June 10, 2024 – The recent resignations of respected British judges Lawrence Collins and Jonathan Sumption from Hong Kong’s Court of Final Appeal have sparked grave concerns over the territory’s deteriorating judicial independence and rule of law. Their departures, citing the city’s precarious “political situation,” come just a week after a landmark case where 14 pro-democracy activists, together with 31 other activists who have pleaded guilty anguishedly and helplessly, were convicted of subversion under the controversial National Security Law (NSL) imposed by Beijing in 2020.
As former overseas judges on Hong Kong’s top court, Collins and Sumption were part of a legacy system that allowed foreign jurists to serve, a holdover from the territory’s past as a British colony. Their exits represent the latest blows to Hong Kong’s promised autonomy and rule of law under the Sino-British Joint Declaration, which transferred sovereignty over Hong Kong from the UK to China in 1997.
The National Security Law and Crackdown on Dissent
The 2020 National Security Law has enabled a systematic crackdown on civil liberties and political freedoms in Hong Kong, with hundreds of pro-democracy activists, campaigners, and journalists arrested and denied fundamental legal rights typically afforded to defendants. Pro-democracy media outlets have been shuttered, campaign groups disbanded, and their leaders jailed on spurious charges.
In the landmark “Hong Kong 47” case last month, 45 prominent pro-democracy politicians were convicted of “conspiracy to commit subversion” and face potential life sentences merely for organizing unofficial primary elections to select candidates for the Legislative Council (LegCo). Bearing in mind although 2 activists are acquitted, they need to face the Department of Justice’s appeal by way of Case Stated immediately after the court’s verdict and are not allowed to leave Hong Kong. In the trial, the court ruled that their plan to potentially block the government’s budget proposals and force the resignation of the chief executive amounted to a criminal conspiracy, despite LegCo’s constitutional authority to reject budgets.
The convictions have drawn widespread condemnation from legal experts and Western governments, who warn that the NSL is being used to silence any form of peaceful, political dissent in Hong Kong. The vaguely defined offenses under the law, coupled with the denial of due process rights like bail, have created an atmosphere of fear and self-censorship in the once vibrant, politically diverse territory.
Undermining Judicial Independence
In his scathing op-ed “The rule of law in Hong Kong is in grave danger,” former overseas judge Jonathan Sumption outlined the multifaceted threats to judicial independence posed by the National Security Law and Beijing’s tightening grip over Hong Kong’s legal system.
Firstly, the NSL’s broad provisions and defunct colonial-era sedition laws severely constrain judges’ ability to uphold fundamental rights and freedoms enshrined in Hong Kong’s Basic Law, the territory’s de facto constitution. Judges are compelled to apply laws that are glaringly incompatible with international human rights standards.
Secondly, the Basic Law allows China’s rubber-stamp legislature, the National People’s Congress Standing Committee, to issue binding “interpretations” that can override and reverse court rulings. Beijing has demonstrated its willingness to use this power against its opponents, such as when it intervened to block British lawyers from representing jailed media tycoon Jimmy Lai.
Thirdly, Sumption highlights the “paranoia of the authorities” and the oppressive atmosphere generated by the constant vilification of any dissenting voices as “unpatriotic” threats to national security. Rare court decisions to grant bail or acquit NSL defendants have been met with outrage from pro-Beijing lawmakers, officials, and state media outlets, who issue relentless calls for judges to demonstrate “patriotism.”
In this climate of intense political pressure and potential retaliation, Sumption argues that many local judges have abandoned their traditional role as defenders of civil liberties, even in cases where Hong Kong’s laws technically allow for the protection of rights like free speech and assembly. The mere perception of dissent is treated as a call for revolution, with hefty jail sentences handed down for publishing books, singing songs, or organizing vigils deemed “disloyal” by authorities.
Exodus of Foreign Judges and International Outcry
The resignations of Collins, Sumption, and other foreign jurists from Hong Kong’s top court have added to the growing chorus of international voices condemning the erosion of judicial independence and human rights protections in the territory.
In 2020, veteran Australian judge James Spigelman was among the first to resign from the Court of Final Appeal, citing concerns over the NSL’s sweeping scope. The following year, two serving UK Supreme Court justices, Robert Reed and Patrick Hodge, also cut ties with Hong Kong’s judiciary following concerns raised by the British government over the territory’s departure “from values of political freedom and freedom of expression.”
Since then, the remaining foreign judges on Hong Kong’s Court of Final Appeal have faced mounting pressure from rights groups and Western governments, including the US, UK, EU members, and Australia, to recuse themselves from a legal system that has been “wholly undermined” by Beijing’s interference.
In 2022, a 43-page legal opinion signed by several senior legal figures, including former UK Attorney General Sir Robert Buckland, warned that the overseas judges were being used by the Hong Kong government to lend credibility to a judicial system where the Chinese government could effectively dictate the outcome of cases.
The judges who remained at the time, including Collins and Sumption, defended their decision by claiming their “continued participation” would be “in the interest of the people of Hong Kong.” However, their recent resignations suggest a recognition that sustaining the rule of law in Hong Kong is no longer a realistic prospect.
Sentinel Defenders Network express grave concern:
The resignations of respected British judges from Hong Kong’s highest court, coupled with the recent convictions of pro-democracy activists under the National Security Law, have laid bare the steady erosion of judicial independence and rule of law in the territory. Despite Hong Kong’s constitutional guarantees of autonomy and human rights protections, Beijing’s imposition of the NSL and its willingness to override court decisions have effectively compromised the city’s once-vaunted legal system.
As Hong Kong slides further into an authoritarian state where dissent is criminalized and due process rights are routinely violated, the international community must escalate scrutiny and pressure on China to honor its legal obligations under the Sino-British Joint Declaration. The continued presence of foreign judges risks lending credibility to a judicial system that has been “wholly undermined” by Beijing’s interference.
We call on the UK government, Western nations, and the global legal community to take concerted action to uphold the rule of law and preserve Hong Kong’s promised freedoms. This is not a betrayal of the people of Hong Kong, who have shown remarkable resilience in their struggle for democracy and autonomy. Rather, it is a vital opportunity to stand in solidarity with Hong Kongers defending the universal principles of judicial independence, human rights, and democracy against authoritarian encroachment. By taking a resolute, principled stance, the world can send an unequivocal message that Hong Kong’s aspirations for freedom and self-governance will not be extinguished under Beijing’s tightening grip. The courageous people of Hong Kong deserve the international community’s unwavering support in this pivotal battle for the rule of law.
