hong Kong’s appeal to foreign businesses.

Hong Kong, under the “one country, two systems”, had one of the most respected courts and judicial systems in Asia, considered free from interference, unlike the mainland’s judicial system. Hong Kong is an arbitration center and home to many global law firms and top legal talent.

The withdrawal of the two British judges “are votes of no confidence in the whole political and legal environment after the national security law,” said Eric Yan-ho Lai, a Hong Kong law researcher at the Center for Asian. Law from Georgetown University. “Business groups would also interpret this decision as an indicator of the integrity of Hong Kong’s legal system currently.”

Common law jurisdictions include Australia, Canada and New Zealand, and judges from all of these countries have sat on the Court of Final Appeal as non-permanent judges. An Australian judge quit the Supreme Court in September 2020, citing the content of the National Security Act.

A handful of Australian and Canadian judges are now the only foreign judges remaining after Wednesday’s resignations. The Canadian judge, former Chief Justice of the Supreme Court of Canada Beverley McLachlin, defended her decision to stay in an interview with Canada’s National Post in August, calling the court “perhaps the last bastion of a intact democracy” in Hong Kong.

Lord Robert Reed, who is also the chief justice of Britain’s Supreme Court, said in a statement announcing his resignation on Wednesday that Supreme Court justices “cannot continue to sit in Hong Kong without appearing to endorse a administration that has strayed from political values”. freedom and freedom of expression”.

Hong Kong was rocked by anti-government protests in 2019, sparked by fears that the legal firewall between the territory and mainland China could erode over a proposed law allowing extraditions between the two places. It turned into a complete rebuke of China and the Hong Kong government. In 2020, China bypassed Hong Kong’s legislature and passed a sweeping national security law that has since criminalized dissent and silenced and imprisoned the opposition.

The justice system has been a crucial part of this process, and judges must now implement China’s drafted national security law, which, among other things, denies bail to suspects detained for political crimes even before their guilt is not proven. All of Hong Kong’s most prominent activists, including media mogul Jimmy Lai, protest leader Joshua Wong and others, are in custody.

Jimmy Lai was denied bail by the Court of Final Appeal, and that bail precedent applied to the dozens of other political activists and former lawmakers in custody. Many of Hong Kong’s key pro-democracy leaders – lawyers, LGBTQ activists, social workers and students among them – have been in detention for more than a year as their trial under the national security law drags on.

Britain’s decision comes after months of lobbying by British parliamentarians and activists who have argued since the National Security Act was passed that foreign judges have no place in the court. They argued that these judges could not act as restraining forces but legitimized political repression there. Judges who oversee national security cases are hand-picked and can be replaced after a one-year term.

“For too long, British judges have served as a front for the Chinese government’s brutal crackdown on all forms of political opposition in Hong Kong,” said Afzal Khan, Member of Parliament and the Inter-Parliamentary Alliance on China. . “This announcement is welcome and long overdue.”

correction

An earlier version of the article misspelled Afzal Khan’s name. This message has been corrected.

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