Australian judges vow to stay despite mass resignations from Hong Kong’s top court

Former High Court chief justice Robert French has defended the decision of Australian judges to remain on Hong Kong’s top court amid intensifying concerns about pressure from mainland China, saying mass resignations would further undermine the rule of law in the city.

French is one of four retired Australian judges serving on Hong Kong’s Court of Final Appeal facing renewed scrutiny about their future on the court after two UK judges quit last week and a Canadian judge announced on Monday she would not seek reappointment when her term expires in July.

A pedestrian passes the Court of Final Appeal in Hong Kong.Credit: AP

The resignations, which come after the landmark conviction last month of 14 pro-democracy activists for subversion under the Beijing-imposed National Security Law, have refuelled a debate about the place of foreign judges in a system where China has stifled dissent and democratic freedoms.

One of the British judges who quit, Jonathan Sumption, made clear in an editorial in the Financial Times on Monday that he believed the judiciary’s role as a bulwark against authoritarianism had been all but extinguished by the “impossible political environment created by China”. This masthead is not suggesting any judges’ independence has been compromised.

French, who has served in the CFA’s non-permanent ranks of overseas judges since 2017, countered this view on Wednesday, saying he did not believe that a tipping point had yet been reached.

“Continuance is a judgment call and different judges will make different judgments,” French said, adding: “For the time being engagement is preferable to disengagement.

Former High Court of Australia judge Robert French has defended the decision of Australians to remain on Hong Kong’s top court.Credit: Alex Ellinghausen

“In my opinion the CFA judges are good, decent people and high-quality judges who are indispensable to the rule of law in Hong Kong. A mass resignation would be damaging to the rule of law and contribute to the isolation of Hong Kong from international legal thinking.”

He said none of the Australian judges would be resigning. Former High Court judges Patrick Keane and William Gummow also serve on the court, while former Federal Court chief justice James Allsop, the court’s newest overseas appointee, confirmed to this masthead that he would continue in his role, only made effective on May 24.

French also endorsed the views of Keane, who told The Australian Financial Review that judges should not “abandon the field in despair”, and that he did not believe a red line had yet been crossed in the form of government pressuring the judiciary or refusing to accept the decisions of the courts.

“There can be a point it has been diminished to an effect that trials are show trials. From those I’ve spoken to, they don’t see themselves as conducting show trials,” Keane said.

Lee Yue-shun (centre), a former pro-democracy district councillor, leaves the West Kowloon Magistrates’ Courts in Hong Kong last month after being cleared of national security charges. Fourteen activists were convicted.Credit: AP

The position of the Australian judges contrasts starkly with Sumption’s assessment that Hong Kong was “slowly becoming a totalitarian state”, there was a “growing malaise” within the judiciary, and that “the rule of law is profoundly compromised in any area about which the government feels strongly”.

“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,” he wrote in the Financial Times.

Separately, UK judge Lawrence Collins cited the city’s “political situation” after he tendered his resignation last week. Canadian judge Beverley McLachlin did not cite political reasons for her decision to retire, noting she had turned 80, and said she continued to have confidence in the court and its independence.

Legal academic Dr Anna Dziedzic, who has written a book on the role of foreign judges in domestic courts, said there had been a long history of Australia’s most eminent judges serving on Hong Kong’s top court to preserve a common law jurisdiction after the city was handed back to China by the UK in 1997.

This included Sir Anthony Mason, another former Australian High Court chief justice, who was involved in many of the early cases that established the court’s jurisprudence, she said.

The role of overseas judges in Hong Kong has regularly been likened to “canaries in the coal mine”, with their presence serving as a litmus test of the independence of the court.

“This is the idea that a foreign judge wouldn’t sit unless they believed that the courts in Hong Kong are independent and that the rule of law was being upheld,” Dziedzic said.

“It would signify a real change in the judiciary and the legal system of Hong Kong if foreign judges from other common law countries were to not serve on the Court of Final Appeal any longer.”

Members of the public wait to enter court to hear a verdict for 47 pro-democracy activists in Hong Kong last month.Credit: Bloomberg

The latest resignations leave just seven judges in the ranks of the court’s pool of overseas judges – three British as well as four Australians. They don’t sit together, but rather one of the foreign judges is typically rostered to sit on the five-person appeal bench, alongside Hong Kong judges.

The ranks of overseas judges have whittled down through a string of resignations since the National Security Law crackdown, including that of former NSW chief justice James Spigelman, who quit in 2020.

Former Hong Kong lawyer Kevin Yam, who now lives in Australia, said there had been recent examples of Australian judges positively impacting the court. In a case last year, Keane was part of a 3:2 judgment that ruled in favour of recognising a right to gay civil unions in a case brought by democracy activist Jimmy Sham Tsz-kit.

In another case, Justice William Gummow was part of a majority decision that quashed investigative journalist Bao Choy’s conviction for making false statements to access vehicle records for a documentary that was critical of the police.

But Yam says these are small,“pyrrhic victories” that have, on occasion, been followed up by further tightening of the laws by Hong Kong’s lawmakers.

“I think we’re past the tipping point. They [overseas judges] can try and have an impact, but in the end it doesn’t take them very far,” he said.

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