Hong Kong’s top judge has defended the city’s rule of law, saying its courts are not “an extension of prosecution authority.” It comes after high-profile national security cases have drawn international criticism over the judiciary’s independence.
Chief Justice Andrew Cheung on Monday also addressed the departure of foreign judges from the city’s top court, saying the recruitment of overseas jurists had become less “straightforward” due to “geopolitical headwind.” But he maintained that judicial independence in Hong Kong had not been weakened.
“Judges come and go. But our system is built on legal principles, judicial precedents, and a robust structure that will continue to function. The presence or absence of individual judges, whilst important in its own right, will not undermine the integrity of the system,” Cheung said at Monday’s ceremonial opening of the legal year.
The top judge’s comment came after five overseas non-permanent judges departed from the Court of Final Appeal (CFA) last year. UK judge Jonathan Sumption, one of those who resigned from the top court, said at the time that “the rule of law [in Hong Kong] is profoundly compromised.”
See also: Why do foreign judges sit on Hong Kong’s top court?
Cheung on Monday criticised the “orchestrated harassment and pressures” against the city’s overseas judges, saying it was “indicative of how politicised” the position had become, and “reflective of the underlying geopolitical tensions.”
But he maintained that the overseas jurists’ “premature departures do not mean a weakening of the quality or independence of the judiciary.”
“It is true that, given the current geopolitical headwinds, recruiting overseas judges with the right stature and experience may be less straightforward than it once was,” Cheung said. “Still, the Court of Final Appeal continues to include both highly esteemed overseas and local non-permanent judges… speaks to the enduring strength and resilience of the court.“
The presence of international judges has historically given credibility to Hong Kong’s common law legal tradition.
National security cases
High-profile national security cases in Hong Kong have drawn international criticism of the city’s courts, including one in which 45 pro-democracy figures were sentenced for up to 10 years in jail for conspiring to commit subversion.
The chief justice said on Monday that national security cases, despite attracting attention due to their “political sensitivity,” were no different from other cases processed by the city’s courts.
“The same principles of law apply in national security cases as in others,” Cheung said. “Judges at all levels are expected to, and indeed do, adhere to them in the adjudication of cases.”
“Judges, far from being designed to serve political ends, are bound by legal principles. Courts are not arbiters of public opinion, nor are they an extension of the prosecution authority; they are, above all, guardians of the law,” he added.
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.
Speaking at the same event on Monday, Secretary for Justice Paul Lam also criticised overseas pressure on the city’s overseas judges, while highlighting the presence of those who had stayed on the top court.
Currently, there are six overseas judges on the top court. Judge James Allsop from Australia was appointed as a Court of Final Appeal [CFA] judge last year, while UK judge Leonard Hoffman, 90, recently extended his term on the apex court for another three years.
“The participation of eminent foreign judges in the work of the CFA does not only benefit Hong Kong, but also the common law world as a whole,” Lam said, adding that other common law jurisdictions’ courts reference CFA judgements.
Victor Dawes, chair of the Hong Kong Bar Association, said some international criticism against the city’s judiciary over its handling of national security cases was “unfair” and ill-intentioned, but added that such comments were met with the government’s rebuttals “using equally strong language.”
“At the end of the day, action speaks louder than words. Our administration must demonstrate that we are a jurisdiction where the rights of citizens are respected… Powers under our new national security legislation should be used in a considered and proportionate manner,” Dawes said.
Later this week, Dawes is set to step down as chair of the Bar Association following a three year tenure.
Separate to the 2020 Beijing-enacted security law, the homegrown Safeguarding National Security Ordinance targets treason, insurrection, sabotage, external interference, sedition, theft of state secrets and espionage. It allows for pre-charge detention of to up to 16 days, and suspects’ access to lawyers may be restricted, with penalties involving up to life in prison. Article 23 was shelved in 2003 amid mass protests, remaining taboo for years. But, on March 23, 2024, it was enacted having been fast-tracked and unanimously approved at the city’s opposition-free legislature.
The law has been criticised by rights NGOs, Western states and the UN as vague, broad and “regressive.” Authorities, however, cited perceived foreign interference and a constitutional duty to “close loopholes” after the 2019 protests and unrest.
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