Although the anti-China movement has long sought to undermine the Hong Kong Judiciary, it has had little success.
As it knows well, its fallacies about the rule of law being on its last legs will not be taken seriously while eminent judges from other common law jurisdictions continue to serve in the Hong Kong Court of Final Appeal (CFA), generating jurisprudence of the highest quality. Since 2019, therefore, the overseas judges have been specifically targeted by hostile actors.
At the forefront of the attacks on the CFA has been the ex-Conservative Party leader, Sir Iain Duncan Smith, an ideologue straight out of “reds under the beds” casting. Indeed, when the former prime minister, Boris Johnson, said it was important not to be “a knee-jerk Sinophobe on every issue”, he must have had Duncan Smith in mind. He not only rejoices in every negative news item about China, but never misses an opportunity to put the boot into Hong Kong. A Cold War throwback, he was sanctioned by China in 2021 for what it called his “lies and disinformation” about alleged human rights abuses in its Xinjiang region, and he co-founded the Inter-Parliamentary Alliance on China (IPAC), which specializes in anti-China propaganda.
It was no surprise to anybody when Duncan Smith emerged as a leading figure in the alt-right’s efforts (orchestrated by the US State Department) to force Boris Jonson’s government to exclude Huawei from the United Kingdom’s 5G technology program in 2020. He has also called for Chinese ownership of British businesses to be subject to a national security review, and led the demands for TikTok to be banned in Britain. He has accused the British prime minister, Rishi Sunak, of allowing the UK to be too submissive to China, and is always on the lookout for new opportunities to strike at Hong Kong.
On Sept 18, 2020, Duncan Smith declared that the future of all the CFA’s overseas judges, whether or not from the UK, needed to be reviewed, because they were providing “cover to what is a totalitarian regime”. He even declared that, whereas judges in the UK and Australia were “free to reach decisions without fear or favor”, this was “not the case in Hong Kong”. Although this was blatantly false, as any of the CFA’s overseas judges could have told him, his stock-in-trade is “the art of the slur”, once deployed by Joseph McCarthy in 1950s America.
Although the CFA’s 12 overseas judges initially refused to be pushed around by the likes of Duncan Smith, two buckled on March 30, 2022, and the British government, to its eternal shame, egged them on. The then foreign secretary, Liz Truss, said it was “no longer tenable” for serving British judges to sit on the CFA, as it would risk “legitimizing oppression”. If this is what she told the CFA judges, it is little wonder that two of their numbers decided to throw in the towel.
The judges in question, Lords (Robert) Reed and (Patrick) Hodge, were still serving in the UK’s Supreme Court (as, respectively, president and deputy president), and thus still on the government’s payroll, so Truss had them cornered. However, the other six British judges had all retired from the Supreme Court, meaning they were free agents and able to exercise their own conscience in the matter.
Although every effort was made to create the impression that Truss and the justice secretary, Dominic Raab, had not pressured the two judges into resigning, a different picture has now emerged. On Nov 6, 2022, when the former governor, Lord (Chris) Patten, was interviewed by the journalist, Howard Davies, on “BridLit 2022”, he suddenly blurted out that Truss had told the judges not to sit on the CFA. He then, to his credit, commented “I thoroughly disapprove of politicians telling judges what to do”, and described Truss’s remarks as “a damaging thing for her to have said”.
Although revelatory, Patten was by no means the only insider to have spilled the beans. After the resignations were announced, Benedict Rogers, the serial fantasist from Hong Kong Watch who doubles up as deputy chairman of the governing Conservative Party’s Human Rights Commission, declared that “the British government is right to have taken steps to recall them”, and this obviously corroborated Patten’s revelation.
It is clear, therefore, from what Patten and Rogers have said, that the two resignations, far from being voluntary, were engineered by Truss and Raab. This information, however, was completely suppressed when the UK government issued its latest Six-monthly report on Hong Kong on Jan 13, 2023 (even though it purported to cover the exact period when the resignations occurred, and when Truss was still foreign secretary).
If, however, the likes of Duncan Smith and Truss imagined the two resignations would have a “domino effect”, they could not have been more mistaken. The remaining British judges immediately made clear they had no intention of leaving Hong Kong in the lurch, and confirmed, without exception, that they would remain in the CFA, “defending the rule of law in critical times”.
The three Australian CFA judges also displayed similar mettle, declaring “we do not intend to resign, and we support the judges of the Court of Final Appeal in their commitment to judicial independence”.
The only Canadian CFA judge, the former chief justice, Beverley McLachlin, also pinned her colors to the mast, declaring she would remain on the CFA as it was “operating as an independent, judicial branch of government”.
These unequivocal declarations of commitment to Hong Kong and support of the CFA, coming as they did from jurists from across the common law community, were very well received by everybody who cares for Hong Kong
These unequivocal declarations of commitment to Hong Kong and support of the CFA, coming as they did from jurists from across the common law community, were very well received by everybody who cares for Hong Kong, but they were the very last thing the Duncan Smiths of this world wanted to hear, let alone the British government (which deliberately ignored them in its Six-monthly report), but worse was to come.
On Jan 13, 2023, the Judiciary announced that, subject only to Legislative Council endorsement, Patrick Anthony Keane, a 70-year-old jurist from Australia, will be joining the CFA, as a non-permanent judge. He was previously a judge of the High Court of Australia, chief justice of its Federal Court and solicitor general of Queensland, and, say insiders, he is “very highly regarded”. By any yardstick, Keane is a significant “catch” for the CFA, and he obviously has much to contribute.
When asked why he had accepted this CFA appointment, Keane explained “how successful the court has been in its role in defending the rule of law”, adding that anybody “should be very slow indeed to decline the opportunity to serve on such a successful court”. He also highlighted how the CFA has a long history as “a very successful institution that’s made an important contribution to the success of Hong Kong”, showing he had done his homework. He believed it was better to play a role rather than “vacate the field”; and, with jurists of substance like this on board, Hong Kong does not need fair-weather friends like Reed and Hodge.
It will now be fascinating to see how the British government, when it publishes its next Six-monthly report, covers Keane’s decision to join the CFA, as well as his frank assessment of its successes. If, however, its latest report is anything to go by, it will simply conceal the information from its readers, given that it finds the truth unpalatable. After all, these Six-monthly reports have long since become propaganda tools, and owe more to the likes of Duncan Smith and Hong Kong Watch than they do to honest reporting.
Indeed, in one bizarre twist, the latest Six-monthly report claims that, although Hong Kong has “retained its separate common law legal system”, that system and “the accompanying institutions remain under pressure”, which presumably includes the Judiciary. Everybody, however, now knows, courtesy of Patten and Rogers, that the pressure on the Judiciary comes not from anybody in China, but from the British government itself, as well as from its outriders like Duncan Smith. As the expression goes, “the truth will out.”
It is, of course, highly reassuring for everybody who values the rule of law in Hong Kong to see “new blood” like Keane joining the CFA from abroad, but this should be only the start. Of the existing 10 overseas judges, eight are already in their eighties, with the oldest being 88. Although there is no retirement age for overseas judges, and octogenarians still have much to offer, the CFA will undoubtedly benefit if a new generation of jurists can now be recruited.
Since 1997, the CFA’s overseas judges have all come from Australia, Canada, New Zealand and the UK. There is, however, a wealth of judicial talent available elsewhere, in common law jurisdictions like India, Ireland, Jamaica, Malaysia, Singapore and South Africa. A strong case exists, therefore, for also tapping into these talent pools, and casting the net more widely.
One thing, moreover, is now abundantly clear. The attempts by people like Duncan Smith and Truss to damage the CFA have not succeeded in the past and will not succeed in the future, even though several fainthearts have fallen by the wayside. The CFA is not only better off without such individuals, but is actually strengthened by their departure.
As Keane acknowledged, the CFA’s global stature is high, and the people of Hong Kong can rest assured that the overseas judges will continue to work in tandem with their local counterparts to uphold the rule of law and protect the “one country, two systems” principle.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.