Janice R. Andrews
British Judge Lord Nicholas Phillips Steps Down from Hong Kong Court
In an unexpected development, British judge Lord Nicholas Phillips, 86, has announced his departure from Hong Kong’s Court of Final Appeal (CFA), choosing not to renew his position. Phillips, a distinguished jurist from the UK, has served on the CFA since October 1, 2012, completing a 12-year tenure. The former President of the Supreme Court of the United Kingdom will step down on September 30, 2024, citing “personal reasons” for his decision.
Phillips’ resignation marks the fourth exit of an overseas judge from Hong Kong’s highest court this year, following the departures of British judges Lawrence Collins and Jonathan Sumption, and Canadian judge Beverley McLachlin. While Collins and Sumption referenced political factors for their exits, Phillips has maintained that his personal reasons are unrelated to political considerations.
Legacy and Judicial Independence
The Hong Kong Judiciary has expressed appreciation for Phillips’ invaluable contributions to upholding the rule of law. A spokesperson commented on Sunday, “Lord Phillips has made a lasting impact on the legal community during his tenure, and we respect his choice not to pursue an extension.” His service was also recognized with Hong Kong’s Gold Bauhinia Star in 2023 for his dedication to the legal system.
Despite the recent resignations of foreign judges, the Judiciary emphasized that overall confidence in judicial independence remains strong. “A vast majority of the serving and departed non-permanent judges have publicly reaffirmed their continued trust in the independence of the judiciary in Hong Kong,” the spokesperson added. Phillips himself had stated in 2022 that he was “completely satisfied” with the independence and integrity of the CFA.
Political Climate in Hong Kong’s Legal System
Phillips’ departure occurs against the backdrop of foreign judges resigning amid concerns over the political environment in Hong Kong following the implementation of Beijing’s national security law in 2020. Critics argue that the law has undermined the city’s common law tradition and judicial independence, which has historically benefited from the expertise of overseas judges.
Sumption, in his June resignation, authored a strongly-worded opinion piece in the Financial Times, expressing concerns about the “oppressive atmosphere” and restrictions on judicial freedoms in Hong Kong. The Hong Kong government promptly responded, dismissing his claims as “completely unfounded.”
Despite the departures, six foreign judges remain on Hong Kong’s CFA, including South African-British judge Leonard Hoffmann and four Australian judges. The Judiciary is actively seeking new non-permanent judges to fill the vacancies left by the recent exits, ensuring that the CFA’s operations will continue uninterrupted.
International Judges: A Cornerstone of Common Law Credibility
The presence of overseas judges has long been a cornerstone of credibility for Hong Kong’s common law system. Their expertise and international standing lend legitimacy to a legal system that, despite political pressures, has maintained a degree of independence.
However, the Committee for Freedom in Hong Kong Foundation, a UK-based NGO, has urged foreign judges to step down, arguing that their continued presence tacitly endorses Beijing’s crackdown on political freedoms in the city. The report highlighted the growing challenges faced by judges in preserving the integrity of Hong Kong’s legal system in the face of mounting political pressures.
The controversial national security law, enacted in June 2020, criminalizes subversion, secession, and collusion with foreign forces, resulting in hundreds of arrests and a chilling effect on civil society. Critics argue that the law has curtailed freedoms, while supporters claim it has restored stability to the city after a year of pro-democracy protests in 2019.
Distinguished Legal Career
Lord Nicholas Phillips has had an illustrious career in the judiciary, serving as the most senior judge in England and Wales from 2005 to 2008. He later became the inaugural President of the Supreme Court of the United Kingdom, a position he held from October 2009 until his retirement in 2012.
Phillips was among the first international judges appointed to Hong Kong’s Court of Final Appeal, a role that involved flying into the city on an ad-hoc basis for hearings. British judges were typically compensated around £40,000 per visit, with accommodation and travel expenses covered.
His departure from the CFA will conclude a significant chapter in his career, leaving behind a legacy of legal rigor and commitment to upholding the rule of law. While his decision was motivated by personal factors, it also reflects the broader changes within Hong Kong’s judiciary and the delicate balance between judicial independence and political realities in the region.
The Future of Hong Kong’s Judiciary
As Phillips departs, Hong Kong’s Judiciary continues its search for suitable replacements from both local and overseas legal communities. Despite the challenges posed by the departure of several foreign judges, the Judiciary maintains that the operations of the CFA will proceed smoothly, with the court handling its caseload effectively.
In the ever-changing political and legal landscape of Hong Kong, the role of foreign judges will remain under scrutiny, particularly as the city navigates the aftermath of the national security law. For now, the Judiciary remains committed to upholding the rule of law, even as it faces increasing pressure from international observers and local authorities alike.
