Former UK judges Lord Collins of Mapesbury and Lord Sumption have reportedly resigned from their positions as judges in the Hong Kong Courts. The former UK Supreme Court justice Lord Sumption has, according to the Financial Times, promised to make a statement “in due course.”
The news of Lord Collins’s resignation was broken Thursday morning by Joshua Rosenberg KC in his blog A Lawyer Writes, and this was shortly followed by news from the Financial Times of Lord Summation’s resignation.
This development comes in the wake of a report released by The Committee for the Freedom of Hong Kong titled “Lending Prestige to Persecution: How Foreign Judges are Undermining Hong Kong’s Freedoms and Why They Should Quit.”
The report shed light on the presence of Commonwealth judges presiding over courts in Hong Kong, now under the control of the Chinese Communist Party (CCP), following the handover of Hong Kong on July 1, 1997. Lord Sumption, who began his tenure as a Hong Kong judge on December 18, 2019, made the decision to resign amidst the evolving political situation in Hong Kong. The departure of Lord Collins of Mapesbury, a former UK Supreme Court justice and member of the Hong Kong court since 2011, further emphasises the concerns surrounding judicial independence and political influence in Hong Kong.
Alyssa Fong, co-author of the report by The Committee for the Freedom of Hong Kong told JURIST, “We are delighted to hear that these two judges have resigned. There should be no foreign judges in Hong Kong to give the authoritarian crackdown any air of credibility. We hope that the remaining judges follow suit and resign immediately.”
Despite their resignations, Lord Collins and Lord Sumption expressed their continued confidence in the Court of Final Appeal and the independence of its members. However, the presence of non-permanent judges from the United Kingdom, including Lord Hoffmann and Lord Phillips of Worth Matravers, raises questions about the role of foreign judges in Hong Kong’s legal system.
In addition to the recent resignations of Lord Collins and Lord Sumption from their roles as judges in Hong Kong, further details have emerged regarding the involvement of British overseas Non-Permanent Judges (NPJs) in significant legal cases in the region. The direct involvement of overseas NPJs in cases of political persecution has raised concerns about their role in upholding the rights of individuals in Hong Kong. The assertion that their presence on the court protects the rights of Hong-kongers has been called into question, with allegations that NPJs have either been complicit in or actively participated in persecution. The implications of these actions are significant, highlighting the complexities and challenges surrounding foreign judges’ engagement in legal matters within a politically charged environment.
In 2021, the Court of Final Appeal agreed to hear two rioting appeals jointly, exploring the legal definitions and implications of rioting charges in Hong Kong. The cases involved considerations of what constitutes participation in a riot and the applicability of “inchoate” offences like joint enterprise to rioting cases. Lord Sumption was assigned as one of the five judges to hear the appeal and participated in the unanimous decision rendered by the CFA.
The ruling in the case upheld convictions in one instance while acquitting in another but established a precedent that individuals who do not actively breach the peace or are not physically present at a riot can be convicted of rioting. The judgment reinforced the idea that those who facilitate, assist, or encourage riots can be convicted, even if they are not at the scene. This broad interpretation of rioting has led to the sentencing of numerous nonviolent protesters to lengthy prison terms, with British involvement adding credibility to the government’s crackdown on dissent.
It is crucial to note that Lord Sumption’s name on the judgment played a pivotal role in providing the government with the credibility necessary to justify its crackdown on dissent. By participating in the ruling that broadened the definition of rioting to encompass both violent and nonviolent protesters, as well as those who support the protests from afar, Lord Sumption inadvertently contributed to the government’s ability to take stringent actions against individuals involved in protests, the report suggests.
The ruling set a significant precedent by affirming that individuals who do not actively breach the peace or are not physically present at a riot can still be convicted of rioting. While the court clarified that the concept of “joint enterprise” cannot be applied to reach individuals who were not at the scene of the riot, it emphasized that individuals who facilitate, assist, or encourage riots can be prosecuted, even if they are not directly involved in the protest.
Lord Sumption’s involvement in this ruling, along with other British overseas Non-Permanent Judges (NPJs), highlights the complexities and ethical dilemmas surrounding foreign judges’ engagement in legal decisions within a politically charged context. The unintended consequences of their participation in cases of political persecution shed light on the challenges of balancing judicial independence with upholding human rights and the rule of law in a complex and evolving legal landscape.
The report suggests in its recommendations that:
The remaining overseas NPJs should step down from the Hong Kong Court of Final Appeal due to the severe erosion of human rights, judicial independence, and rule of law in Hong Kong. They would be following in the footsteps of their three colleagues who stepped down in 2022 due to concerns that their presence on the court was legitimising Hong Kong’s authoritarian regime.
The resignations of Lord Collins and Lord Sumption mark a significant moment in Hong Kong’s legal history and raise important questions about the role of foreign judges in safeguarding judicial independence and upholding the rule of law, as well as the role of foreign judges in upholding the rule of law as core pillars of democracy the world over. The need for ongoing vigilance and action to protect the freedoms of the people of Hong Kong remains paramount in the face of evolving political dynamics and threats to the city’s autonomy. However, with UK judges Lord Hoffmann, Lord Neuberger and Lord Phillips of Worth Matravers still active it remains to be seen if they will resign.
The author of this article consulted on the recommendations issued in The Committee for the Freedom of Hong Kong’s report.
