On September 18, Hong Kong government published a notice saying that Chief Executive Carrie Lam revoked the appointment of Justice James Spigelman, an Australian judge, as one of the non-permanent judges in the Hong Kong Court of Final Appeal (CFA), reducing the total number of remaining overseas non-permanent judges of CFA to 13. This revocation, effective from September 2 onward, two years before the end of his tenure, was reportedly due to Justice Spigelman’s resignation from Hong Kong’s top court. Anyhow, it has dealt another blow to the city’s British-style common law legal system since China passed the notorious national security law applicable to Hong Kong. Although Justice Spigelman did not comment or explain exactly why he had decided to resign, Australian Broadcasting Corporation (ABC) reported that this 74-year old honorable justice had resigned from his role for reasons “related to the content of the national security legislation” passed on June 30.

It is beyond reasonable doubt that Justice Spigelman, or any sensible person in the judiciary, could have been dissatisfied with the national security legislation, as well as Carrie Lam’s latest announcement, one day before his resignation, that Hong Kong does not have any separation of powers among executive, legislative and judiciary. In other words, the judiciary in Hong Kong is now independent just in name only, if not a joke.

The new national security law, full of ambiguous terminologies, broadly prohibits acts of secession, subversion, terrorism and collusion with foreign forces, and is targeted at punishing and wiping out pro-democracy and pro-autonomy campaigners and dissidents. Such new legislation overrides the Basic Law and all other Hong Kong laws, including the Bill of Rights Ordinance of Hong Kong (Cap 383). It may also be exclusively interpreted by the National People’s Congress Standing Committee of China, not by the court. Chief Executive is entitled to select judges to form a panel of jurists to handle court cases about national security. Chief Executive may issue a certification order to confirm certain acts or evidence as endangering national security of China, and such a certification order will be binding all judges. In serious cases, if a Hong Kong judge inclines towards exonerating certain suspects or defendants from national security charges, such suspects or defendants may be taken to mainland China for detention, trial and punishment, all of which are expected to be fully manipulated by China.

If we stand in the shoes of Justice Spigelman, we can fully understand and respect his decision. The so-called “one country, two systems” was long gone. British-style common law legal systems, especially constitutional safeguards to protect human rights and liberties, to a certain extent backed by the Bill of Rights Ordinance, the Basic Law and a series of judgments handed down after judicial review by the Hong Kong Court of Final Appeal, were first crippled and then scrapped. Such a tragic development and prospect would upset any judge striving to uphold an independent judiciary, logical reasoning and fair trial. For any court case related to national security, a judge in Hong Kong cannot turn the tide or simply make a difference, as the new national security legislation is already built-in tactical rules to override and bypass any of such contravening decisions. This is very sad, but the tough decision made by Justice Spigelman now needs to be carefully considered by each and every judge in Hong Kong.

Justice Spigelman was born in Poland in 1946. He migrated to Australia with his family in 1949. His parents, Gustawa and Majloch, were Holocaust survivors. In other words, he might have “inborn antibody” against any Nazi-type or Communist-type autocratic or totalitarian regime. He first studied arts and then law. He participated in and helped to organize the 1965 Freedom Ride, a project undertaken by students to arouse attention to problems faced by indigenous communities in New South Wales (NSW) of Australia. He served as the Chief Justice of NSW in 1998-2011, and then the Chair of ABC in 2012-2017. In view of the above, would he ever be possible to be a whole-hearted supporter of the new national security law of China against Hong Kong? The answer must be an absolute no.

Because of “two systems” and common law practice in Hong Kong, depsite only superficially, Justice Spigelman started to sit on the CFA of Hong Kong as a non-permanent judge from other common law jurisdictions in April 2013. However, the “gray rhino” was already existent in the crippled system of Hong Kong. When such a “gray rhino” bit, coupled with the appearance of a “black swan”, and when he anticipated that he could not turn the tide, he chose to quit, so as to keep his hands clean and also to send an unequivocal, yet silent, signal to the whole world that the free world should not treat Hong Kong the same as before, because Hong Kong is no longer the same. More action is yet to be taken.

I would anticipate that Justice Spigelman’s resignation might enlighten some other overseas or even some local non-permanent judges now serving the CFA of Hong Kong on their professional careers. More resignations are yet to come, in spite of more likely to be in a gradual manner. This is because what caused him to resign is not unique to him, but is common to all judges in Hong Kong. Retired judge Kemal Bokhary once said in 2012 that clouds heralding a storm of unprecedented ferocity were gathering over the rule of law in Hong Kong. Now the storm is hitting harshly against Hong Kong. The international free world needs to closely monitor the situation and consider and take proper actions accordingly.

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