Let them be the judge of what's right | To the Point | Cheng Huan

The resignation of two eminent British judges from our court of final appeal has, most unfortunately but perhaps inevitably, caused a fuss.

They are serving members of the British supreme court but all the other six British judges on the CFA no longer work. They are all retired and most of them have said they will not resign from the CFA. So what are we to make of this?

I suppose the only logical conclusion is the two judges has been told to resign and have perhaps succumbed to political pressure from the British government.

If that is the case it raises an unfortunate dilemma as the UK's judiciary is reputedly totally independent. How come it has capitulated to the dictates of the government? The British foreign secretary's recent comments appeared to admit such was the case.

I am also puzzled by the contradictory explanations of these eight judges.

The two who resigned said the 2020 national security law violated Hong Kong's "high degree of autonomy by also requiring the judiciary to enforce the central government's laws and values."

With perfect timing Britain then presented to parliament a report that alleges Hong Kong's legal system has "deteriorated beyond the point where it is acceptable" for British judges to sit on the CFA.

How strange it was then that a clear majority of the remaining six British judges put out a notice saying the exact opposite.

They declared their continuing faith and confidence in the integrity of the CFA.

Such was the opinion even of Lord Phillips, who in 2009 was the inaugural president of the British supreme court.

Another luminary, Lord Hoffman, a renowned expert on human rights who once famously declared he was never biased ("I am a lawyer. I do things as a judge") agreed with Lord Phillips.

Also in agreement was Lord Sumption, a polymath who was the first lawyer in British history to be appointed to the supreme court without ever having been a full time high court judge.

Between them these three retired judges have more than 100 years of legal experience. It matters hugely that they declared they are "entirely satisfied with the independence and integrity" of the CFA and its duty to maintain the rule of law and to review the acts of the executive. Such an explicit declaration of faith in the independence and integrity of the CFA looked like a nasty slap in the face of the British government.

As expected, Beijing and Hong Kong were unanimous in their response.

The Chinese Foreign Ministry accused the UK of involving itself in a game of change by "playing the BNO card, judge card, sanction card" and reiterated that China is the "creator, enforcer and defender" of one country, two systems.

How ironic it is that Britain has made a political issue out of a judicial structure that has served Hong Kong so well for 25 years.

It must be remembered that the arrangement for foreign judges to sit on the CFA was an exceptional and very generous gesture by Beijing. What other countries would allow foreign judges to sit in judgment of domestic affairs? In this part of the world I can only think of tiny energy-rich Brunei, which still allows British and Singaporean judges to sit occasionally in its courts.

Happily, there are more than enough foreign judges from other common law countries who continue to sit on the CFA.

As long as one country, two systems continues foreign judges must be welcomed to enrich our judicial independence.

The resignations of those two judges, apparently at the behest of politicians, is very regrettable. It has done more harm to Britain's reputation than Hong Kong's.

There is no reason the CFA cannot continue to enjoy our full confidence and respect.

Cheng Huan is an author and a senior counsel who practices in Hong Kong