Calls for UK judges to quit are 'out of order'

Top News | 19 Mar 2021

Michael Shum

Calls for British judges to withdraw from Hong Kong's highest court disregard the difference between democracy and the rule of law, a nonpermanent judge of the Court of Final Appeal says.

Jonathan Sumption wrote in a letter to The Times: "The problem about these demands is that they do not distinguish between democracy and the rule of law. Democracy has never existed in Hong Kong, but the rule of law has and still does."

Calls for British judges to quit the Hong Kong system have intensified since changes to the electoral system were introduced by the National People's Congress last week.

But Sumption noted there was no fully elected legislature in Hong Kong under colonial rule and there was only partial democracy in the two years before the handover in 1997.

The colony's courts were independent, he added. It was just that the legislation they applied was not democratic.

"No one regarded this as inconsistent with the rule of law or the participation of British judges," Sumption said.

He said the most important British legacy to Hong Kong was not democracy but "an impressive" legal system. "Successive chief justices have made this clear in public statements. These statements are not just lip service. They represent the convictions of experienced, courageous and independent-minded judges.

"Their professional lives have passed in upholding traditions that Hong Kong shares with other common law jurisdictions. They deserve to be supported, not abandoned by their overseas colleagues."

Sumption said the central and the SAR governments have done nothing to interfere with the independence of the judiciary, and while controversial the security law still contains "guarantees of human rights."

The panel of judges authorized to hear security law cases was also drawn up on a noncontentious basis in consultation with the chief justice, Sumption said.

"Naturally these provisions are worthless unless they are respected," he added.

"But the best guarantee they will be respected is an independent judiciary. The least that Britain can do now is to avoid undermining it."

Sumption said calls for the withdrawal of British judges has nothing to do with judicial independence or the rule of law but were intended to pressure Beijing to change its position on democracy.

"It is not a proper function of judges to participate in political boycotts," he said.

"They will serve the cause of justice better by participating in the work of Hong Kong's courts.

"As a Hong Kong judge I serve Hong Kong people. I must be guided by their interests and not by the wishes of UK politicians. I intend to continue on the court."

Robert Reed, head of UK's Supreme Court and a nonpermanent judge in Hong Kong's top court, said senior London figures said he should quit.

Reed said he will leave if Hong Kong's situation reaches a point that they can no longer "serve with conscience."

He said he will meet Foreign Minister Dominic Raab and Lord Chancellor Robert Buckland to review the appointment of British judges to Hong Kong's Court of Final Appeal. Reed also told parliament members: "You can be assured that I won't allow the Supreme Court's reputation to be put at risk."

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