The Sumption case: An accomplice in undermining judicial independence

Editor's note: Kong Qingjiang, a special commentator for CGTN, is the dean of the Academy for Foreign-related Rule of Law at China University of Political Science and Law. The article reflects the author's opinions and not necessarily the views of CGTN.

Recently, British author and former British Supreme Court judge Jonathan Sumption has drawn attention for writing a series of articles criticizing Hong Kong's rule of law.

In his latest article in The New Statesman on December 20, he criticized the trial of Hong Kong businessman and media tycoon Jimmy Lai, who has been found guilty of conspiring to collude with external forces and conspiracy to publish seditious materials.

Had Sumption been an ordinary commentator, one would speculate that he is confused. But the reality is that he was a non-permanent judge at the Court of Final Appeal, the highest court of Hong Kong, until his resignation in June 2024.

His judicial activism raises questions about the appropriateness of public comments by retired judges and judges who have finished their terms. 

Retired judges are still regarded by the public as symbols of the judicial system. Although no longer subject to strict disciplinary constraints, both the rules and informal norms of the judicial community encourage them to exercise restraint.

They may give their insights on law and judicial administration, but there are three red lines for them while participating in public discussions: no involvement in partisan politics, no interference with ongoing cases, and no undermining of judicial independence.

In a word, retired judges are subject to judicial conventions, with the core boundary being that they must not undermine public trust in judicial independence and impartiality.

They must be vigilant against risks that could undermine the independent and impartial image of the courts by refraining from engaging in partisan political activities and highly controversial political issues and making comments on ongoing court cases.

Sumption's remarks are unfortunately just the opposite. His article has crossed the red line for retired judges.

It turns a blind eye to the facts of the case to stir up misunderstanding and attacks against Hong Kong's judiciary. It also groundlessly accuses Hong Kong's judicial system of being suppressed by "totalitarianism" and demanding that Western forces intervene.

Ironically, the same Sumption once authored an article in The Times, affirming the judicial independence of Hong Kong, stating that "the Chinese central government and the government of the Hong Kong Special Administrative Region have never interfered with the judiciary."

Sumption places Western democratic values above Hong Kong's rule of law and attempts to influence Hong Kong's judicial proceedings through political interference, which deviates from the fundamental principles of judicial independence.

His actions not only seriously violate the professional ethics expected of a retired or outgone judge but also expose his stance of facilitating external interference in Hong Kong's affairs and undermining judicial independence.

His remarks do not contribute to advancing the rule of law in Hong Kong; on the contrary, they damage judicial independence and undermine public confidence in the legal system.

Hong Kong's legal system is derived from English common law, with the doctrine of stare decisis (the principle of following precedents) and the case law system at its core. Under the framework of "one country, two systems," Hong Kong retains the common law system in accordance with the Basic Law and allows the recruitment of judges from other common law jurisdictions.

This institutional arrangement is not only to ensure the smooth continuation of Hong Kong's legal system since its return to the motherland but also to embody respect for Hong Kong's legal traditions. Furthermore, it serves as a crucial measure to uphold Hong Kong's status as an international legal hub.

The vast majority of foreign judges have earned high esteem and benefits through their commitment to upholding the rule of law and diligent service to it.

However, Sumption's actions go back on the written rules and conventional norms for retired judges.

But regardless of external harassment and provocation by people like Sumption, the solid foundation of Hong Kong's rule of law remains unshaken, and the principle of judicial independence will continue to be upheld.

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