How the British Government Mishandled the Resignations of its Hong Kong Judges

And what we can learn from it

Hi. How you been? In the event you haven’t heard, I lost my High Court appeal and spent most of February and March in prison, before being deported to the US last week. I had planned to get out and immediately write a few articles about life behind the wall, but I’m taking some time to process that experience first. In the meantime, I’ll keep putting out articles about Hong Kong’s legal and political developments.

As always, my posts are free, but my work is supported by optional paid subscriptions. If you find these articles worthwhile, please consider signing up for a free or paid subscription.

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Hong Kong’s Court of Final Appeal Building

Since the UK handed Hong Kong to China in 1997, foreign judges have sat alongside local ones on the territory’s highest court, the Court of Final Appeal (or CFA). Until a few days ago, there were 12 such judges. But on March 30, two senior British judges, Robert Reed and Patrick Hodge, resigned. Just after 9:00 a.m. that morning, British Foreign Secretary Liz Truss released a statement declaring that she had “concluded that it is no longer tenable for British judges to sit on Hong Kong’s leading court.” Five minutes later, in a statement issued on behalf of himself and Lord Hodge, Lord Reed wrote that the pair had concluded that they “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, to which the Justices of the Supreme Court are deeply committed.” Nonetheless, Reed went on to insist, “the courts in Hong Kong continue to be internationally respected for their commitment to the rule of law.”

While few honest people would question that the Hong Kong Government has departed from the values of political freedom, readers of this newsletter know that “commitment to the rule of law” by the Hong Kong court system is also under serious threat. And judges don't typically resign because of government misconduct; a judge’s response to bad behavior by government officials is to rule against those officials and rein in their behavior, not to resign.

Not long after these two odd and conflicting statements, every other foreign judge on the CFA doubled down on their intention to stay on the court, cutting off the British Government’s messaging efforts at the knees. The three Australian judges declared that they “do not intend to resign and…support the judges of the Court of Final Appeal in their commitment to judicial independence.” And the only Canadian judge, Beverley McLachlin, said that the CFA “is operating as an independent, judicial branch of government – perhaps the last surviving strong institution of democracy.”

Lord Reed

Suffice to say, none of these statement reflect the reality of a court system whose fealty to rule of law has been steadily eroding for some time. So why did Lord Reed, along with the other foreign judges on the Court, go out of their way to insist that the courts were still operating within normal bounds, despite all evidence to the contrary?

The most likely answer, unfortunately, is that both the resignations and accompanying statements were issued without the necessary preparation and groundwork by the British Government, leading to overcompensation and backlash by Reed and Hodge, as well as by the other foreign judges.

As a result, the Hong Kong and Chinese Governments, along with their propagandists in state media (none of which I will link to) have had plenty of material to latch onto in their efforts to minimize the significance of the resignations. Further, the clumsy efforts have opened up the British Government to charges of hypocrisy and political meddling, and given cover to those officials in Hong Kong and Beijing seeking to further co-opt and corrupt the Hong Kong Judiciary.

Should Hong Kong’s foreign judges resign? Perhaps, but it’s a close call.

Before getting into the botched resignations, it’s important to think through whether it makes sense for foreign judges to leave the Court at all under current circumstances. It’s an age-old dilemma: When does a member of a beloved institution that has lost its way stop trying to right the ship and throw in the towel? At what point does the message that can be sent by resigning outweigh the good that can be done by remaining on board?

The foreign judges of the Hong Kong CFA have, no doubt, long asked themselves the same question. On the one hand, in trials against the Government’s political opponents, many lower court judges and magistrates have crossed well beyond the line of appropriate judicial behavior, such as by rewriting or manufacturing evidence, advocating criminal violence from the bench, or declaring that simply existing as a famous opposition figure constitutes incitement of crime.

However, the state of the CFA itself is more ambiguous. On the one hand, its justices have not committed clear misconduct from the bench like their underlings. On the other, they have consistently failed in their duty to fully analyze and defend the Basic Law (Hong Kong’s constitution), the Hong Kong Bill of Rights, and international human rights treaties, and seem to have no appetite for standing up to the Beijing-controlled government’s efforts to undermine rule of law in the territory. Additionally, separate from its legal decisions, the CFA has failed its obligation to monitor, investigate, and discipline lower court judges when they act improperly.

Nonetheless, it is still possible to obtain positive, if conservative, rulings from the CFA. Just a few months ago, for example, the CFA (with a panel that included one foreign judge, Lord Sumption) struck down an absurd effort by the Department of Justice to expand rioting and unlawful assembly charges to those not even present at the scene. As a result, the political defendants in those cases, as well as an unknown number in other potential cases, walked free. And in January this year, the Court issued a ruling in which it expressed concern about the indefinite detentions of national security suspects without trial (though without ruling on the issue).

Therefore, there is still some small chance of obtaining positive results from the CFA. With so many political prisoners still awaiting trial or sitting in prison with their cases under appeal, that small chance is nothing to scoff at. When I was in prison, I met many political prisoners wrongly convicted or wrongly sentenced in a range of non-NSL cases, most commonly for charges of rioting, public assembly, and assault on a police officer. In some of these cases, lower court judges had ignored exculpatory evidence, and in nearly all of them, the sentences were unduly harsh. Many of these prisoners are currently appealing to higher courts, and could eventually reach the CFA. Their best hope for a reversal and release from prison lies in the foreign judges at the CFA. If they all resign, that avenue will be cut off.

On the other hand, the Hong Kong and Beijing governments frequently use the presence of foreign judges to claim that Hong Kong’s rule of law is alive and well. They claim that these international judges mean Hong Kong is still an international city, well-regarded by foreign business and government interests, and still playing by the rules of the international economic and political system. For those of us closely watching Hong Kong’s political deterioration, these lies can be hard to bear.

So, should the judges resign? Eventually, as Hong Kong continues to slide further into authoritarian repression, they almost certainly should. But for now, it’s still a tough call, and while I lean towards resignation, I don’t think it’s a cut and dry decision.

Whatever the merits of last week’s resignations, the British Government mishandled the process

For the resignations to be effective in drawing attention to the erosion of rule of law, the decision would need to have been made voluntarily by the judges, and any grounds given for the resignations would need to emphasize this erosion.

Unfortunately, that’s not how it went down. As I discussed above, Lord Reed released a statement criticizing only the Hong Kong Government, while simultaneously defending the independence and impartiality of the Hong Kong courts. And the near-simultaneous statement by British Foreign Secretary Liz Truss indicated a coordinated action with UK political authorities. Truss was careful to say only that she and the government “welcome and support” the resignations, but taken together with the statement from the judges themselves, it seems it was the UK political establishment, not the judiciary, that decided the judges should resign. No one seems to have gotten the judges themselves fully on board before acting. As a result, the judges aired their protest via their own statement and undermined the message.

British Foreign Secretary Liz Truss

The way the resignations played out also exposed the British to charges of hypocrisy from the Hong Kong and Chinese governments (and their state media enablers): after years of the Brits raising the alarm about Hong Kong’s erosion of judicial independence, the British Government itself was, rightly or wrongly, perceived to have compelled two of its own independent judges to take an action they apparently did not want to take. The result was a public relations failure: an opportunity to draw attention to the erosion of rule of law instead focused on the twelve foreign judges’ unjustified defense of it, and on the perceived double standards of the British Government.

What can we learn from these missteps?

As a movement, there are a few lessons we can take away from this misstep.

First, we have to continually remind our government allies that there are still Hongkongers in danger in the city, and urge them to be thoughtful and delicate in how they balance our long-term goals against the short-term effect on Hongkongers in and out of prison.

Second, we should remember that our allies in Western governments often have different incentives than we do as a movement. Even in foreign policy, Western political leaders usually act based on domestic concerns. While we are focused on the eventual liberation of Hong Kong and its people, and our government allies surely agree in broad terms with this goal, their prime focus extends only to the next election. The approach that the UK Foreign Office used was designed to score points amongst domestic voters, and may have even been successful in doing so, but it doesn’t get us any closer to our goals for Hong Kong and may have been counterproductive.

Finally, while we understandably view Chinese and Hong Kong state media with contempt, we have to acknowledge their talent at exploiting any weaknesses in our approach to great effect. As averse as we may be to do so, we must anticipate how our movement’s actions will play out in their media, and seek to minimize opportunities for them to score cheap points.

We’re playing a long game against a sophisticated opponent, but patiently building the support we need and waiting for the right opportunities to strike is how we’re going to win it.