Blind Justice by Karen Serfinski

Courts personify the law. In the more grandiloquent accounts of the legal system, judges are depicted as its custodians, guardians of its values, sentinels of justice and fair play. They embody fairness, evenhandedness, and impartiality.1 And an independent judiciary is among the hallmarks of the rule of law. The jurist Ronald Dworkin memorably observed that ‘courts are the capitals of law’s empire, and judges are its princes.’2

Judges are not, however, always perceived in these lofty terms. In the words of a distinguished English judge:

[T]he public entertain a range of views, not all consistent (one minute they are senile and out of touch, the next the very people to conduct a detailed and searching inquiry; one minute port-gorged dinosaurs imposing savage sentences on hapless miscreants, the next wishy-washy liberals unwilling to punish anyone properly for anything), although often unfavourable.3

Judges are, like all of us, tainted by personal predilections and political prejudices. Yet occasionally it is asserted that to acknowledge judicial frailty is, in some sense, subversive, ‘as if judges’, as the illustrious American judge Benjamin Cardozo put it, ‘must lose respect and confidence by the reminder that they are subject to human limitations.’ They are, nevertheless, the archetypical legal institution. Their independence epitomises the very apotheosis of justice, and the ostensible demarcation between legislation and adjudication is one of the most cherished elements of a free society.

Lending legitimacy

Whatever their imperfections, independent judges perform another important role in a democratic society. A relatively autonomous, dispassionate judiciary offers considerable legitimacy to any government. To state the obvious, judges, whatever the extent of their independence, belong to a legal system, and that system requires the courts to support its laws. This feature is frequently employed to lend authority to the legal order. There is an important, perhaps even indispensable, need for governments to justify what Max Weber called the ‘monopoly of legitimate violence’. A repressive government that can point to an apparently detached judiciary which, though it may occasionally utter disquiet in respect of certain enactments or acquiesce in the enactment of unjust laws, has a useful tool in its quest for legitimacy.

An authoritarian legal system that can depend on almost unqualified submission from its judges may preserve the appearance of its legality intact. Therefore even judges unable morally to reconcile themselves to the injustice of the system willy-nilly lend legitimacy to it.

Accountability

We live in an age of public accountability. Or, more accurately, in cases of alleged criminal conduct, we prosecute selected individuals; the impunity that miscreant government officials, military commanders, and their collaborator once is becoming increasingly circumscribed. The establishment of the International Criminal Court in 1998, for instance, marked an important post-war recognition that gross injustice perpetrated by states should not go unpunished.

Yet judges, who often provide succour to wicked regimes are themselves rarely called to account. Why should they escape moral scrutiny and, where appropriate, reproach? Is it possible to establish grounds upon which judges in immoral societies may be held morally responsible for their acts or omissions?

Authoritarian states tend to utilise courts to ‘(1) establish social control and sideline political opponents; (2) bolster a regime’s claim to ‘legal’ legitimacy; (3) strengthen administrative compliance within the state’s own bureaucratic machinery and solve coordination problems among competing factions within the regime; (4) facilitate trade and investment, and (5) implement controversial policies so as to allow political distance from the political regime.’4

On the other hand, courts may be used to ‘open a space’ for activists to mobilise against the state to constrain arbitrary government:

Authoritarian regimes, which want to capitalize on the regime-supporting roles of the courts, are generally not [likely]to exert direct control or interference, but to adopt more subtle means such as promoting judicial self-restraint, engineering fragmented judicial systems, containing access to justice, and incapacitating judicial support networks.’5

Suppose, however, that the system is manifestly unjust, corrupt, or wanting in moral authority? A judge who recognizes these frailties (let us call him or her Righteous J) must also acknowledge that he or she, if not directly complicit, at least faces a moral dilemma. This problem arose in the unjust legal systems of Nazi Germany and apartheid South Africa. It has reared its head recently in Hong Kong, which I consider below.

The judicial choice

What is such a hypothetically virtuous judge to do? This simple question conceals a number of awkward quandaries. First, what is Righteous J doing in such a system? Might it not appear that his or her appointment to the bench of an unjust legal order constitutes acquiescence in the laws which he or she purports to find unjust? Is the judge not, in other words, ensnared in a vicious circle? How has such a dilemma arisen for Righteous J in the first place? In the Nazi and apartheid South African regimes, e.g., though the constituent parts of the unjust legal order might have changed since the judge was appointed, no existing member of the judiciary could claim that the essential injustice of the system was absent at when he or she was appointed.

This raises a number of related questions, one of which is the possibility of Righteous J’s moral conversion once on the bench and, in consequence, the appearance of a dilemma where none existed before. A point may be reached, for instance, where he or she can no longer countenance the exclusion of the court’s jurisdiction over matters involving civil liberties. Suppose our ethical judge finds this draconian annihilation of his or her jurisdiction unbearable. How can this new disapprobation be squared with the strict terms of the judicial oath, which will almost certainly call upon judges to administer justice in accordance with the law, (and new constraints on their authority cannot morally be distinguished from existing ones)?

What if, notwithstanding the niceties of this distinction, Righteous J is unable to reconcile his or her function as repository of justice with statutes that mock that very role. We must, I think, allow that the judicial oath is no barrier to a real moral quandary. In addition, it is arguable that - whatever view judges adopt about their oath - by simple virtue of their position, they are part of the very system that they now regard as unjust. Their objection therefore has them imprisoned within a hall of mirrors.

Imagine, to take an extreme example, that I am appointed to act as referee in a dog fight. The moral disquiet I might feel about the cruelty of that pursuit could hardly avail me were I to seek to justify my role in the contest. Again, I think we must allow Righteous J to exercise some moral choice, for to do otherwise would be to surrender to the crude view that all judges are equally agents of injustice.

Beyond judges

Blanket condemnation would render stillborn any serious attempt to evaluate the performances of individual judges, though it might be argued that, since the law is unjust, the legal system and all who administer or maintain it—judges, magistrates, lawyers, and even teachers of the law—are tainted by its injustice.

If so, is it not legitimate to accuse all with the general charge that they are cogs in the machinery of injustice? This view, however, seems misconceived. It runs counter to our habitual tendency to distinguish morally between the behaviour those whom we encounter every day. A comprehensive indictment of that kind, though it has understandable appeal to the rabble-rouser, invites us to abandon our efforts to differentiate good from evil and, hence, to accept the facile, and ultimately hypocritical, proposition that because anything done simply maintains the system, nothing should therefore be done. We can and do draw moral distinctions and judges, as guardians of justice, should be more, rather than less, susceptible to such judgments.

Moreover, a malevolent legal order may not in fact be so regarded by an individual  judge. To him or her, there arises no moral dilemma of the kind I am discussing here. May we therefore safely exclude this particular judge from general consideration? I think not. Even for them there might come a time when a particular legislative enactment strikes them as iniquitous. They may, for instance, find nothing immoral in a legal system that accords rights on the basis of pigment, but consider a certain tax law unfair. This dilemma is no less real than that faced by the judge who cannot reconcile his or her office with a legal order that is racially discriminatory or annihilates human liberty. Yet, though we should not belittle this predicament, it presents questions different from the one I am posing here, and is therefore considered only incidentally.

Wicked legal systems

In apartheid South Africa, the principal charge laid by critics of the majority of the judiciary was that, in the main, they failed to exercise what discretion they had in favour of the essentially libertarian principles of the common law. The conclusion I was driven to when I originally examined this problem was that, though it would be folly to deny that, even within the narrow compass permitted to them, apartheid judges could and did dispense justice, moral judges should nevertheless not participate in institutionalised injustice.6 This left them, I impertinently claimed, no choice but to resign their post.

I came to this uncomfortable, and, not surprisingly, unpopular, conclusion deductively. First, I rejected the legal positivist assumption that judges have discretion in the strong sense.7 Secondly, I recognised that apartheid South Africa was essentially a repressive legal system. Thirdly, I accepted that a judge in such a system who is unable to reconcile his moral standpoint with the law has three choices: to protest, to lie, or to resign. And fourthly (by expressing doubts on whether protests would bear fruit, and by pointing to the limitations of the judicial lie, caused principally by the severe constraints of the courts’ jurisdiction), I concluded that there was no compelling alternative to resignation.

The core of the case against me advanced by Professor John Dugard8 and others was that, despite the supremacy of parliament, the apartheid legislation did not provide a complete system within itself. The panoply of obnoxious statutes fell to be interpreted in the light of the common law. Administrative powers exercised under apartheid legislation were subject to the review of the courts in accordance with common law principles of natural justice, and subordinate legislation made in terms of these laws could be subjected to the test of common law standards of reasonableness.

Unlike in Nazi Germany, it was asserted, there existed no statutory or common law directive to judges that required them to adjudicate the laws of apartheid in accordance with the ‘principles of separate development’ or the ‘Volksgeist of the Afrikaner nation’—the ‘community morality’ or ‘institutional history’ identified by Ronald Dworkin. Dugard contended also that the judge who was guided by the ‘community morality’ of the white group or the ‘institutional history’ of Afrikanerdom was, in fact, a liar, for he or she invoked principles unrecognised by statute or common law, that reflected the spirit of the ruling elite, the white South African volk. Although judicial manoeuvre and creativity in support of human rights were unquestionably curtailed by the apartheid laws, there remained, Dugard maintained, scope for the judicial advancement of human rights in the interstices of the legal order, particularly in the interpretation of statutes, the development of the common law, and the review of administrative action and subordinate legislation.

A rejoinder

My reply observed that Dugard recognised ‘a strange duality in the South African legal system, which allows repressive laws to be interpreted in accordance with liberal common-law principles.’9 It was, in part, this very incongruity that suggested to me that the model might, in important respects, be defective. Of course, in the overwhelming majority of race and security cases that came before the courts, the statute in question put the matter beyond doubt, thereby rendering the opportunities for such ‘liberal’ interpretation negligible. Moreover, even where this was not so (that is, in ‘hard cases’), it was only in a very small number of cases that judges did, in fact, give ‘liberal’ judgments. We were, in other words, arguing about an unrepresentative minority of cases.

Nevertheless, it was not my argument that judges did not, on occasion, draw on these common-law principles; indeed, I confess that in hard cases judges are characteristically guided by non-rule standards and, in particular, by principles. But, to put it simply, I attempted to show that those libertarian principles that in Dugard’s view pervade the common law, do not, in fact, ‘fit’ as well as competing principles upon which judges tend to rely. I remain unconvinced that many of the ‘liberal’ principles relied upon by moral judges offered a realistic picture of the South African legal system, but, in this respect, Dugard and I may have been differing on (always fickle) empirical grounds; or perhaps Dugard’s argument was a normative one, while mine was largely descriptive.

My claim, that many of the ‘liberal’ principles of the common law did not ‘fit’ as a justification of the legal system, was more of an assertion than an argument, and it clearly required more detailed examination and refinement than I gave it, but I still believe that it is wrong to maintain, in the face of the repressive legislation enforced by the courts, that these common law principles afforded such justification. Many, I suggest, had been displaced by principles that represented a different legal or political order. Nor should we be surprised that this was the case, for evolution is one of the characteristics of the common law.

It was, however, no part of my thesis that the common law had been ‘totally replaced’ by legislation. I made a more limited claim, that as an account of the contemporary legal order it was essentially deficient. It would make no sense to have argued that legislation had comprehensively demolished common law principles, for, in such an event, there would, by definition, be no hard cases.

Judicial resignation

The second issue of substance between Professor Dugard and me was the question of judicial resignation. My argument that moral judges ought to resign predictably received three sorts of responses. The first was that a conscientious resignation would have little or no effect on the law, and since it would, in all probability, have resulted in a moral judge being replaced by one who suffers no moral dilemma, it might actually be counterproductive. The second claimed that there is, in fact, no moral imperative for judges to resign, for they still enjoyed considerable (or adequate) power to dispense justice. The third argued that if judges are required to resign, either morally or because they lend the system legitimacy,  then, equally, lawyers and academics should withdraw from the system.

The first two of those propositions turn, of course, on an empirical assessment of the apartheid South African legal and political order. It was significant that Dugard acknowledged that resignation by judges and withdrawal by lawyers and academics on a large scale ‘would undoubtedly have considerable political impact on the government and moral impact on their colleagues.’10 Indeed, he accepted that ‘widespread resignations in protest over some new horrendous legislative measure’11 could still have had a profound effect. It is, of course, hard to imagine any legislative measure more unjust than those that were already on the statute book, but, as I maintained, it would be audacious to rule out the possibility of a judge’s moral conversion and, as a result, the appearance of a dilemma where hitherto none had existed. However fanciful it may be to contemplate substantial numbers of principled judicial resignations, to accept the proposition that several resignations would be efficacious is not completely to reject such action on grounds of either utility or morality.

The third proposition—that ‘no clear line can be drawn on moral grounds between judge and lawyer, practising or preaching’12—was somewhat puzzling. I do not find it especially difficult morally to distinguish between state officials and others who ‘participate’ in the legal system. Looking back, say, to the debate in the United States on the morality of slavery and the dilemmas it posed for judges, I do not believe that this distinction constituted a serious obstacle to the proponents of resignation.13

Moral solutions

There are, of course, a number of difficulties that confront the moral philosopher attempting to answer the question I pose here. First, moral evaluation is itself problematic. Merely by claiming that principled appraisal is important, one is resisting ethical nihilism or non-cognitivism, and embracing some form of prescriptivism. Secondly, a number of fundamental moral judgments turn on which conception of ethics one adopts. I think that this issue is best confronted by way of a deontological, or action-centred (rather than an outcome-centred) approach.

Thirdly, though it is not especially controversial to focus on apartheid South Africa as a classic ‘unjust society’, the selection of any society as a model is not free of complexity. It requires, at the very least, an accurate account of its political and legal system. The predicament of the judge in such a system depends on factual observations about the regime which are neither uncomplicated nor uncontroversial. Fourthly, it may be that the value of any consideration of the judge’s moral dilemma is likely to be diminished without a credible theory of the judicial function in a common law context.

Unless fidelity to law is merely naked subservience to rules, its moral content is confined to keeping one’s promises or, more appropriately in respect of a judge, doing one’s duty. Judicial officers undertake to apply the law and are therefore required morally (as well as legally) to do so. But what if the law is plainly unjust? Surely an absolutist claim of this kind cannot be sustained; it strips the judge’s obligations of their moral content and renders his or her promise hollow. Even the most inflexible deontologist is unlikely to hold to this line.

Public or private morality?

What is it to claim that a judge caught in our dilemma ought to exercise moral autonomy and, if necessary, disregard an unjust law or quit altogether? Is this a statement about the judge’s public duty qua judge or is it addressed to him or her as an individual? I think it is the former, for otherwise the question no longer concerns public accountability and collapses into individual responsibility. It might be based on a normative view of what is entailed in the business of judging. At its thinnest, and most utopian, such a theory might point to the image of the judge touted above, as repository of fairness, possessing the ‘judicial virtues’ such as impartiality and considerateness which are ‘the excellences of intellect and sensibility.’14

It is true that the peculiar nature of the judicial function, as compared with that of other public officials, suggests that ethical consideration (in its widest sense) ought to figure prominently in the very exercise of judicial office. We want to trust that politicians behave ethically; we believe that judges do. I think, however, that despite the attraction of this Solomonic conception, any coherent thesis must turn on the judge’s role as public official, though extra purchase might be sought in the fact that judges should be especially sensitive to problems of right and wrong, good and bad.

What is the source of the judge’s public morality? Does it derive substantively from individual morality? It appears right that ‘we cannot establish [the] special responsibility of officials merely by applying our ordinary convictions about individual responsibility to the circumstances of their case.’15 But we must seek a firmer foundation for this conviction than the peculiar nature of the judicial function. The institution of promise-keeping will not do.16

Where should we look? The duty may originate in two places. The first I call the institutional source. Tom Nagel shows that, though private and public moralities are clearly not independent of each other, public officials assume the special and specific obligations of their office.17 Their moral duty springs from their job-description and the institution for which they work. At first blush, this institutional approach appears problematic, at least as far as the judges in an unjust society are concerned. Nagel rests his conception of the distinctive character of public morality on the limitations of the office of public officials: ‘They correlatively reduce their right to consider other factors, both their personal interests and more general ones not related to the institution or their role in it.’18 But this is no real limitation for it is hard to conceive of a question that would not fall into the category of general interests which the official may legitimately consider.

A second origin of the duty I call the community source. Rejecting the idea that officials’ moral responsibility stems from individual morality, Dworkin locates it in the proposition that ‘the community as a whole has obligations of impartiality towards its members, and that officials act as agents for the community in acquitting that responsibility.’19 This is an agreeable idea which, unhappily, had an embarrassingly empty ring in apartheid South Africa. The ‘community’ in that case had to be restricted to those who exercise political and legal control (i.e., the white minority) ––the principal origin of the society’s injustice! But this is consistent with Dworkin’s sense of ‘community morality’ which, in apartheid South Africa, could only have meant the morality of the dominant political group.

The judge’s oath to administer justice according to the law therefore becomes the source of both moral responsibility and moral dilemma. No judge in apartheid South Africa could have claimed ignorance of the injustices of the legal system. None could say: ‘When I took the oath, I was unaware of the fact that the legal system was the creation of a white minority, that the political system disenfranchised every black person, and that the law discriminated against black persons in several important aspects of social and economic life.’

The judge’s choice

To summarize, moral judges may conclude that they should remain at their post for one or more of three reasons. First, by regarding the greater part of the law as just, and accepting that most (or even all) of their judging takes place on this morally neutral terrain. Secondly, by believing that there are opportunities to interpret the law humanely, frustrating, if necessary, the immoral intention of the legislature. Thirdly, that should they resign, they are likely to be replaced by less moral judges.

To repeat, suppose our virtuous judges are faced with a hard case under a racial statute. They regard the system of racial segregation enshrined in the legislation as immoral. They are unable therefore to justify the statute either by reference to previous cases decided under it, or to ‘community morality’: the principles and policies that explain the ‘fit’ between the legislation and the ‘institutional history’ of his society. They find, in other words, that apartheid is so wicked that it fails to generate even weak rights.

The alternatives

Their choice, according to Dworkin, is threefold: First, they may give a decision based on moral (rather than legal) grounds; secondly, they may lie and declare the law to be what they would prefer it to be; or, thirdly, they may resign. The most compelling moral argument for relinquishing office is that they have become (or only now perceive that they have always been) an instrument of injustice. This entails an acknowledgement not only that the apartheid laws are iniquitous, but also that, because significant portions of their jurisdiction have been ousted, their ‘moral’ decisions annulled on appeal or by subsequent legislation, and their attempted constructive interpretation of the law rendered worthless, they have lost the capacity to do justice.20

An additional ground for moral discomfort, as already mentioned, is that as officials they lend the system legitimacy. They might reply that other members of the community, especially lawyers, also confer legitimacy and respectability on the system by virtue of their participation in it. But if they do, it cannot surely be to the same degree as judicial acquiescence. Hard cases offer moral judges their most effective prospects to ‘do good.’ Quitting might therefore be considered to be an abdication, rather than an expression, of moral responsibility. But this sort of calculation seems rooted in consequentialism that is notoriously complex. How might judges like Righteous J go about weighing up the consequences of staying against going? On the one hand, remaining in office allows them the potential, by whatever route, of doing justice in hard cases on the empirical assumption that they believe this still to be possible. Oppressed people may benefit; suffering may be reduced.

They will also consider the likelihood that this opportunity, however remote, will be eliminated if they are replaced by judges who support the status quo. On the other hand, withdrawal may assist, albeit modestly, to undermine legitimacy. Judicial resignations on conscientious grounds are exceptional occurrences. Leaving may also encourage other judges to follow suit, or at least critically to evaluate their predicament, and as a consequence to seek ways of avoiding the effects of the law’s injustice. And a judicial proclamation of the paralysis of the courts may result in legislative measures to reduce the law’s injustices.

If there is some vestigial morality in the system, the balance seems to weigh against withdrawal. The arguments in support of moral judges staying are constructive, charged with hope that palpable good may result. Resignation, on the other hand, speaks of despair and futility. It is not surprising that few would advocate so extreme a step. But, as I say, any consequentialist calculus seems problematic because of difficulties intrinsic to both consequentialism and the moral responsibility of judges and other public officials. To make virtuous judges’ determination of whether they should stay or go turn on which course of action they believe will achieve more justice entails an inexact utilitarian reckoning.

The case of Hong Kong

The resumption of Chinese sovereignty began with great promise. While the constitutional guarantee of a ‘high degree of autonomy’ enshrined in the improbable formula ‘one country, two systems’, was regarded with some cynicism, China seemed content to allow its new Special Administrative Region to continue on its lucrative capitalist path, unencumbered by communist meddling.21 The metamorphosis from British colony to Special Administrative Region of the People’s Republic of China the HKSAR) occurred on 1 July 1997. The form and structure of this unlikely creature – a capitalist enclave within a socialist state – was supposed to be vouchsafed by the Basic Law, which guaranteed the continuation of the ‘way of life’ for fifty years. It promised the territory a high degree of autonomy, with a separate legal, political, economic, and social system. Socialist policies and mainland law, it pledged, would not apply in Hong Kong. The HKSAR was vested with executive, legislative, and judicial power, including that of final adjudication. The common law system was preserved, fundamental rights protected, a court of final appeal established, and security of tenure of judges is assured.

Hong Kong has never enjoyed genuine democracy, but its legal order is, in key respects, indistinguishable from that of other common law, liberal, rule-of-law based systems. Importantly, its judiciary has a long history of independence and integrity. This was a far cry from the position in China, where power is vested in the Communist Party.22 Formally, the National People’s Congress (‘NPC’), the highest state organ, or its Standing Committee (NPCSC’) when the NPC is not in session, exercises legislative, executive, and judicial powers. The Chinese Constitution is an ideological instrument that is not enforceable by the courts.23 The NPCSC exerts the power of final interpretation of the law and superintends the judiciary, which is part of the state administration. The implementation of the Basic Law has consistently been affirmed by the PRC to be an internal matter, despite the fact that the Sino-British Joint Declaration of 1984, which stipulated the details of the resumption of Chinese sovereignty, is an international treaty.

Resistance to China

That outwardly tranquil picture changed dramatically in 2014. The ‘Umbrella Revolution‘ or ‘Occupy Central’ movement saw the first stirrings of unrest in response to China’s attempts to screen candidates for the election of the territory’s Chief Executive. This was met by a heavy-handed police response; those arrested – mostly students – were convicted of a variety of offences. Some were imprisoned.

A degree of restlessness continued in the territory, culminating in 2019, when large crowds returned to the streets to protest against the government ‘s intention to amend the law to facilitate the extradition of Hong Kong residents to Mainland China. The bill was originally designed to facilitate the extradition to Taiwan of Chan Tong-kai, a Hongkonger who allegedly murdered his girlfriend while they were travelling in Taiwan. Under HKSAR law, Taiwan, Macau, and Mainland China regarded as parts of China, so the bill facilitated extradition between Hong Kong and Taiwan, or Macau, or Mainland China. Although the proposal was eventually withdrawn, demonstrations persisted, some of which were particularly violent. On 1 July, the anniversary of the handover, the Legislative Council building was stormed and vandalised.

In June 2020, the NPC, understandably discomfited and angered by the disorder (especially the demands for independence – an imprudent and futile strategy, almost certainly born of the frustration built up by years of undemocratic rule) enacted a National Security Law (NSL) cracking down on dissent. Its objective was ostensibly to implement the ‘one country, two systems‘ policy, and ‘to prevent, suppress and punish secession, subversion, terrorism and collusion with foreign powers, to maintain prosperity and stability in Hong Kong, and to protect the rights and interests of Hong Kong residents.’ Its main provisions included the creation of a new enforcement mecha­nism, a ‘Committee for Safeguarding National Security’, which is under the supervision of, and accountable, to the central government, and whose decisions are not amenable to judicial review.

A National Security Adviser was appointed in 2020, as well as an Office for Safeguarding National Security, which includes personnel from Mainland China, with law enforcement powers which may be exercised only in relation to the special types of cases mentioned in Article 55 of the NSL. Thus far, no cases have been dealt with under this provision.

The National Security Prosecutions Division was established in accordance with the law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. It is responsible for the prosecution of offences endangering national security and other related legal work. A criminal offence may be committed outside Hong Kong, and by persons who are not permanent residents in Hong Kong. Criminal proceedings may be conducted on the mainland, where Chinese criminal procedural law will apply. The NSL permits trials under it to be heard by three judges, handpicked by the Hong Kong government, and without a jury.

In March 2021 China resolved to ‘reform’ Hong Kong ‘s political system, to ensure that only ‘patriots‘(essentially connoting those who ‘love Hong Kong and China‘) were eligible to serve as Chief Executive and elected representatives. In April 2021 veteran democratic campaigner Martin Lee QC, and media mogul Jimmy Lai, were among a group of activists convicted of unauthorised assembly for attending an unlawful protest in 2019. Custodial sentences of up to 14 months were imposed, some suspended.
In May 2024, 14 pro-democracy activists were convicted of subversion under the national security law. They were among 47 charged with attempting to overthrow the government by organising an unofficial primary election in 2020 to select candidates for election to the Legislative Council.

Although the trial commenced only in early 2023, most of the defendants were denied bail, and had been incarcerated since they were arrested in January 2021. Responding to the guilty verdict, Beijing’s foreign ministry declared, ‘Hong Kong is a society based on rule of law... No one can conduct illegal activities under the banner of democracy and try to escape legal sanctions … We resolutely oppose certain countries intervening in China's domestic affairs and smearing or undermining Hong Kong's legal system by individual judicial cases.’

Foreign judges in the dock

The Court of Final Appeal (CFA) FA was established to consider appeals formerly heard by the Privy Council in London. In addition to its permanent members, it includes a panel of fourteen overseas non-permanent judges, who sit in rotation for a few weeks each year. Most are retired judges from the UK, Australia, and Canada. Their presence was designed both to clothe the Court with the stature enjoyed by its predecessor and, by remaining plugged into leading common law jurisdictions, to separate Hong Kong ‘s legal system from that of the mainland. It has sought, in a number of cases, to interpret the law in favour of freedom, but these interpretations are susceptible to substitution by those of the NPCSC. In the words of a leading former Australian judge who sat on the CFA for almost two decades, the court maintains the rule of law ‘in the shadow of the giant.’ 24

The recent disturbing developments have renewed calls for the non-permanent foreign judges on the CFA to resign, on the grounds that they legitimate China’s breach of the Sino-British Joint Declaration and the Basic Law, and as a response to Beijing’s alleged repression of Uyghur Muslims and other ethnic minorities in Xinjiang province.25

In 2020, former Australian Justice James Spigelman resigned following the enactment of the NSL. In 2022, Lord Reed, President of the UK Supreme Court, and his deputy, Lord Hodge quit, expressing their concerns about endorsing an administration that appeared to have ‘departed from values of political freedom, and freedom of expression.’ He added,

As everybody knows, there has been a gradual erosion in political freedom and consequently in freedom of speech in Hong Kong, which became progressively and noticeably worse in the latter part of last year and the early part of this year … I felt the time had come when we had to call it a day in the interests of the values that we represent.

Asked about the remaining UK non-permanent members of the CFA, all of whom were former members of the UK Supreme Court or its predecessor, he responded, ‘They’re not in the same position, I think, as a serving judge exercising public power in the UK.’26

In June 2024, two former members of the UK’s Supreme Court, Lord Collins and Lord Sumption, announced their resignation from the CFA.27 The former stated, ‘I have resigned from the court of final appeal because of the political situation in Hong Kong, but I continue to have the fullest confidence in the court and the total independence of its members.’28 Lord Sumption, who in 2021 described withdrawal as a ‘political boycott’, had clearly changed his mind.

Hong Kong’s Chief Executive, John Lee, voiced his regret at the resignations but defended his government’s reshaping of the city’s legal and political climate, declaring, ‘Hong Kong has transitioned from chaos to order. That did not change the human rights and freedoms enjoyed by citizens in accordance with the law. Nor did it change the courts’ exercise of independent judicial power, free from any interference.’

An authoritarian society?

Do the NSL, the crackdown on dissent, and, most conspicuously, the conviction of pro-democracy activists, combine to transform Hong Kong into an authoritarian society? The question of what constitutes such a regime is not uncomplicated.29 The literature oscillates between identification of its democratic deficit (the lack of free and fair elections), the personality of the leader (xenophobic, desire for order), and illiberal practices, ‘patterns of action that sabotage accountability to people over whom a political actor exerts control, or their representatives, by means of secrecy, disinformation and disabling voice.’30 In other words, according to this approach, the core of authoritarianism is the lack of accountability, the widely accepted definition of which is ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences.’31

This notion will suffice for the present discussion. It is not difficult to see how an absence of accountability facilitates the assault, not merely on the rule of law, but on democracy and human rights in general. Recent events in Hong Kong illustrate how effortlessly an unaccountable autocratic state can lay siege to a community where limited democratic values once existed.

The erosion of freedom in the territory does not, of course, lead ineluctably to the characterisation deployed in the case of apartheid South Africa or the Third Reich. This generates two questions, both of which I can only mention here. First, in what respect does the predicament faced by foreign judges resemble that experienced by permanent judges in those regimes? Secondly, are such judges comparable to their full-time counterparts, whose appointment, it seems fair to say, entails a more stringent set of obligations to the state? (It is worth pointing out that the conscientious resignations by foreign judges contrast markedly with those of judicial officers who are (a) ‘part of the community’, and (b) who encounter ‘hard cases’ that, in the Dworkinian model, might lead them to relinquish their post.)

Despite these differences, the resigning foreign judges appear to acknowledge that—in respect of the question of buttressing the legal system—their dilemma is not significantly different from that afflicting the judges considered earlier. In other words, while the situation in Hong Kong falls well short of the repression inflicted by the governments of genuinely wicked societies, these judges are no less troubled by the oppressive environment in which they are expected to work. Thus, in his article in the Financial Times explaining his decision to step down, Lord Sumption warned that Hong Kong was ‘slowly becoming a totalitarian state’. Andon 11 June 2024 he told the BBC that it had become increasingly clear that Hong Kong’s enhanced security laws were being used ‘to crush peaceful political dissent, not just riots,’ adding:

There is the problem that under the Basic Law, if China doesn’t like the court’s decisions, they can reverse them by what is called an interpretation, although it’s usually just a legislative intervention … It was initially unclear how frequently this would be used, but recent incidents have indicated that the Chinese are determined to use this provision in order to ensure that its opponents lose …I think that the picture is getting darker; the judgment on the 30 May against the 14 democracy activists was a major indication of the lengths to which some judges are prepared to go to ensure that Beijing’s campaign against those who have supported democracy succeeds.32

It is evident, therefore, that stepping down, in the minds of these judges, constitutes a recognition both of the extent to which unjust legal systems (in diverse ways) diminish the independence of the judiciary, and the accountability of judges for the complacency or complicity in the face of injustice. This, I like to think, supports the analysis I have advanced in this essay.

Conclusion

Judges are products of their domestic and social environment. But they judge, and may themselves be judged. Officials in immoral societies cannot expect to save their souls by appealing to the mechanical nature of their occupation. And—cruelly—moral officials seem doubly condemned: for participating in injustice, and for recognizing that they do so. Principled judges face yet a further indictment: that their very office proclaims a fidelity to justice. This must be an agonising and disquieting quandary. While, as moral agents, they have special duties that derive in part from their calling, their moral responsibility in an unjust society does not admit of any simple resolution.

A conundrum lingers. The idea of the ethical accountability of legislators in a malevolent legal system seems incongruous. Is this because it is unreasonable to fix individual lawmakers with responsibility for their immoral statutes, despite their connivance in fashioning the rudiments of the legal system? Or does it simply stretch the bounds of accountability beyond its practical purpose—because legislatures act on an institutional rather than a personal plane? We adopt, however, a different view of judges. Why? Is it because we regard their function (despite its institutional character) as a personal one?

Whatever the position, we should not underestimate the impact of a principled departure of an official whose very occupation embodies the pursuit of justice and who is, at least in theory, respected, impartial and, of course, judicious. Judges are not given to rashness; their pronouncement that the legal system’s deviation from the rule of law is too great to countenance can reverberate, albeit faintly, in the halls of government and beyond.

Raymond Wacks, Emeritus Professor of Law and Legal Theory, University of Hong Kong, is the author of seventeen books and editor of ten. Several of his works have been translated into more than a dozen languages. His publications include Personal Information: Privacy and the Law; Privacy and Media Freedom; Privacy: A Very Short Introduction; Law: A Very Short Introduction; and Justice: A Beginner’s Guide. Among his most recent books are Protecting Personal Information: The Right to Privacy Reconsidered, COVID-19 and Public Policy in the Digital Age, and National Security in the New World Order: Government and the Technology of Information (with Andrea Monti). The sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory was published in 2021, as was The Rule of Law Under Fire? Earlier this year Routledge published his Animal Lives Matter: The Continuing Quest for Justice.

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