“We have seen a systematic erosion of liberty and democracy in Hong Kong,” said British Foreign Secretary Liz Truss in a statement Wednesday. “Since the National Security Law was imposed, authorities have cracked down on free speech, the free press and free association,” she said, adding it was “no longer tenable” for her country’s judges to sit on the court.
In a blog post Wednesday, Hong Kong’s Secretary of Justice Teresa Cheng wrote that the territory continues to have judicial independence and that judges are “not influenced by any extraneous matters or personal interest,” without directly addressing Britain’s decision.
Two British judges were serving on the Court of Final Appeal, Hong Kong’s highest court, before both resigned Wednesday, in tandem with the British government’s announcement.
The Court of Final Appeal is composed of permanent judges and other nonpermanent judges that can come from any common law jurisdiction. Hong Kong, a former British colony, inherited the common law system, which it kept even after the 1997 handover to China under the “one country, two systems” framework.
Under that framework and Hong Kong’s mini constitution, the courts are meant to be independent from political influence and mainland China, which has underpinned Hong Kong’s appeal to foreign businesses.
Hong Kong under the “one country, two systems” framework had one of the most respected courts and judicial systems in Asia, seen to be free of interference, unlike the judicial system of the mainland. Hong Kong is a center for arbitration and home to many global law firms and top legal talent.
The withdrawal of the two British judges “are votes of no confidence to the whole political and legal environment after the national security law,” said Eric Yan-ho Lai, the Hong Kong Law fellow at the Center for Asian Law in Georgetown University. “Business groups would also read the move as an indicator of the integrity of Hong Kong’s legal system now.”
Common law jurisdictions include Australia, Canada and New Zealand, and judges from all of those countries have sat on the Court of Final Appeal as nonpermanent judges. An Australian judge quit the top court in September 2020, citing the content of the national security law.
A handful of Australian and Canadian judges are now the only foreign judges left after the resignations Wednesday. The Canadian judge, former Supreme Court of Canada chief justice Beverley McLachlin, defended her decision to stay on in an interview with Canada’s National Post in August, calling the court “the last bastion perhaps of intact democracy” in Hong Kong.
Lord Robert Reed, who is also the president of Britain’s Supreme Court, said in a statement announcing his resignation Wednesday that the judges of the Supreme Court “cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political 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 was eroding through a bill that would allow extraditions between the two places. It spiraled into an all-out rebuke of China and Hong Kong’s government. In 2020, China bypassed Hong Kong’s legislature and passed a sweeping national security law that has since criminalized dissent and silenced and jailed the opposition.
The legal system has been a crucial part of this process, and judges now have to implement the China-drafted national security law, which, among other things, denies bail to suspects held on political crimes even before they are proven guilty. All of Hong Kong’s most prominent activists, including media mogul Jimmy Lai, young protest leader Joshua Wong and others, are in detention.
Jimmy Lai was denied bail by the Court of Final Appeal, and that bail precedent has applied to the scores 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 from British parliamentarians and activists who have argued since the passage of the national security law that foreign judges have no place on the court. They argued that these judges could not act as moderating forces but were legitimizing the political repression there. Judges who oversee national security cases are handpicked, and they can be replaced after one-year terms.
“For too long, British judges have served as window dressing for the Chinese government’s brutal crackdown on all forms of political opposition in Hong Kong,” said Afzal Khan, a member of the British Parliament and of the Inter-Parliamentary Alliance on China. “This announcement is welcome and long overdue.”
An earlier version of the article misspelled Afzal Khan’s name, it has been corrected.