Western ‘lawfare’ forces Hong Kong’s foreign judges to quit
- The city must be grateful for the expertise and service these members of the judiciary have provided, but they have served their historic purpose
Lawfare, according to the Oxford dictionary, is a neologism that means legal action undertaken as part of a hostile campaign against a country or group. It’s obviously a play on the word warfare. Another way of understanding is to politicise the law, whether your own or that of another state, to attack your enemies, who could be domestic or foreign.
For years, a united front of politicians and pundits from Britain, Canada and Australia have been demanding the resignation of non-permanent judges from their countries serving in Hong Kong’s top court. The United States – which has no such judges here – has gone further: a powerful bipartisan group of lawmakers have been demanding sanctions against some of the city’s senior judicial and police officers.
This highly coordinated Anglo-American lawfare has been pretty successful. Its latest score has been the resignation of Lawrence Collins and Jonathan Sumption, two British non-permanent judges appointed to the Court of Final Appeal.
While their resignations have been described as a “shock”, it’s really a matter of time given the intense pressure that has been exerted on the judges to quit from the UK government, media and professional legal bodies.
Collins told this newspaper he resigned “because of the political situation in Hong Kong”, but said he still had the “fullest confidence” in the court and its total independence. If so, why quit?
The pair’s resignations followed those of Robert Reed and Patrick Hodge, two British Supreme Court judges, in 2022. Ex-Canadian Supreme Court chief justice Beverley McLachlin, who is facing similar pressure from her country, may be next.
Three Australian judges and David Neuberger from Britain have declared they will stay. All those judges, past and present, have served Hong Kong well. We should be grateful for their expertise, prestige and integrity.
However, the time has come to acknowledge the raison d’être for this unique judicial programme no longer exists.
Given the profound Anglo-American hostilities towards this programme, it does not matter how well it is functioning or contributing to an independent judiciary. It will be discredited in Western eyes.
Western lawfare aims ultimately to undermine or delegitimise the rule of law in Hong Kong. It is being conducted by outsiders and foreign governments which have absurdly appointed themselves as arbiters of the soundness of our city’s legal system.
It doesn’t acknowledge facts or merits. It’s part of a multipronged campaign to undermine key institutional pillars of Hong Kong. The city, unfortunately but inevitably, has been caught up in a Western cold war against China.
For Hong Kong, it’s not a matter of considering this or that Anglo-American country as “unfriendly”, nor is it about turning away from the rest of the world. Those countries are hostile, have declared and acted as much, and will remain so, or rather will escalate their antagonism in the foreseeable future. We should always reciprocate friendliness with friendliness. But there is no need to turn the other cheek.
Our city does not lack expert judges and lawyers. A rich pool of mainland talent can also be trained. A confident judiciary can and now must function without having to rely on more overseas judges.
A dilution of British common law is inevitable given the reality of Chinese rule. Rather than seeing it as a challenge to the rule of law, the incorporation of some mainland Chinese legal practices and laws is rather a much needed adjustment to strengthen it.
Whether or not the rule of law survives ultimately depends on the collective trust or distrust of Hong Kong people, to whom the government and those who run the judiciary must convince that justice is done and that it is seen to be done.
As a result, once all have served out their terms or resigned beforehand, this programme for overseas judges should be allowed to be put to an honourable end. It has served its historic purpose.
