A former chief justice of Canada’s supreme court has announced she is stepping down from Hong Kong’s court of final appeal – the latest in a string of departures amid concerns about judicial independence from China.
Beverley McLachlin, 80, said she would be leaving the territory’s top court when her term ends next month to spend more time with her family, but that she still held “confidence in the members of the court, their independence and their determination to uphold the rule of law”.
Her announcement came as a British judge who resigned from the court last week described the “impossible political environment” China had created in Hong Kong, saying the rule of law was under “grave threat” and he was no longer optimistic about its survival.
Lord Sumption, who had served as a non-permanent overseas judge on the city’s court of final appeal, described the “paranoia of the authorities” in Hong Kong, with judges being intimidated by a “darkening political mood”, in an article published by the Financial Times on Monday.
“Hong Kong, once a vibrant and politically diverse community, is slowly becoming a totalitarian state. The rule of law is profoundly compromised in any area about which the government feels strongly,” Sumption wrote. “The least sign of dissent is treated as a call for revolution.”
He wrote that he had remained on the court in the hope that the presence of overseas judges would help sustain the rule of law, but “I fear that this is no longer realistic”.
The former British colony is a common law jurisdiction, unlike mainland China, and non-permanent overseas judges have consistently served on its top court since the city returned to Chinese rule in 1997. In 2019 there were 15 such judges, but after a string of resignations in recent years, corresponding with the Hong Kong government’s crackdown, only around seven remain.
In June 2022 McLachlin defended her decision not to follow other judges in resigning after the introduction of the national security law. She told Canadian media the court was “completely independent of the regime in Hong Kong”.
“The government is something else, and that is just when you need courts, when you have laws like this, when you have governments that might need checking.”
Sumption’s criticism on Monday was not the first by a departing overseas judge since Beijing increased its control over Hong Kong.
Lawrence Collins, who also resigned last week, told the Associated Press that his departure was “because of the political situation in Hong Kong”. But he said he continued “to have the fullest confidence in the court and the total independence of its members”. In 2022 another British judge, Robert Reed, stepped down, saying the administration “has departed from values of political freedom, and freedom of expression”.
The Hong Kong government rejected Sumption’s criticism. In a lengthy response delivered in both Chinese and English, the city’s chief executive, John Lee, said judges were professional but “their expertise does not lie in politics”.
“A judge may dislike a political system [or] a particular piece of legislation, but where the expertise of a judge is concerned, that judge should follow the evidence and the law in interpreting the law correctly, irrespective of their personal politics,” Lee said.
Sumption’s article included criticism of the recent ruling in the so-called Hong Kong 47 trial of pro-democracy figures.
Last month a panel of national security judges, handpicked by the government, convicted 14 of the 16 people who had pleaded not guilty on national security charges related to the holding of pre-election primaries in 2020. The pro-democracy campaigners and candidates had hoped to win a majority of seats in LegCo, Hong Kong’s parliament, and block the budget and trigger the chief executive’s resignation.
Sumption said the decision was “legally indefensible”, although he hoped the appeal courts “may yet put it right”. Hong Kong’s constitution, the Basic Law, “expressly authorises” legislators to reject government budgets, he said.
Elsewhere, he said, local judges were required to exercise “unusual courage” to resist an “oppressive atmosphere generated by the constant drumbeat from a compliant press, hardline lawmakers, government officers, and China Daily, the mouthpiece of the Chinese government”.
“Unlike the overseas judges, they have nowhere else to go,” he said.