“We have seen a systematic erosion of freedom and democracy in Hong Kong,” British Foreign Secretary Liz Truss said in a statement on Wednesday. “Since the introduction of the National Security Act, the authorities have cracked down on freedom of speech, freedom of the press and freedom of association,” she said, adding that it was “unacceptable” for her country’s judges to sit in court.
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In a sharply worded response, the Hong Kong government said the national security law was typical of any country looking to defend itself, calling the British move “appalling”.
“We are deeply concerned by the absurd and misleading allegations against the NSL and our legal system. Any country anywhere in the world would take threats to its national security extremely seriously,” the statement said.
Two British judges were serving at the Court of Final Appeal, Hong Kong’s highest court, before both resigned on Wednesday in line with the UK government’s announcement.
The Court of Final Appeal is composed of permanent judges and other non-permanent judges who may be from any common law jurisdiction. Hong Kong, a former British colony, inherited the common law system, which it retained even after it was handed over to China in 1997 under the One Country, Two Systems framework.
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Under this framework and Hong Kong’s mini-constitution, the courts are said to be independent of political influence and mainland China, which has underpinned Hong Kong’s attractiveness to foreign companies.
Under the “one country, two systems” framework, Hong Kong had one of the most respected courts and judicial systems in Asia, which, unlike the mainland’s judicial system, was considered free from interference. Hong Kong is a hub for arbitration and home to many global law firms and high caliber legal talent.
The resignation of the two British judges “is a vote of no confidence in the entire political and legal environment under the National Security Act,” said Eric Yan-ho Lai, a Hong Kong legal scholar at Georgetown University’s Center for Asian Law. “Business groups would now also take the move as an indicator of the integrity of Hong Kong’s legal system.”
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Common law jurisdictions include Australia, Canada and New Zealand, and judges from all of these countries have served as non-permanent judges on the Court of Final Appeal. An Australian judge left the Supreme 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 Wednesday’s resignation. Canadian judge, former Chief Justice of the Supreme Court of Canada Beverley McLachlin, defended her decision to remain in office in an interview with Canada’s National Post in August, calling the court “perhaps the last bastion of intact democracy” in Hong Kong .
Lord Robert Reed, who is also President of Britain’s Supreme Court, said in a statement announcing his resignation on Wednesday that Supreme Court justices “cannot continue to sit in Hong Kong without appearing to form a government support that has deviated from political values freedom and freedom of expression.”
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Hong Kong was rocked by anti-government protests in 2019, sparked by fears that the legal firewall between the territory and mainland China would be undermined by a bill that would allow extraditions between the two locations. It grew into a full-scale rebuke against China and the Hong Kong government. In 2020, China bypassed the Hong Kong legislature and passed a sweeping national security law that has since criminalized dissent and silenced and jailed the opposition.
The judicial system has been a crucial part of this process, and judges must now implement China’s draft national security law, which, among other things, denies suspects arrested for political crimes bail before their guilt is proven. All of Hong Kong’s most prominent activists, including media mogul Jimmy Lai, young protest leader Joshua Wong and others, are in custody.
Jimmy Lai was denied bail by the Court of Final Appeal, and that bail precedent applies to the numerous other political activists and former lawmakers in custody. Many of Hong Kong’s key pro-democracy leaders – including lawyers, LGBTQ activists, social workers and students – have been in detention for more than a year as their trials drag on under the national security law.
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The UK decision comes after months of lobbying by UK MPs and campaigners who have argued that foreign judges have no place in the court since the passage of the National Security Bill. They argued that these judges could not act as moderators but legitimized political repression there. Judges overseeing national security cases are handpicked and can be replaced after a one-year term.
“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 Britain’s Parliament and the Inter-Parliamentary Alliance on China. “This announcement is welcome and long overdue.”
correction
A previous version of the article misspelled the name of Afzal Khan, it has been corrected.