Opinion | Should we consider the British judges' resignation as a joke of separations of power in UK governance?

By Edward Hei Leung, LegCo Member

Lord Robert Reed and Lord Patrick Hodge have recently resigned from non-permanent judges of Hong Kong's Court of Final Appeal. Lord Reed is now the president of UK Supreme Court whereas Lord Hodge is the deputy president. Sad but true, two senior British judges' exits is a significant intervention by British administration into our city's judicial system.

In fact, Lords Reed argued that he cannot endorse an administration deviated from values of political freedom and freedom of expression. Shortly after the resignation, Elizabeth Truss, UK Foreign Secretary, issued her public statement immediately, describing that the situation had reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong's leading court. Yet, National Security Law (NSL) was enacted in mid-2020, not to mention the Court of Final Appeal only handling one NSL-related bail condition. Why did Lords Reed and Hodge feel comfortable previously? It is questionable whether they have sacrificed legal professionalism under political pressure.

Nathan Law, who is currently wanted by the National Security Department, welcomed the UK decision, though it came too late. Law further called the remaining British and overseas judges to resign. Aside from Nathan Law, some commentators believed that Boris Johnson, whose popularity decrease due to his party-gate scandal, is now playing the anti-China card for his coming local elections. Ironically, after Truss and Raab's political announcements, nine non-permanent foreign judges from Britain, Australia and Canada jointly issued a statement in which they were entirely satisfied with the independence and integrity of the Court of Final Appeal. In light of this, whatever the reasons behind Lords Reed and Hodge's decision, their resignation looks weird in terms of legal grounds.

Chinese Foreign Ministry criticized the UK administration of its Blatant interference into China's internal affairs. Meanwhile, former Chief Executive Leung Chun-ying said that it is a stain on the British judicial independence that can't be washed off, which is also a bankruptcy announcement of the UK's separation of powers and a joke for the international community. That is to say, it will be wise for UK itself to look in the mirror first, when discussing the independence of Hong Kong's judicial system.

Let us trace back to 1997, the handover of Hong Kong to China. Our motherland authorized Hong Kong to appoint foreign judges to uphold the city's common law status and international law exchanges. Unlike colonial era, Hong Kong enjoys independent judicial power including that of final adjudication. It shows that central government is open-minded, willing to see a thriving city under One Country, Two Systems in comparison with the British administration.

Needless to say, the geopolitical situation has changed, particularly when Five Eyes Alliance holds a hostile attitude towards China and HKSAR. The resignation of Lord Reed and Hodge is in turn a good opportunity for us to examine future appointment of foreign judges. Legal experts suggest that the city can consider either gradually letting foreign judges leave our juridical system or appointing more qualified judges from regions like Singapore and South Africa, where they have common law jurisdictions similar to Hong Kong.

The views do not necessarily reflect those of DotDotNews.

Read more articles by Edward Hei Leung:

Opinion | The collapse of Great Britain? Global leaders look down on Boris Johnson

Opinion | Russia-Ukraine war enables western fake news industries to blossom again