This blog is authored by Alyssa Fong, Public Affairs and Advocacy Manager at the CFHK Foundation and co-author of the report "Lending Prestige to Persecution.”
In a summer of resignations from the Hong Kong Court of Final Appeal (HKCFA), the remaining judges are looking particularly isolated. With five judges stepping down this year, it is now impossible to ignore the cracks in Hong Kong’s judicial foundation.
The “prestige” foreign judges once brought to the CFA has outlived its purpose. It is getting increasingly hard for the remaining judges to defend their positions when their own legal echo chamber is filled with dissent.
One of the most vocal resignations was that of Jonathan Sumption, who expressed profound disappointment with the rule of law in Hong Kong. When the words “Hong Kong’s rule of law is in grave danger” and Hong Kong is “sliding into totalitarianism” come from a newly resigned judge, you must ask yourself how the remaining judges justify their positions to themselves.
Sumption admitted failure of his belief that the presence of foreign judges could help sustain the rule of law. Not even the most well-meaning judges can counter the influence of the Chinese Communist Party, so why do the remaining judges allow themselves to become puppets for them?
The remaining judges are comprised of two British law lords, and four Australians. They all believe the controversy over their positions will blow over, but last week demonstrated that they cannot hide from the reproval of their choices, even in their own countries.
Last week in Sydney, a speech made by Australian judge, Patrick Keane, was met with protest over his continued presence on the Hong Kong Court of Final Appeal. Since the implementation of Beijing’s draconian National Security Law, only Australians have joined the Court – Patrick Keane and James Allsop.
By the time of their appointments, press freedom in Hong Kong had dramatically eroded. Authorities had effectively dismantled the remnants of the pro-democracy movement, going so far as to arrest individuals for acts as simple as waving flags or wearing shirts containing ‘unacceptable’ slogans. By 2023, prominent pro-democracy figures, such as Jimmy Lai and Chow Hang-tung, were languishing in jail on trumped-up charges. In this context, Keane and Allsop’s decision to join the Hong Kong Court of Final Appeal raises questions: are they genuinely unaware of the severe crackdown on Hong Kong’s civil liberties, or are they knowingly turning a blind eye for profit? For jurists of their stature, ignorance of Hong Kong’s rapid decline seems implausible, bordering on wilful negligence.
The Hong Kong Government’s desire to keep foreign judges is not rooted in any genuine desire to keep this vestige of colonialism, or respect for their international expertise. Rather, these foreign judges are being used to create a veneer of impartiality on the bench. Their names and their nationalities are being used only as symbols of validation for Hong Kong’s crackdown.
Keane once remarked that only those “who have suffered an adverse decision in court can feel averse to the system.” However, last week’s protest in Sydney revealed that far more people harbour discontent with Hong Kong’s system than he believes.
Robert French, another distinguished Australian judge celebrated for his advocacy on behalf of Indigenous Australian rights, has earned widespread respect for his dedication to justice and equality within Australia. Yet, his silence on human rights issues with regards to the pro-democracy movement in Hong Kong—raises questions about the consistency of his commitment. More than mere silence, his active role within Hong Kong’s judiciary suggests that his selective stance on human rights falters outside Australia’s borders and post-retirement.
While Australia celebrates its commitment to free speech, freedom of assembly, and the right to protest, Australian judges like Patrick Keane, James Allsop, Robert French, and William Gummow who continue to serve in Hong Kong, are tacitly condoning a judicial system that enforces the exact opposite. Their silence on Hong Kong’s repression of these rights effectively allows their reputations to be exploited to justify the Hong Kong government’s persecution of its own people.
The summer of resignations is a sobering reminder that the presence of foreign judges is only lending credibility to a compromised judicial system in Hong Kong, nothing more. All foreign judges should step down and stop lending prestige to persecution.
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