On June 30, the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region was enacted by the Standing Committee of the National People’s Congress. This new law was made under the auspices and mandate dated May 28 of the National People’s Congress, China’s top law-making body.

His Lordship’s (Lord Justice Robert John Reed) observations on a piece of foreign legislation are seemingly unnecessary, and thus the comments may be colored by ulterior non-legal factors. His Lordship may have fallen on the wrong side for jumping the gun before wearing the wig

On July 17, Lord Justice Robert John Reed, a law lord of England, made official statements concerning the National Security Law. The statements were widely reported by news organizations such as South China Morning Post, Reuters and RTHK on July 17 and 18, and are as follows:

“The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen.”

“Whether judges of the (United Kingdom) Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law.

“(The UK Supreme Court) will continue to assess the position in Hong Kong as it develops, in discussion with the UK government.

“The (UK) Supreme Court supports the judges of Hong Kong in their commitment to safeguard judicial independence and the rule of law.

“Undoubtedly, the judges of the (Hong Kong) Court of Final Appeal will do their utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that ‘the Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference’.”

A multi-fold concern arises in relation to the statements.

The first facet of our concern is whether a judge’s extrajudicial speaking/wording may backfire on him at a later stage. Central to judicial independence is impartiality in adjudication of judicial businesses. Simply put, “Not only must justice be done, it must also be seen to be done.” Yet, there have been occasions where a judge’s prior extrajudicial speaking and/or wording had reached the state of maturity in a form of a Ground of Appeal at the appellate level.

The case of Timmins v Gormley [2000] 1 All ER 65 (the Timmins case) is an example in this aspect. 

It concerned a negligence action arising out of a traffic accident. The appellant (the insurer) brought the trial judge, Recorder Braithwaite QC, to the Court of Appeal in England (the UKCA), alleging judicial apparent bias on the basis that the judge was “influenced by an unconscious but settled prejudice against the insurers”. In support, the appellant presented a number of academic articles published in legal reviews by Braithwaite evidencing his pro-claimant, anti-insurer attitude.

The Timmins case was heard at the UKCA together with four other appeals in a consolidated appeal case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, on the basis that a litigant had been refused disqualification of judges on the grounds of bias. The UKCA held that in the Timmins case, the articles demonstrated the judge is “very sympathetic” to the claimants in personal injury cases. A retrial was ordered because a reasonable bystander could not have excluded the possibility that the recorder may “unconsciously have leant in favour of the claimant” in deciding the case.

Some may argue that the judge is a productive academic journal contributor whereas Lord Reed is one of the main heads of the judiciary of England making statements as an administrator of justice. We wish to counter-argue that this observation gives rise to more questions than it answers. One new question is related to the justifying mechanism for Lord Reed on the soil of England to put a foreign Chinese legislation under the shadow of doubt under the cloak of judicial concern in the vacuum of a live legal issue. 

The second facet of our concern is that the National Security Law was duly made in accordance with the Chinese Constitution, the Hong Kong SAR’s Basic Law, as well as the two important international covenants, namely, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Hence, it would be extraordinary for His Lordship, in his capacity as a non-permanent CFA judge, to have made such remarks to challenge the NPCSC on an administrative basis outside the four walls of a law court.

In anticipation, we envisage that an appeal against conviction on a National Security Law offense will reach the Hong Kong CFA eventually, and if Lord Reed is to hear the appeal in His Lordship’s exercise of judicial duty as a non-permanent judge of the CFA, a real issue will arise as to whether His Lordship should consider self-rescue from an apparent judicial bias and/or a judicial embarrassment. 

The third facet of our concern is that Lord Reed’s comments appeared neither helpful nor constructive in assuring global confidence in Hong Kong’s legal system. The statements may well render His Lordship in direct conflict with the obligations imposed upon a Hong Kong judge under certain classes of Guide to Judicial Conduct (October 2004), which read as follows: 

“A perception that a judge is not impartial may arise in a number of ways, for instance, by a perceived conflict of interest,…or by the judge’s out-of-court associations and activities.” (Part B: Guiding Principles, item 21)

“Judges should… ensure that (other professional activities) do not affect the discharge of their judicial duties.” (Part E: Professional Activities Outside Court, item 73)

“A judge should avoid expressing views on controversial legal issues which are likely to come before the courts in a way which may impair the judge’s ability to sit.” (Part E: Professional Activities Outside Court, item 74)

It is trite that the parliamentarians make the law and the judges interpret the acts. We are of the view that the non-permanent judge of the CFA, Mr Reed, has erred in law to show his non-academic views on the National Security Law out of context of a real legal case.

In His Lordship’s official capacity as the president of the Supreme Court of England, Lord Reed was mindful of choice of soft words in raising “concerns”. Nonetheless, His Lordship’s observations on a piece of foreign legislation are seemingly unnecessary, and thus the comments may be colored by ulterior non-legal factors. His Lordship may have fallen on the wrong side for jumping the gun before wearing the wig.

Junius Ho Kwan-yiu is a Legislative Council member and a solicitor. Kacee Ting Wong is a barrister and a member of the Chinese Association of Hong Kong and Macao Studies.

The views do not necessarily reflect those of China Daily.