UK judge Lord Sumption has deemed a recent judgement against Hong Kong democrats “legally indefensible,” said judges’ freedoms have been “severely limited,” and has spoken of an “oppressive atmosphere” and paranoia among the authorities, days after he quit the city’s top court.
“Hong Kong, once a vibrant and politically diverse community is slowly becoming a totalitarian state. The rule of law is profoundly compromised in any area about which the government feels strongly,” he wrote in an explosive opinion piece for the Financial Times on Monday.
Last Thursday, the 75-year-old overseas judge quit the Court of Final Appeal, alongside Lord Collins, with the latter citing the “political situation.”
He wrote of a “growing malaise” among the judiciary, who operate in an “almost impossible political environment created by China.” The judgement in the 47 democrats case was symptomatic of the issue, Sumption added.
In 2021, 47 prominent democrats were arrested and charged under the security law with “conspiracy to commit subversion,” after they organised primaries in a bid to win the 2020 legislative election. They were accused of planning to use legislative powers to indiscriminately veto the budget, whilst forcing the chief executive’s resignation. Of the 16 pleaded who not guilty, 14 were convicted last month.
Sumption wrote that the Basic Law not only mentioned democracy as the ultimate aim, but explicitly authorities the Legislative Council (LegCo) to reject the budget and – if done twice – force the city’s leader to resign: “The [ruling’s] result is that Legco cannot exercise an express constitutional right for a purpose unwelcome to the government… The fact that the decision is legally indefensible does not necessarily mean that the rule of law is dead. The appeal courts may yet put it right.”
‘Almost impossible political environment’
Sumption – who had served on the top court since 2019 – laid out three problems facing the judiciary, starting with the 2020 national security law: “This illiberal legislation does not entirely curtail the judges’ freedom of action but it severely limits it. Judges have to apply the law.” The second issue was Beijing’s power to intervene and “interpret” laws “if China does not like the courts’ decisions.”
Thirdly, he said the authorities acted with paranoia, and there were already adequate laws to deal with the 2019 protests and unrest. The security law was used to “crush even peaceful political dissent” as a response to the threat of a pro-democracy majority at the legislature.
“An oppressive atmosphere is generated by the constant drumbeat from a compliant press, hardline lawmakers, government officers and China Daily, the mouthpiece of the Chinese government,” he wrote. “A chorus of outrage follows rare decisions to grant bail or acquit. There are continual calls for judicial ‘patriotism’. It requires unusual courage for local judges to swim against such a strong political tide. Unlike the overseas judges, they have nowhere else to go. Intimidated or convinced by the darkening political mood, many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it.”
He said only lip-service is paid to guarantees of freedom: “The least sign of dissent is treated as a call for revolution. Hefty jail sentences are dished out to people publishing ‘disloyal’ cartoon books for children, or singing pro-democracy songs, or organising silent vigils for the victims of Tiananmen Square.”
Last week’s resignations came four days after an investigation by The Independent revealed that British judges were paid £40,000 (HK$399,225) per month to sit on the top court, with flights, accommodation and travel also expensed. The news also came three weeks after NGO, the Committee for Freedom in Hong Kong Foundation, released a report claiming “foreign judges are lending legitimacy to Beijing’s crackdown on political freedoms in Hong Kong,” as they called on them to step down.
Sumption on rule of law in 2021
The presence of international judges has historically given credibility to Hong Kong’s common law legal tradition.
Lord Sumption was involved in a case surrounding the definition of rioting following the 2019 protests and unrest.
He was celebrated in China’s state-run press in 2021 after he wrote in a letter to The Times, saying that “[d]emocracy has never existed in Hong Kong, but the rule of law has and still does… As a Hong Kong judge I serve the people of Hong Kong. I must be guided by their interests, and not by the wishes of UK politicians. I intend to continue on the court.”
The former Justice of the UK Supreme Court was responding to earlier calls for British judges to quit Hong Kong’s top court.
In addressing his resignation in the op-ed on Monday, he said: “I remained on the court in the hope that the presence of overseas judges would help sustain the rule of law. I fear that this is no longer realistic.”
Lord Robert Reed and Lord Patrick Hodge resigned from the Court of Final Appeal in March 2022. Last Thursday’s resignations leave just three other British judges sitting on the top court – they include Lord Lennie Hoffmann, Lord David Neuberger, and Lord Nick Phillips.
HKFP has asked the judiciary and Department of Justice to comment.
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