Jonathan Sumption
Hong Kong is ‘slowly becoming a totalitarian state’, says UK judge
https://www.theguardian.com/world/articl...n-sumption
Lord Sumption, who last week quit territory’s top court, speaks out on ‘paranoid atmosphere’ under Chinese rule
A British judge has described the “paranoid atmosphere” in Hong Kong as he explained his decision to step down from the territory’s top court.
Jonathan Sumption, along with another British judge, Lawrence Collins, last week resigned from Hong Kong’s court of final appeal (CFA).
Their decision came shortly after 14 people were found guilty of conspiracy to commit subversion in the biggest national security trial of pro-democracy activists.
Writing in the Financial Times to explain his decision to step down, Lord Sumption warned that Hong Kong was “slowly becoming a totalitarian state”.
The chief executive of Hong Kong, John Lee, has hit back at Sumption, suggesting the actions of the former British supreme court justice were politically motivated.
“His professional duty is to apply the … law in accordance with legal principles and evidence, whether he likes that law or not, not from his political stance,” Lee said.
A national security law passed in 2020 in response to mass protests in 2019 was “extremely illiberal”, Sumption told BBC Radio 4’s Today programme on Tuesday.
“The real problem, I think, in Hong Kong is the paranoid atmosphere there,” he continued. “This is said to be a response to the 2019 riots, but there were already laws perfectly capable of dealing with those. The object has become increasingly clear of the national security law was to crush peaceful political dissent, not just riots.”
Sumption said China was increasingly intervening in legal decisions in the territory.
“There is the problem that under the basic law, if China doesn’t like the court’s decisions, they can reverse them by what is called an interpretation, although it’s usually just a legislative intervention … It was initially unclear how frequently this would be used, but recent incidents have indicated that the Chinese are determined to use this provision in order to ensure that its opponents lose.”
At the end of May, 14 pro-democracy activists were found guilty of subversion in the largest application of the national security law to date. They included the former lawmakers Leung Kwok-hung and Helena Wong, the journalist turned campaigner Gwyneth Ho and others who joined the mass protests of 2019.
“I think that the picture is getting darker,” Sumption said. “The judgment on the 30 May against the 14 democracy activists was a major indication of the lengths to which some judges are prepared to go to ensure that Beijing’s campaign against those who have supported democracy succeeds.”
Lee, who assumed office as chief executive of Hong Kong in 2022, said in response to Sumption’s article in the FT: “This latest statement indicates that he doesn’t like the political situation in Hong Kong, but this is exactly the area he has told us in 2021 that should not be confused with the rule of law,” Lee said.
“His professional duty is to apply the … law in accordance with legal principles and evidence, whether he likes that law or not, not from his political stance.”
Overseas judges on Hong Kong’s top court have been a fixture of the city’s legal system, which unlike mainland China’s is derived from English common law, since the handover from British to Chinese rule in 1997.
The judges serve in a private capacity and are paid about £40,000 a visit, flying into Hong Kong to sit on certain cases. For decades, they were seen as lending prestige and expertise to a jurisdiction admired across Asia.
Govt refutes negative personal opinions of Lord Sumption
https://www.thestandard.com.hk/breaking-...d-Sumption
The government voiced its displeasure on Tuesday and disagreed with the now-resigned Court of Final Appeal non-permanent judge's personal comments on the rule of law and independent judicial power in Hong Kong.
In an article published in the Financial Times on Monday (Jun 10) titled "The rule of law in Hong Kong is in grave danger", Lord Jonathan Sumption - a British judge who recently resigned from the city's top court - said "the rule of law is profoundly compromised in any area about which the government feels strongly."
He noted that Hong Kong's judges "have to operate in an impossible political environment created by China" and mentioned "a symptom of a growing malaise in the Hong Kong judiciary."
The SAR government on Tuesday strongly disagreed with Sumption's personal opinions, stating that there is no truth that the courts are under any political pressure from the central or SAR government in the adjudication of national security cases or any other type of case and that there is no decline in the rule of law in the city.
It also added that Hong Kong's constitutional order guarantees the independent exercise of judicial power.
The government said each sovereign state has the inherent right under public international law to adopt the constitutional order and political and legal systems that best suit its actual situation and the overall interests of its people.
"When adjudicating cases of offenses endangering national security, as in any other case, judges remain independent and impartial in performing their judicial duties, free from any interference," the statement wrote.
The government stated that the actual threat of independent exercise of judicial power instead comes from external powers, who attempt to interfere with legal proceedings that reach verdicts that do not meet their liking, which are contrary to fundamental principles of international law and international relations.
"There is no truth in saying that Hong Kong is becoming a 'totalitarian' city," it said.
Separately, Chief Justice Andrew Cheung Kui-nung of the Hong Kong Court of Final Appeal said Tuesday that the Judiciary does not comment on others' opinions on them.
“It respects everyone's right to have their views, but opinions voiced publicly could amount to pressure on or interference with the courts' administration of justice and should be expressed, if at all, with the greatest circumspection,” Cheung said.
The Hong Kong Bar Association said it has “every confidence in the independence of our judiciary” and urge the public to support the work of judges and every effort to safeguard judicial independence and to uphold the rule of law in the city.
The rule of law in Hong Kong is in grave danger
https://www.ft.com/content/60c825be-b70a...127974570a
Many judges have lost sight of their traditional role as defenders of the liberty of the subject
The writer is a former overseas judge of Hong Kong’s Court of Final Appeal
What is happening to the rule of law in Hong Kong?
On May 30 Hong Kong’s High Court handed down a landmark judgment convicting 14 prominent pro-democracy politicians of “conspiracy to commit subversion”, contrary to the Beijing-imposed National Security Law of 2020. The accused had organised unofficial primaries to select a common list of pro-democracy candidates for the elections to the Legislative Council. Half the Legco seats were subject to a restricted franchise. The plan was to campaign for a majority that would demand universal suffrage and other concessions as a condition of approving the budget.
The Basic Law (Hong Kong’s constitution) provides that universal suffrage is the “ultimate aim”. It expressly authorises Legco to reject the budget, and provides that if it does so twice, the chief executive must resign.
Nonetheless, the High Court decided that rejecting the budget was not a permissible means of putting pressure on the chief executive to change his policies. He would certainly reject the majority’s demands, they said, and so would have to resign. That would interfere with the performance of his functions. The result is that Legco cannot exercise an express constitutional right for a purpose unwelcome to the government. Putting a plan to do this before the electorate was branded a criminal conspiracy. The maximum sentence is life imprisonment, the minimum 10 years.
The fact that the decision is legally indefensible does not necessarily mean that the rule of law is dead. The appeal courts may yet put it right. The real problem is that the decision is symptomatic of a growing malaise in the Hong Kong judiciary. Hong Kong’s judges have been threatened with sanctions in the US, an idea that is crude, counterproductive and unjust. Most of them are honourable people with all the liberal instincts of the common law. But they have to operate in an impossible political environment created by China.
Their first problem is the terms of the National Security Law and a hitherto defunct colonial law against sedition. This illiberal legislation does not entirely curtail the judges’ freedom of action but it severely limits it. Judges have to apply the law.
Second, every judge knows that under the Basic Law, if China does not like the courts’ decisions it can have them reversed by an “interpretation” from the standing committee of the National People’s Congress in Beijing. The “interpretation” that reversed the decision of the courts to allow former media mogul Jimmy Lai to be represented by UK counsel shows how far China will go in using this power against its opponents.
Third, there is the paranoia of the authorities. The violent riots of 2019 were shocking but the ordinary laws of Hong Kong were perfectly adequate for dealing with them. The National Security Law was imposed in response to the threat of a pro-democratic majority in Legco in order to crush even peaceful political dissent. Pro-democracy media have been closed down by police action. Their editors are on trial for sedition. Campaign groups have been disbanded and their leaders arrested.
An oppressive atmosphere is generated by the constant drumbeat from a compliant press, hardline lawmakers, government officers and China Daily, the mouthpiece of the Chinese government. A chorus of outrage follows rare decisions to grant bail or acquit. There are continual calls for judicial “patriotism”. It requires unusual courage for local judges to swim against such a strong political tide. Unlike the overseas judges, they have nowhere else to go.
Intimidated or convinced by the darkening political mood, many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it. There are guarantees of freedom of speech and assembly in both the Basic Law and the National Security Law, but only lip-service is ever paid to them. The least sign of dissent is treated as a call for revolution. Hefty jail sentences are dished out to people publishing “disloyal” cartoon books for children, or singing pro-democracy songs, or organising silent vigils for the victims of Tiananmen Square.
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.
I was an overseas judge of the Court of Final Appeal until my resignation last week. I remained on the court in the hope that the presence of overseas judges would help sustain the rule of law. I fear that this is no longer realistic. Others are less pessimistic. I hope that they are proved right.
港府反駁岑耀信：法官專業不在政治 評論：海外法官「跳船」將成風勢影響外資信心
https://www.rfa.org/cantonese/news/htm/h...31035.html
香港終審法院兩名非常任英國法官上周請辭，其中岑耀信勳爵周一（10日）更在《金融時報》撰文，形容「香港法治岌岌可危」。港府「反駁隊」繼周一深夜發4000字長新聞稿回應後，特首李家超周二（11日）再補充，指岑耀信講法與數年前有矛盾，又試圖轉移視線指英國政客意圖破壞香港法治。有法律學者認為，接連有海外法官在這時候離任，反映「47人案」裁決觸動到他們的神經，長遠勢將削弱香港對外資的吸引力。
李家超：法官專業不在政治 岑耀信文章與幾年前說法矛盾
香港行政長官李家超周二出席行會前見記者，被問到有關岑耀信撰文抨擊香港法治情況時，李家超引述岑耀信曾稱「民主及法治是兩回事」，令他感到岑官文章與過往說法有矛盾；又強調不續任的郝廉思辭任時，仍表示對香港法院及司法獨立「充滿信心」。
李家超重申意圖破壞香港法治的人，是「恐嚇」對法官實施制裁的英國官員、政客及反華媒體；又指法官可以有個人政治取向，但他們的專業不在政治方面。
李家超說：「一位法官可以喜歡或不喜歡某種政治制度，他亦可以喜歡或不喜歡某一條法例，但是法官的專業是要按法律原則以及證據，正確地詮釋這些法例，不論他個人對這條法例有任何政治看法。」
法律學者：法官坦率批評香港法治做法罕見 料海外法官「跳船」將成趨勢
美國喬治城大學亞洲法中心研究員黎恩灝分析，岑耀信在報章撰文坦率地批評香港法治狀況，這做法相當罕見，估計來自西方自由國家的海外法官離開終審法院將成趨勢。
黎恩灝說：「47人案裁決其實顛覆了西方國家如何理解三權分立、如何理解議會民主及憲制秩序……岑官這時候辭任及發表這番言論，相信是47人案的裁決觸動了他們的神經。儘管岑耀信指上訴庭可能可以改變（裁決），但他們都很仔細地點出了整個香港的政治氛圍，及政治制度上對司法界的鉗制。」
兩名英國非常任法官宣布離任後，資深大律師湯家驊及城大法學院教授梁美芬，日前分別接受《無綫新聞》訪問，湯家驊認為非常任法官「只屬觀感作用」；而梁美芬則提議引入來自星、馬等普通法地區的大法官，成為非常任法官。
建制派法律學者倡引入其他普通法地區法官 黎恩灝：公信力或成疑
黎恩灝指終院設海外非常任法官，是為了維持香港市民及國際社會對香港司法制度的信心及公信力，海外法官陸續「跳船」，客觀上反映他們對香港現狀的不信任及缺乏信心。
他說：「去一些其他行使普通法的專制國家、獨裁國家，一些威權國家，去找那些法官來做海外法官都可以的，理論上是可以的。但國際社會、外資、商界，是否會對這些任命有信心呢？這是另一個問題。」
海外法官「跳船」勢影響外資信心 律師會、大律師公會：對港司法充滿信心
香港近年已經被嘲成為「國際金融中心遺址」，黎恩灝認為香港之所以享有「國際金融中心」美譽，除了有相對自由的港口及便利外貿政策，還包括司法系統的公信力。但隨著《港區國安法》及《基本法》23條立法後，外商對在香港繼續投資的考慮會更多。
他解釋：「在《港區國安法》通過後，其實法庭裁決都會被質疑是否公正，因為審判國安案件的法官都是由特首指定，而法律上的模糊，無論是《國安法》抑或是23條立法後罪行的模糊、定義的廣泛，都是會製造更多法律的不確定性。加上海外法官這樣離場，一定會對外國投資者、對於商界（有影響），香港就再無以前那種所謂吸引力。」
香港律師會及大律師公會周二分別發聲明，表示對司法人員及司法機構獨立運作「充滿信心」，黎恩灝形容這些聲明流於「口號式」，亦無提出實質證據說服公眾及國際社會。
黎恩灝指：「從國際社會層面來說，到底是這兩個律師公會的聲明較有說服力，還是一個退休資深英國法官，在《金融時報》的評論文章更有說服力呢？這個一定自有公論。」
岑耀信及郝廉思日前離任後，現時終審法院只剩下4位澳洲籍、3位英國籍及1位加拿大籍海外法官。但司法機構日前證實，唯一來自加拿大的非常任法官麥嘉琳，已決定7月任期屆滿後不續任，成為《國安法》實施以來第9名離職的海外法官。
岑耀信詆毀香港 言論自相矛盾
https://www.wenweipo.com/a/202406/11/AP6...f091d.html
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