Jonathan Sumption, one of two British judges who resigned from the Court of Final Appeal last week, wrote in the Financial Times on Monday that last month’s decision, which he noted could still be reversed by an appeal court, was “symptomatic of a growing malaise in the Hong Kong judiciary” where judges had to “operate in an impossible political environment created by China.”

The 47 were found guilty of subversion for organising an unofficial primary to choose their candidates in the largest ever trial under the National Security Law, which Beijing imposed on the territory in 2020.

Among his concerns, Sumption listed the security law and the revived colonial-era sedition law, which he said were “illiberal legislation” that “severely” limited judges’ freedom of action, “interpretations” by a standing committee of the National People’s Congress in Beijing such as in the case of jailed tycoon Jimmy Lai, and the “paranoia” of the authorities.

“The least sign of dissent is treated as a call for revolution,” Sumption wrote. “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.”

In a lengthy statement on Tuesday, the Hong Kong government rejected the British judge’s comments, saying there was “absolutely no truth” to suggestions that Hong Kong’s judiciary was under pressure from Beijing, or that there had been any decline in the rule of law in Hong Kong, which was returned to Chinese rule in 1997.

“The government has never, and also will not allow anyone to, interfere with the prosecutions of the Department of Justice and trials by the court,” Chief Executive John Lee said in the statement, noting that prosecutorial power and adjudication power were independent, and citing the Basic Law, Hong Kong’s mini constitution.

“These two powers are fully and affirmatively protected by the Basic Law. The prosecutorial decisions of the Department of Justice has [sic] not been subject to any interference. Likewise, the court has always exercised its independent judicial power without any interference. This is how it was in the past, how it is at present, and how it will be in future. The rule of law in Hong Kong is strong and will not change.”

In his weekly news conference on Tuesday, Lee pointed his finger at the United Kingdom, the former colonial ruler of Hong Kong.

“Some UK officials and politicians try to weaponise the UK’s judicial influence to target China and HKSAR [Hong Kong]” Lee told reporters. “A judge is entitled to his personal political preferences, but that is not a judge’s area of professional expertise.”

Political upheaval

Sumption, who in 2021 resisted pressure on foreign judges to resign their positions, stepped down last week with another British judge Lawrence Collins.

Collins told the Associated Press news agency that while he retained confidence in the independence of the courts, he had decided to leave “because of the political situation in Hong Kong”.

In 2019, the territory was rocked by mass protests which began over concerns about plans to extradite suspects for trial in Chinese courts and evolved into calls for democracy, which later turned violent. Beijing imposed the National Security Law on July 1 the following year and Hong Kong passed its own security law earlier this year.

Since the protests, rules governing Hong Kong elections have also been tightened with all candidates required to undergo strict vetting to ensure only “patriots” hold public office.

Many pro-democracy politicians and activists, including some who once sat in the territory’s legislature, have been arrested or gone into exile with the police offering financial rewards for information leading to their detention. Civil society groups have also wound down and independent media closed.

Dozens of people are now facing trial under the Chinese law and the first arrests were made under the Hong Kong law last month.

The governments in Beijing and Hong Kong say the laws have restored stability following the 2019 protests.

Amid the debate over overseas judges, Hong Kong announced late on Monday that former Canadian Chief Justice Beverley McLachlin, who is 80, would step down in July when her contract expires.

McLachlin, who has previously come under pressure for her decision to remain on the bench, was appointed in 2018.

“I continue to have confidence in the members of the Court, their independence, and their determination to uphold the rule of law,” she said in a brief statement.

Hong Kong is a common law jurisdiction, unlike mainland China where the courts are controlled by the Communist Party.

Non-permanent overseas judges have consistently served on the bench of its top court since the handover. There were 15 such judges in 2019, and with McLachlin’s departure, about seven will remain.