Flat White

Australian judges oversee the collapse of law in Hong Kong

5 July 2022

11:00 AM

5 July 2022

11:00 AM

The Court of Final Appeal is the final appellate court in the Hong Kong Special Administrative Region (HKSAR).

Established on July 1, 1997, upon the commencement of the Hong Kong Court of Final Appeal Ordinance, it replaced the Judicial Committee of the Privy Council as the highest appellate court in Hong Kong. It was required to uphold Hong Kong’s Constitution – the Basic Law.

The Court of Final Appeal invites non-permanent judges from other common law jurisdictions to sit on the court. A number of judges from Australia, Britain (England and Wales), Canada, and New Zealand have sat as members of this Court.

In June 2020, these non-permanent judges included four former Australian judges and some from Britain. The Australian judges were Murray Gleeson, Robert French, William Gummow (all former judges of the Australian High Court) and James Spigelman (from the NSW Supreme Court). The amongst the British judges were Lords Robert Reed and Patrick Hodge.

On June 30, 2020, the Peoples Republic of China imposed the widely publicised National Security Law in Hong Kong, without any reference to the Hong Kong’s Legislative Council.

According to Lily Kuo writing in The Guardian on July 1, 2020:

Beijing has imposed a controversial national security law on Hong Kong, giving the Chinese government sweeping powers over the semi-autonomous territory in a move critics say will crush its freedoms. Late on Tuesday, China unveiled the full text of the anti-sedition law, which targets the crimes of secession, subversion, terrorism and collusion with foreign forces, with penalties as severe as life in prison. The law was published just after it went into effect at 11 pm on Tuesday. Its implementation comes less than 40 days after Beijing stunned residents and the international community with its plan to impose the law on Hong Kong, bypassing the city’s own legislature, as a way to halt anti-government and pro-democracy protests that have been running for the last year.

On September 2, 2020, just over two months after the National Security Law came into effect, Mr Spigelman resigned from the Court of Final Appeal, despite having another two years on his second contract.

The Australian Financial Review’s Michael Smith wrote on September 18, 2020:

Australian judge James Spigelman has resigned from Hong Kong’s highest court, reportedly citing concerns over the national security law imposed on the region by Beijing. His resignation comes amid a deteriorating political and judicial environment in Hong Kong, where the imposition of a national security law by the central government in Beijing has sparked concern and confusion about Hong Kong’s rule of law as a semi-autonomous state.

ABC reporter Stephen Dziedzic quoted Spigelman as saying he stepped down for reasons ‘related to the content of the national security laws’.

Reuters Sydney/Hong Kong reporting Mr Spigelman’s resignation, noted:

But Lam (Ms Carrie Lam, Chief Executive of Hong Kong) and her officials have in recent weeks stressed that the city had no ‘separation of powers’, and that the powers of its executive, legislature and judiciary all derived from Beijing. Even before new laws were enacted, senior judges had told Reuters the independence of Hong Kong’s judicial system was under assault from the Communist Party leadership in Beijing. [emphasis added.]

If there was any doubt as to the constitutional reach of the National Security Law in Hong Kong, that was extinguished by the unanimous judgment of the Court of Final Appeal on February 9, 2021, in HKSAR vs. Lai Chee Ying (2021), where the Court of Final Appeal concluded:

The legislative acts of the National People’s Congress and the National People’s Congress Standing Committee leading to the promulgation of the National Security Law as a law of the HKSAR in accordance with the provisions of the Basic Law and the procedure therein, are not subject to constitutional review by the Court on the basis of any alleged incompatibility as between the National Security Law and the Basic Law or the International Covenant on Civil and Political Rights as applied to Hong Kong.

(None of the three HCA judges were involved in the appeal.)

The decision meant that the Court of Final Appeal were no longer the forum of final appeal for the citizens of Hong Kong.

Despite the decision being handed down in February 2021, it wasn’t until March 30, 2022, that two of the British judges, Lords Reed and Hodge, resigned from the Court of Final Appeal, with the former stating:

I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression.’

A disinterested observer could wonder why it took them a year to act! Ironically, seven British judges still sit on the Court of Final Appeal.

Mr Spigelman is to be commended for only taking around two months from the enactment of the National Security Law in June 2020 to realise that the Court’s independence had been curtailed, and subject to Executive decision-making by the Communist Party of China.

Ms Lam’s reported statement about there being no separation of powers meant that the twin pillars of an independent judicial system viz the rule of law and the separation of powers (such as exist in Australia, Britain, Canada and the United States of America), had been expunged, permanently.

The result in Lai Chee Ying proved Mr Spigelman correct in his decision to leave.

It has been instilled in us from a very young age to behave in a manner that brings credit to the training and other institutions that have moulded our success. So should it be with these three judges: they should conduct themselves in a manner that brings credit to the High Court of Australia. They should not need reminding that if the High Court of Australia were not held in high esteem, they may never have been invited to serve on the Court of Final Appeal. That these judges have elected to remain on the Court of Final Appeal is deeply troubling, given the gravitas of the High Court of Australia and the international esteem in which it is held.

Sir Anthony Mason, writing in The Oxford Companion to the High Court of Australia, described the High Court in the following terms:

The Court with which the High Court is most often compared are the Judicial Committee of the Privy Council, the House of Lords, the Supreme Court of Canada, and the United States Supreme Court. The High Court makes more use of the decisions of these courts than of the decisions of other courts. Following the appointment of (Sir Owen) Dixon and (Herbert) Evatt to the High Court in 1929 and 1930, and later (…) Latham, the High Court began to deliver judgments of very high quality. The judgments of Dixon were particularly influential in the Privy Council and never more so than when Viscount Simmonds was sitting. In his Lordship’s eyes, the attribution to Dixon of error appeared to verge on sacrilege. Dixon’s influence extended beyond constitutional to other legal questions.

The Guide to Judicial Council (3rd Edition, Nov 2017), published for The Council of Chief Justices of Australia and New Zealand, provides the following advice:

The purpose of this publication is to give practical guidance to members of the Australian judiciary at all levels. The principles applicable to judicial conduct have three main objectives:

  • To uphold public confidence in the administration of justice;
  • To enhance public respect for the institution of the judiciary; and
  • To protect the reputation of individual judicial officers and of the judiciary.

Any course of conduct that has the potential to put these objectives at risk must therefore be very carefully considered and, as far as possible, avoided. There are three basic principles against which judicial conduct should be tested to ensure compliance with the stated objectives. These are:

  • Impartiality;
  • Judicial independence; and
  • Integrity and personal behaviour.

These objectives and principles provide a guide to conduct by a judge in private life and in the discharge of the judge’s functions. If conduct by a judge is likely to affect adversely the ability of a judge to comply with these principles, that conduct is likely to be inappropriate.

Following the decision in Lai Chee Ying, the three judges know that they cannot comply with the principles of judicial conduct, which enables the objectives of impartiality and judicial independence.

Although the Guide applies to members of the Australian judiciary, these three judges would surely not plead that they are exempt, being no longer members of the Australian judiciary.

Strict adherence to the principles and objectives of the Guide has seen the High Court of Australia achieve international respect and esteem. Importantly, it has empowered its judges to hand down decisions over the years that have infuriated the Executive – Communist Party of Australia [1951] and Mabo [Nos 1 & 2: 1988 & 1992]. The decisions were possible only because of judicial independence, beyond the reach of the Executive.

Given the resignations first, of Mr Spigelman followed by Lords Reed and Hodge, it is difficult to imagine what may have influenced the North Star vision of these three Australian judges or convinced them to remain at their posts. As judges with gifted talents, they appear to have failed to protect and enrich their legacy.

The argument that their fellow judges on the Court of Final Appeal may have requested they continuance if only to develop the common law in Hong Kong, will not cut the mustard. Absent the rule of law and the separation of powers, these three judges know that they cannot engender public confidence in the administration of justice and public respect for the institution of the judiciary in Hong Kong. As members of the Court of Final Appeal, they cannot provide the people of Hong Kong with the justice they have come to expect from the Court of Final Appeal since 1997.

Writing in the Bar News, on the passing of the great Lord Alfred (Tom) Denning, Steven Rares SC, as he then was, noted:

Lord Denning was a remarkable man – a hero to many – a villain to others – Sir Leslie Herron CJ welcomed him to the opening of our law term in 1967 in terms as having ‘been truly described as an apostle of justice’. Lord Denning rejoined: Finally, sitting in this Court, I would remind you of our task to do justice. You may well ask: ‘What is justice?’ Many men have asked that question – you and me – and no one has found a satisfactory answer. Plato asked it 2000 years ago. …. The nearest approach to a definition which I can give is that justice is what the right-thinking members of the community believe to be fair.

The absence of the rule of law and the separation of powers n the Court of Final Appeal, appears to preclude judges Murray Gleeson, Robert French, and William Gummow, from dispensing justice that the right-thinking members of the Hong Kong community, believe to be fair.

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