The future of foreign judges, including three Australians, serving on Hong Kong's top court is in doubt due to concerns about the territory's national security laws which lawyers say have undermined the independence of the city's British-style legal system.
The Hong Kong government revealed on Friday that Australian judge James Spigelman had resigned from Hong Kong’s Court of Final Appeal two years before his term was due to expire. Chief executive Carrie Lam revoked his appointment as one of 14 non-permanent overseas judges on September 2.
The Hong Kong government on Saturday defended the independence of the territory's judiciary, noting there were still 13 other foreign judges sitting on the court.
"Nobody should doubt the HKSAR government's commitment to the rule of law and judicial independence," a spokesman said in a statement.
However, lawyers in Hong Kong said they were "shocked" at Justice Spigelman's resignation which would further undermine the city's rule of law and its role as a commercial hub.
Sources said on Sunday that Justice Spigelman, a former NSW chief justice and ABC chairman, had been concerned for several months about the national security laws and comments from top Hong Kong officials questioning whether the judiciary was independent of government.
He and other foreign judges were particularly worried they would have to preside over appeals brought by protesters charged with public disorder or other offences under the security laws imposed by China on the city on June 30.
It is extremely disturbing. Yet another severe blow to the confidence in the Hong Kong legal system. In the history of the SAR, no one in the top court has ever resigned.
— Unidentified barrister
"It was a shock to everyone. It is extremely disturbing. Yet another severe blow to the confidence in the Hong Kong legal system. In the history of the SAR (Special Administrative Region), no one in the top court has ever resigned," one prominent barrister told The Australian Financial Review.
Justice Spigelman did not respond to requests for comment. The Hong Kong government said he did not give any reason for his resignation. Under Hong Kong law, foreign judges can resign without giving notice or a reason.
In an interview with the Hong Kong Law Society's magazine in 2016, Justice Spigelman, who has worked on advancing Aboriginal rights in Australia, said he was "particularly sympathetic to groups who suffer discrimination or are otherwise oppressed". He was responding to a question about how his background as a child of Polish Holocaust survivors had influenced his work.
Legal experts said the resignation of judges from any country's top court was highly unusual unless it was due to ill health. They also raised the possibility that Justice Spigelman had been pressured to resign by the Australian government due to political tension with China.
Legal sources in Hong Kong said there was now a question mark over the other 13 non-permanent overseas judges sitting on the Court of Final Appeal.
They include three Australian judges, former chief justices Murray Gleeson and Robert French and former Australian High Court judge Bill Gummow. Justice French was quoted by the ABC saying he did not plan to quit.
"The dilemma these judges have, if you stay there is danger you will be involved in whitewashing the regime but if you leave you miss the chance to try your best to stamp the loss of freedoms from the inside," a legal source in Hong Kong said.
Concerns over intimidation
"I wouldn't be surprised if you see other judges following suit. More likely, they will not offer to continue when their three-year term expires."
There are also nine judges from the United Kingdom and one from Canada sitting on the court. All the countries represented are members of the Five Eyes intelligence-sharing network that faces intense scrutiny from China.
As reported in The Australian Financial Review in May, lawyers have been concerned for months that foreign judges in Hong Kong could step down if there was enough intimidation from Beijing. A panel of foreign experts overseeing a police brutality probe quit last year because they gave up on finding a way to conduct an effective investigation.
Judges in Hong Kong were also concerned about statements by Ms Lam and other government officials that there has never been a separation from powers in Hong Kong. That model, common in Western democracies like Australia, means the executive, legislative and judicial branches of government are independent of each other.
"I fear there may be more NPJs (non-permanent judges) who for whatever reason might feel that they would also not accept the appointment, or resign in future, and again dealing a great blow to the Hong Kong legal system," Dennis Kwok, a Hong Kong legislator representing the legal sector, told state broadcaster RTHK.
In July, Robert Reed, the president of the UK Supreme Court in London, raised concerns about British judges serving in Hong Kong. "The new security law contains a number of provisions which give rise to concerns," Justice Reed said in a statement at the time.
Hong Kong police have arrested hundreds of pro-democracy supporters, disqualified politicians critical of China and clamped down on public criticism of the government since Beijing introduced new national security laws on June 30.