Sad, but true. British judges need to think long and hard about giving continued credibility to Hong Kong’s corrupted legal system
They should collectively stand down and demand that the territory’s independent judicial system be restored
Alisdair Carmichael MP – Friday December 04 2020, 12.01am, The Times
Joshua Wong’s conviction by a Hong Kong court is the latest and most unhappy signal of the direction of travel in the territory. The pro-democracy activist was given a 13-month prison sentence after being found guilty of charges relating to a protest that took place long before, and was therefore not subject to, the draconian new security law imposed by Beijing this summer. Under the new law, Mr Wong’s sentence could have been life.
Hong Kong’s independent judiciary has long been the life blood of its success, economically and culturally. So far it has refused to submit. In October, a Hong Kong judge dismissed the case against eight protesters in one of last year’s most violent confrontations, blaming the police for incompetence.
Mr Wong’s treatment was harsh but it is the new national security law that has thrown all prospects of fairness from the judicial system in doubt. That has grave implications for the British judges who serve on the territory’s highest court.
It is a peculiarity of Hong Kong’s post-colonial system that its court of final appeal is not overseen by its own judges only but by visiting justices from other common law jurisdictions, including Britain. That court is yet to hear a criminal case under the new law but the outstanding question is whether it would ever do so.
Carrie Lam, Hong Kong’s chief executive, now so circumscribed by US sanctions that she must conduct her affairs in cash, has the power to appoint judges who will hear cases brought under the new law. She may even choose to transfer them to the Chinese mainland where the outcome is more predictable.
Some analysts say that Ms Lam, which to all intents and purposes means Beijing, would never let a British judge near a national security case. That would certainly mitigate any influence a British judge could have over the application of the law. Nonetheless the question is whether British judges should continue to give a fig leaf of credibility to Hong Kong’s new reality by meekly presiding over its commercial and civil cases while barred from criminal proceedings under a law that suppresses basic civil rights and would never take place in a democracy? The markets might say yes but morality is strained.
None of the nine British judges who can serve on the court, which includes several former presidents of Britain’s Supreme Court, such as Baroness Hale of Richmond, have spoken out on the new law. They are in a tight spot. Not only can British judges not implement the new law without disgracing the legal tradition they come from, they are legally bound by Beijing not to criticise it if they wish to remain on the court.
Dominic Raab, the foreign secretary, has said it may no longer be sustainable for British judges to serve in Hong Kong and is consulting with the Supreme Court and the lord chancellor on the way forward.
No one chooses to see government intervention in the judiciary. But the question of whether British judges should gild a Beijing-driven court with their authority is a foreign policy issue too. The consultation should inform judges of the issues, not promulgate orders.
That doesn’t mean it isn’t clear what the judges should do. The illusion that they can deliver change from within the new system has been exploded, as it has for many who have sought close engagement with China. It is time for a common position. They should resign together and with one voice demand that Hong Kong’s independent justice be restored.