Introduction
On November 23, 2020, Lord David Neuberger of Abbotsbury joined human rights dignitaries of the International Bar Association’s High-Level Panel of Legal Experts on Media Freedom—a group he had created—for an online video event celebrating the launch of the Panel’s latest report1. Neuberger is the former President of the UK Supreme Court, and currently sits as an overseas Non-Permanent Judge (“NPJ”) on the Hong Kong Court of Final Appeal (“CFA”).
The judge sat quietly while speaker after speaker stressed the critical importance of human rights and media freedom. Then, as the esteemed founder of the panel, Lord Neuberger offered closing remarks. He said: "“Journalists, alas, are more at risk than they have been at a long time. And at a time when freedom of speech and freedom of expression could not be more important and more valuable, it is therefore vital that we take steps - not merely talk about it, but take steps - to ensure that freedom of expression is maintained and journalists are free to carry on their trade, and the public are free to know what’s going on, because that is what journalists are there for.”
Just one month later, on December 31, 2020, Lord Neuberger’s colleagues on the Hong Kong CFA revoked Jimmy Lai’s bail and ordered him to prison. Lai, the founder of pro-democracy newspaper Apple Daily, was charged under Hong Kong’s national security and sedition laws in a case stemming from the dissenting political views expressed in his media outlet.
Since that day, Jimmy Lai hasn’t seen freedom—and he may never see it again. Many of Lai’s media colleagues were imprisoned alongside him, awaiting prosecution in Hong Kong’s courts. Most independent media outlets in the city have been forced to close, and countless journalists and dissidents have gone into exile.
All along, the Judiciary has played a crucial role in this crackdown on Hongkongers’ rights. Yet Neuberger continues to sit on its highest court, the CFA. In fact, in March 2022, as the Hong Kong Judiciary continued to oversee the imprisonment of more than 1,800 political prisoners, Neuberger declared in a joint statement with other British NPJs that he was “entirely satisfied” with the integrity of the Court.
The jarring contrast between Lord Neuberger’s lofty words on global human rights and his failure to protect these rights in the court on which he has actual judicial authority offers but one snapshot of the unprecedented conflicts and problems posed by the continued refusal of nine British, Australian, and Canadian justices to resign from the CFA. It is understandably a source of pride to these judges that they and the legal systems they come from are so well respected. By remaining on the CFA, however, they lend their prestige to a justice system that has been undermined and co-opted by Beijing in its relentless efforts to exert total control over Hong Kong.
Hong Kong’s overseas NPJs have historically served as a symbol of common law continuity and support for rule of law. However, the evolving geopolitical landscape in which there are increasing tensions between China and Western democracies necessitates a re-evaluation of the suitability of such appointments. In this climate, these judges find themselves in an increasingly precarious position, where their obligations to uphold the interests of two opposing entities can often come into direct conflict.
In this report, we first provide an overview of the Court of Final Appeal (CFA), its unconventional overseas Non-Permanent Judges (NPJs) arrangement, and a list of the current overseas NPJs sitting on the CFA. We then highlight the problems this arrangement poses in an increasingly illiberal city, one in which rule of law and the judiciary are seriously compromised. We refute the claims made by the overseas NPJs that the CFA retains its independence from Beijing and is protecting the rule of law, and we highlight instances in which conflicts have arisen and will continue to arise due to British NPJs’ competing allegiances to Hong Kong and the British Crown. Ultimately, our findings lead to an inescapable conclusion: that overseas NPJ appointments to the Hong Kong CFA must end.
To read more, download the PDF above. Alyssa Fong and Samuel Bickett are the authors of this report. Alyssa is the Public Affairs and Advocacy Manager, UK & Ireland at the Committee for Freedom in
Hong Kong (CFHK) Foundation. Samuel Bickett is a Hong Kong Human Rights Lawyer, Researcher and Advocate.