Broadly speaking, there are two ways to respond to Communist China's national security law. First, there is the Tony Chung way. Chung, a 19-year-old activist, set up a pro-independence movement and became the first person arrested under the repressive legislation, imposed on Hong Kong by Beijing’s dictators earlier this year. Then there is the Lord Hodge way. The deputy president of the Supreme Court of the United Kingdom (SCOTUK) has been appointed to the Hong Kong Court of Final Appeal (HKCFA) and as such may help to apply the national security law.
Lord Hodge is not the first British jurist to take up a non-permanent post on the special administrative region's final appellate court; indeed, he joins SCOTUK president Lord Reed and former justices including Lords Sumption, Phillips, Neuberger and prorogation-slayer Baroness Hale. He is, however, the first to take the bench since the new law came into effect. Hong Kong democrats can rest assured that their prison sentences could be upheld by the finest common law judges in the world.
The Beijing legislation is, in effect, a death-to-democracy law. It criminalises anyone who 'organises, plans, commits or participates in' certain actions 'whether or not by force or threat of force, with a view to committing secession or undermining national unification'. Doing so in 'a grave nature' – as opposed to a spot of light-hearted separatism – incurs a life sentence while someone who 'incites, assists in [or] abets' secession faces up to ten years in the slammer.
A Hongkonger who 'requests a foreign country or an institution, organisation or individual’ pursue sanctions or 'other hostile activities' against Beijing will also be eligible for lifetime bed and board courtesy of the Chinese Communist Party. Australian judge James Spigelman, who quit the HKCFA last month, said his resignation was 'related to the content of the national security legislation'.
We might ask why our judges aren't following him. We might also ask why a legal profession and professoriate that throws a tanty over talk of 'activist lawyers' and judicial reform is so relaxed about British jurists serving in the legal system of a one country, one system Hong Kong. In theory, the appointment of non-permanent foreign judges is meant to reflect and fortify HKCFA's independence and there is an argument to be made that taking up his new post will allow Lord Hodge to bring a judicial temperament to interpretation of authoritarian legislation like the national security statute.
A similar defence is mounted for the Judicial Committee of the Privy Council's involvement in death penalty cases in its role as a court of last resort for some retentionist Commonwealth states. The JCPC is at least interpreting good laws (however undesirable their provisions); the national security act is a corruption of law and not even the best judges can make bad law good. If the legislation is a sign of things to come, British judges on Hong Kong’s highest court can only hope to engage in careful acts of liberal rebellion against legislative despotism. Judicial activism has a freer rein in democracies than in dictatorships and China will not tolerate meaningful obstruction of legislation it foists on Hong Kong, especially when foreigners are behind it. The national security law has a better chance of compromising judges who help apply it than those judges have of compromising it.
The direction of travel in Hong Kong is clear. China means to smother its autonomy and replace its semi-liberal political system with the dismal regimen of the Standing Committee of the National People's Congress. Foreign judges appointed to Hong Kong’s courts swear an oath to ‘bear allegiance to the Hong Kong special administrative region of the People's Republic of China’ and to serve ‘conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice’. Bearing allegiance to a Hong Kong evermore under the yoke of Beijing, either directly or through its instrument Carrie Lam, is inconsistent with the honest, conscientious administration of justice. British judges who participate in this charade are lending their imprimatur to a Potemkin legal system.
A government that considers the political situation so dire that it is offering Hong Kong residents British citizenship cannot allow Supreme Court justices to continue serving on that city’s highest court. The matter might have to be addressed in legislation but for now Lord Hodge and his colleagues should do the honourable thing and choose the rule of law over its enemies.