‘The effectiveness trap’ facing foreign judges in Hong Kong’s fight for freedom|Michael Cox

Published (HKT): 2020.10.13 09:22

As the attacks on the independence of Hong Kong’s courts continue, foreign judges serving the city’s highest court face a dilemma: leave and let the Chinese Communist Party(CCP) have its way, or stay and be seen to be helping it by legitimizing a puppet government and its National Security Law(NSL).

The independence of Hong Kong’s judiciary could be the final barrier against the CCP gaining complete political control of the city, and although the majority of judges in the court of final appeal are local, the foreign non-permanent judges – all highly accomplished in common law jurisdictions – bring not only expertise, but powerful symbolism.

According to Basic Law, the Hong Kong Court of Final Appeal “exercises judicial power in the region independently and free from any interference” – an independence clearly under threat, especially since the implementation of the National Security Law with its vague definitions, political agenda and extraordinary, unchecked powers.

Even before the diabolical NSL, there was scrutiny around the role of the then-14 foreigners serving as non-permanent judges but now the pressure is increasing.

Last month the NSL sparked the resignation of Australian judge James Spigelman, who handed in his notice a day after Carrie Lam stated that Hong Kong did not have any meaningful separation of powers.

Spigelman had two years remaining on his tenure. His countryman Robert French has decided to stay, saying that he had “the greatest admiration for the chief justice and other permanent justices of that court” and “their commitment to maintaining its judicial independence.”

“I would not continue if I believed otherwise,” French said, while Canadian judge Beverley McLachlin – appointed in 2018 – has expressed similar sentiments and has stood firm.

Those staying have the support of the Hong Kong Bar Association, which this week issued a statement imploring the non-permanent judges to stay.

Head of the Bar Association Phillip Dykes described Spigelman’s departure as a “canary in the coal mine” but his concerns for judicial independence seemed more about perception and Hong Kong’s status as a financial hub than any sense of justice.

Dykes told the Financial Times that if others followed Spigelman’s departure it would send a signal to the world that there was something “seriously amiss” in the city. Well, we hate to say, but there is something seriously amiss, isn’t there?

Carrie Lam’s comments that the non-permanent judges “maintain a high degree of confidence” in Hong Kong’s system should ring alarm bells. Her comments speak to the concern that foreign judges will become nothing more than political props – props that Lam is already pointing to and saying “see, nothing amiss here.”

A group of 32 UK Lawmakers stated as much after Scottish judge Lord Patrick Hodge was announced as the replacement for Spigelman late last week. The group penned a joint letter asking for “a clear and unambiguous statement to be made as a matter of urgency” regarding the appointment.

The attacks on the independence of Hong Kong’s courts are at all levels of the system – starting with an out-of-control and unaccountable police force. The district courts are crammed with a backlog of thousands of cases brought by arbitrary mass arrests and backed by cynical cases run by prosecutors.

For a child or young adult that has been rounded up in a mass arrest, charged with rioting and potentially facing years behind bars, Hong Kong’s status as a financial hub is the furthest thing from his mind.

The direct political pressure is on judges hearing protest-related cases as well. Last month it was revealed that Stanley Ho Chun-yiu – who had slammed an officer’s testimony during the Jocelyn Chau case in August – would be moved to an administrative role in the high court after his rulings were the subject of a campaign from pro-Beijing critics. It was a strong signal to Ho’s colleagues.

This week former head of Hong Kong’s Independent Commission Against Corruption (ICAC) Tony Kwok used CCP propaganda platform, China Daily, to launch an attack on the judiciary.

Kwok called for an independent review of the judiciary but took particular aim that the court’s colonial vestiges – the furry wigs and “archaic practices and odd traditions” – and the choice of words was telling.

The wigs and robes – and foreign judges – aren’t just symbols of colonialism they are symbolic of the key difference between Hong Kong and the mainland; a court system before whom all stand equal.

It is clear that the frontline in the battle for Hong Kong’s freedom has shifted from the streets to the courts and from the barricades to right up the bench of the court of final appeal.

Hopefully the judges do not fall for what is known as “the effectiveness trap”; that is, being unwilling to resign in protest or speak up, and justifying the inaction by staying in a role in the hope of being effective. In this case the trap would be to stay and be used as symbols that there is “nothing amiss” in Hong Kong.

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