This blog is authored by James Joseph, Managing Director at the Duty Legacy.

In the last week, the role of British judges in Hong Kong’s judiciary has come under intense scrutiny, in upholding the sham prosecutions of Jimmy Lai and prompting a critical examination of their ethical stances as they navigate a landscape marked by political repression and civil liberties violations. Central figures in this discourse, Lord Phillips and Lord Neuberger, highlight their hypocrisy as British Judges, thought of as bastions of judicial independence, and the rule of law who have left their reputations in tatters, and their moral integrity being questioned.

As Lord Phillips approaches his resignation from the Hong Kong Court of Final Appeal, his previous statements advocating for humane treatment of prisoners contrast sharply with the realities facing political prisoners in Hong Kong such as Jimmy Lai and Martin Lee.

Adding complexity to this moral landscape, Lord Neuberger recently announced his resignation from the Chair of the High-Level Panel of Legal Experts on Media Freedom. In his resignation letter, he articulated that it was undesirable for his position as a non-permanent judge in Hong Kong to distract from the vital work of advocating for media freedom.

This decision raises eyebrows, as it implies a willingness to remain part of a judicial system that is actively prosecuting a British citizen, Jimmy Lai, a pro-democracy, newspaper owner, amidst escalating restrictions on media and civil liberties.

The irony in Lord Neuberger’s decision is potent. He has previously expressed concerns regarding the loss of independent media as an essential threat to democracy. Yet, his participation in a legal framework that propagates oppressive measures against pro-democracy figures creates a jarring dissonance between his stated commitments and his actions. The CFHK Foundation promptly criticized Neuberger’s choice to oversee appeals tied to heavy political repression, suggesting that he should resign from a system regarded as increasingly discredited.

Additionally, the prevalent financial incentives tied to judges’ roles in Hong Kong cannot be overlooked. Clearly, UK judges receive significant remuneration, which complicates their impartiality and fosters speculation that their continued presence may bolster the legitimacy of a faltering legal system. In the aftermath of Hong Kong’s handover to China in 1997, the inclusion of British and Commonwealth judges aimed to safeguard the city’s judicial reputation. However, instead of challenging authoritarian measures, judges like Neuberger have inadvertently validated a repressive judicial apparatus that undermines their own country’s standards of justice.

The consequences of such endorsements manifest starkly in the ongoing treatment of pro-democracy figures like Jimmy Lai, whose cases symbolize the broader struggle for human rights and legal autonomy in Hong Kong. Neuberger’s decision to uphold convictions rooted in political repression raises formidable questions about the role of international judges in jurisdictions where established legal norms are systematically eroded.

While serving within such a compromised legal system, judges risk perpetuating the façade of the rule of law that the CCP increasingly exploits to legitimize its actions. Neuberger’s actions may unwittingly bolster the Chinese narrative that their system upholds legal propriety, granting a semblance of endorsement where there should be critical opposition.

Ultimately, the legacies of Lords Phillips and Neuberger are at a crossroads, tethering their reputations to decisions that resonate far beyond Hong Kong’s borders. The moral responsibilities of such figures demand introspection and a reevaluation of their roles in an environment where justice is increasingly eclipsed by political expediency.

The crux of the issue is that by lending their credibility to Hong Kong’s judicial process, British judges are effectively providing political cover for a system that has become increasingly authoritarian and intolerant of dissent. This is not just a matter of individual hypocrisy, but a systemic problem that threatens to undermine the reputation of the British legal system as a whole. Neuberger’s actions could open the floodgates for other British judges to be hired by countries with questionable human rights records, further eroding the independence and integrity of the judiciary.

British judges have participated in Hong Kong’s Court of Final Appeal since 1997 to help preserve the rule of law and provide expertise, thereby reinforcing local confidence, particularly among businesses and international observers. However, their presence risks appearing as a tacit endorsement of a system that critics claim subjugates human rights.

The paradox is no clearer in the oath they take to the People’s Republic of China, a regime known for egregious human rights abuses against Uyghurs, Tibetans and the people of Hong Kong :

I swear that, in the Office of a Judge/a judicial officer of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.

The duty of British judges in Hong Kong is clear: they must stand up for the rule of law and the principles of justice, even in the face of immense political pressure. Anything less than a principled stand risks irreparable damage to the reputation of the British legal system and the values it is meant to represent.

It is time for Lord Neuberger and his fellow British judges in Hong Kong to heed the calls for their resignation. By stepping down, they can send a powerful message that the British legal system will not be complicit in the erosion of human rights and democratic freedoms. Anything less would be a betrayal of their duty to uphold the highest standards of justice, both at home and abroad.