Arkansas Democrat-Gazette

U.K. removing its judges from Hong Kong court

- SHIBANI MAHTANI THE WASHINGTON POST

HONG KONG — Britain is withdrawin­g its judges from Hong Kong’s highest court, citing a “tipping point” where the presence of its judges would “risk legitimizi­ng oppression,” in a rebuke of the territory’s claims that its courts are independen­t of political interferen­ce.

The withdrawal could have implicatio­ns not only for those concerned about the erosion of rights and norms in Hong Kong’s institutio­ns, but also for the businesses that underpin its status as a financial center and set up base there for its predictabl­e and trustworth­y legal system.

“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 response, the Hong Kong government said the national security law was typical for any country seeking to defend itself and called the British move “appalling.”

“We take strong exception to the absurd and misleading accusation­s against the [National Security Law] and our legal system. Every country around the world would take threats to its national security extremely seriously,” the statement said.

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. 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.”

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 oneyear 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.”

AUSTRALIA, CANADA REMAIN

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 led to a 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, 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 many 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.

 ?? (AP/Kin Cheung) ?? A man wearing a mask walks past the Court of Final Appeal in Hong Kong on Wednesday.
(AP/Kin Cheung) A man wearing a mask walks past the Court of Final Appeal in Hong Kong on Wednesday.

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