One of the few commendable acts of former British prime minister Liz Truss’ bizarre career came in March 2022, when as British secretary of state for foreign, commonwealth and development affairs she supported the withdrawal of British judges from the Hong Kong Court of Final Appeal. With the Chinese Communist Party (CCP) tightening its grip on the territory, British Supreme Court President Robert Reed and Deputy President Patrick Hodge could no longer serve on the court in good conscience. Their presence had helped legitimize the CCP’s claim that the rule of law still existed in Hong Kong.
That the Hong Kong courts “continue to be internationally respected for their commitment to the rule of law” was not enough to quiet the impression that they were endorsing “an administration which has departed from the values of political freedom and freedom of expression,” Reed and Hodge wrote in a statement.
At the time, their departure left the Hong Kong court with six British justices, although they were retired from the UK bench, including David Neuberger, a former UK Supreme Court president.
Illustration: Yusha
In their own statement, the remaining justices acknowledged that it was a “critical time in the history of Hong Kong.” Rather than resign, they believed their “continued participation ... [would be] in the interest of the people of Hong Kong.”
Now, Neuberger has joined in a decision upholding the convictions of media tycoon Jimmy Lai (黎智英) and other democracy protesters who were arrested and prosecuted under the draconian CCP-imposed Hong Kong National Security Law.
Far from upholding rule of law, he and the other two remaining British justices on the bench — Nicholas Phillips and Leonard Hoffman — are doing the opposite, and sullying their reputations in the process.
Since the territory was handed back to China in 1997, British (as well as Australian and Canadian) justices have sat on the Hong Kong bench. While their presence was (and is) a holdover from the days of the British Empire, it also reflects Hong Kong’s continued importance as one of the world’s leading centers for settling commercial disputes.
Its commercial courts are pre-eminent legal institutions, particularly in Southeast Asia, and senior barristers from Britain and other jurisdictions frequently appear before them.
This status owes much to Hong Kong’s embrace of English Common Law, which is reflected throughout its courts. Wigged and robed barristers address robed judges in oak-paneled rooms as “my Lord” or “my Lady.”
The only indication that one is in Hong Kong rather than London is the air-conditioning — London’s Royal Courts of Justice have none.
After 1997, the CCP sought to ensure that Hong Kong’s judicial system retained its global reputation for probity. Rather than clamp down on citizens’ rights and freedoms right away, it bided its time.
To this day, leading international law firms still maintain that “Hong Kong’s unique status under the ‘one country, two systems’ regime, recognized common law legal system, and exclusive judicial mutual arrangements with mainland China makes it the ideal place for parties to resolve international disputes.”
However, China’s own priorities have changed. Since 2019, it has suffocated Hong Kongers’ rights and liberties, and has not hesitated to deploy armed militia to suppress protests.
As Chris Patten, the last governor of Hong Kong, said in late June, China has “trashed a treaty which had been lodged at the United Nations.” Instead of upholding China’s treaty obligations, Chinese President Xi Jinping (習近平) and his politburo are stamping out freedom of speech, association and religion.
If the British judges sitting in Hong Kong are to be of any use to its citizens, they must denounce this repression. Unlike their full-time counterparts, who live and work in Hong Kong, the British judges have the liberty to condemn China’s abuses.
Dissenting from judgements upholding Hong Kong’s National Security Law might be thin gruel, and it might well lead to their exodus from Hong Kong, but at least China’s abuses of power and violations of international law would be on the record. Instead, Neuberger has condoned Chinese repression.
The case in question started in 2019, during the resistance to China’s crackdown on free speech. As a leading Hong Kong media mogul, Lai was detained and held in solitary confinement from December 2020 onward, while others were convicted for participating in an “unauthorized assembly.” Their counsel argued that charges for their nonviolent action were disproportionate, and that their convictions were unconstitutional, citing two decisions by the British Supreme Court on the right to protest.
However, Hong Kong Chief Justice Andrew Cheung (張舉能) and Justice Roberto Ribeiro, writing the lead opinion, concluded that “the defendants’ proposition is unsustainable. It is contrary to all established principles governing constitutional challenges in Hong Kong.”
Worse, they added that the question of whether the court should inquire into the proportionality of “arrest, prosecution, conviction and sentence is inappropriate and uncalled for.”
The judgement exudes a sense of beleaguered dismay, as though the justices are disappointed that anyone would actually try to challenge the CCP’s totalitarian rule.
Neuberger follows in their wake, a whale shark reduced to trailing minnows. He said the court deserves praise for giving “important guidance on ... operational proportionality” concerning freedom of assembly.
He goes on to remind everyone that the “constitutional arrangements in the United Kingdom differ from those in Hong Kong.” Thus, he believes that Lai’s conviction is proportionate and should stand.
Neuberger is not wrong to contrast Hong Kong to Britain. The latter is a liberal democracy, whereas Hong Kong is “becoming a totalitarian state,” as his former colleague, Jonathan Sumption, observed in the Financial Times in June, after resigning from the Hong Kong court.
The territory is now a jurisdiction where the “rule of law is profoundly compromised,” Sumption said.
The CCP is the big winner here. It might as well engrave Neuberger’s judgement on the High Court’s edifice. A former president of the UK Supreme Court, who also chairs the High-Level Panel of Legal Experts on Media Freedom, has just concluded that a court packed with CCP apparatchiks “fully and impressively considered” the issues.
Neuberger has shamelessly done more than party propagandists ever could to create the impression — bogus to the core — that China is committed to the rule of law.
Nicholas Reed Langen, a 2021 re:constitution fellow, edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap.
Copyright: Project Syndicate
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