The Challenge: New Authoritarian Reality Confronting Hong Kong Courts

The environment in which Hong Kong courts operate has fundamentally shifted since the enactment of the Hong Kong National Security Law (NSL) in the aftermath of the 2019 protests. What started out as a peaceful demonstration against a bill that would have allowed Hong Kong people to be extradited to mainland China for trial morphed into the largest pro-democracy movement in post-handover Hong Kong. The Chinese Communist Party interpreted the protests as attempts to subvert state power, and felt that there was a security gap that ought to be plugged.Footnote ¹ One response was to pass the NSL in 2020. The law was drafted behind closed doors by the Mainland Chinese authorities with no public consultation in Hong Kong.Footnote ² A senior Chinese official in charge of overseeing Hong Kong and Macau affairs described the NSL as part of a broader policy to “combat anti-China forces.”Footnote ³ National security crimes are vaguely defined, interpretation of the NSL is vested with Beijing, and security enforcement agencies are granted wide-ranging powers to enforce the NSL.Footnote ⁴ As Surabhi Chopra and Eva Pils observe, the NSL “has drastically thinned out the range of civil society actors advocating for civil and political rights, separation of powers and democratisation, as well as the range of opinions that can be comfortably aired.”Footnote ⁵

These political changes have had profound effects on the judiciary’s institutional health. Before 2020, Hong Kong courts were largely successful in navigating the political circumstances of post-handover Hong Kong. Widely considered as strategic and savvy, Hong Kong judges deferred on issues that touched the prerogatives of the Chinese authorities while asserting themselves forcefully outside those areas.Footnote ⁶ The judiciary served as a meaningful check on undemocratically elected political representatives, and, as Eric Ip writes, is “the only political organ that has ever succeeded in continually resisting Beijing in the constitutional history of the People’s Republic of China.”Footnote ⁷ The Hong Kong authorities almost always complied with judicial decisions, and the public generally held the judiciary in high regard.Footnote ⁸

The passage of the NSL, together with the overhaul of Hong Kong’s electoral system to effectively eliminate meaningful political opposition,Footnote ⁹ marked Hong Kong’s sharp turn toward pure authoritarianism. These dramatic changes created unprecedented challenges for the judiciary. Public trust and confidence in the judiciary suffered a major blow, scoring record-low ratings in polls and surveys since 2019.Footnote ¹⁰ In addition to losing in the court of public opinion, some Hong Kong judges have also been questioned by the authorities over their “loyalty.” Pro-Beijing elites and government officials have suggested reforming the judiciary, including by only allowing “patriotic” judges to stay in office.Footnote ¹¹

If we assume judges behave strategically and have an interest in preserving judicial authority, then it is likely that the goals of the Hong Kong judges have changed given the new political landscape: While judges of previous eras may have harbored ambitions to meaningfully advance liberal constitutional norms, after the enactment of the NSL, institutional survival, that is, the preservation of the judiciary’s power and integrity, is now perhaps their top priority. Extremely deferential judicial decision-making patterns are emerging when it comes to NSL cases.Footnote ¹² The apex court in Hong Kong, the Court of Final Appeal, has also effectively confirmed the reversal of presumption of bail for NSL cases, departing from its previous commitment to protecting people’s rights and procedural fairness.Footnote ¹³

Judicial Responses: Out of the Cocoon and Into the World

Particularly relevant is the social side of judicial strategizing that is currently happening in Hong Kong. On top of adjudicative strategies, Hong Kong judges are noticeably reliant on non-adjudicative strategies to address the institutional risks they face. The current chief justice, Andrew Cheung, has on several public occasions made statements to assure the local and international communities of the judiciary’s independence and its commitment to the rule of law.Footnote ¹⁴ The judiciary also started to live-broadcast some of its proceedings in 2024, with the hope to, as per Cheung CJ, “increase transparency and bolster confidence in the legal system.”Footnote ¹⁵ To use the language of the proposed double typology, in response to growing skepticism over whether the judiciary can remain independent, Cheung CJ has attempted to rely on public relations strategies for legitimation purposes and to improve the judiciary’s social standing.

The chief justice had also sought to use public relations strategies to establish more amicable ties with the national authorities, effectively engaging in alliance-building. For instance, during the celebratory speech of the twenty-fifth anniversary of the establishment of the Hong Kong SAR, President Xi Jinping described Hong Kong as having “independent judicial power,” which, in the Chinese language, is a concept that is distinct from “judicial independence.”Footnote ¹⁶ Independent judicial power refers to the idea that judges should be free from undue interference when exercising their adjudicative powers, whereas judicial independence can be interpreted as implying the curtailment of political powers. Judicial independence, along with separation of powers, were constitutional principles entrenched in Hong Kong’s jurisprudence in the two decades following the handover.Footnote ¹⁷ In recent years, however, Chinese authorities have openly rejected them, labeling them as “western ideals.”Footnote ¹⁸ In 2017, the president of China’s Supreme People’s Court told its officials to “bare your swords towards false western ideals like judicial independence.”Footnote ¹⁹ In response to Xi’s statement, Cheung CJ adopted the term “independent judicial power” in his extrajudicial response.Footnote ²⁰ By affirming Xi’s remarks, this could be interpreted as an effort by the chief justice to demonstrate the judiciary’s alignment with the state.

Meanwhile, Cheung CJ, together with other leaders of the judiciary, would also visit Beijing and meet with their counterparts as well as representatives of other law-related political bodies in Mainland China.Footnote ²¹ These trips were portrayed as professional knowledge exchanges, but were also seen by the media as part of a broader strategy by the Hong Kong government to foster greater “integration” into Mainland China’s development.Footnote ²² Or in other words, the visits were a form of judicial diplomacy to fortify the judges’ alliance-building efforts.

While the judicial leaders are busy finding ways to navigate through rough seas, some liberal-minded judges have pursued another set of non-adjudicative strategies. Several Hong Kong judges conducted anonymous interviews with the foreign press. In these interviews, which could be interpreted as a form of judicial backchanneling, those judges expressed their reservations and disappointment with constitutional legal developments in Hong Kong.Footnote ²³ In an interview with VICE World News in 2021, a judge described a high-profile NSL verdict as “unfair,” criticizing its reliance on a “questionable” understanding of the law and the trial’s lack of a jury.Footnote ²⁴ Comparing the NSL to a heart disease, the same judge commented, “if the [NSL] continues to develop, it will lead to cardiac arrest.”Footnote ²⁵ In another interview with Reuters in 2020, published shortly before the passage of the NSL, a judge expressed their concerns, noting, “we’re worried that [the Chinese authorities] are losing patience, and will find ways of tightening the screws,” forewarning what the future lies ahead for Hong Kong’s constitutional order.Footnote ²⁶ By speaking off the record, these judges may have aimed to draw the attention of the international community and potentially mobilize crucial stakeholders, such as the legal community and those with vested interests in Hong Kong’s constitutional development, to put pressure on both the local and national authorities.

Some foreign judges also decided to remove themselves from the Hong Kong judiciary in protest against authoritarian encroachment. The Court of Final Appeal has an established practice of having overseas judges on the bench, typically from common-law apex courts such as Australia, New Zealand, and the UK, jurisdictions that once was described by the city’s post-handover inaugural chief justice as having “the closest affinity” to Hong Kong.Footnote ²⁷ This arrangement is a contributing factor that has facilitated Hong Kong judges’ inclusion in a transnational network of common-law judges, as evidenced by frequent and regular judicial exchanges between Hong Kong and common-law jurisdictions.Footnote ²⁸ According to a senior judge in Hong Kong, foreign judges exist to “provide a valuable external affirmation of the health of the rule of law in Hong Kong and the independence both of the Court and the Hong Kong Judiciary.”Footnote ²⁹

Two foreign judges from the UK, Lord Reed and Lord Hodge, have, however, recently resigned.Footnote ³⁰ Lord Reed’s resignation statement reads: “I have concluded, in agreement with the [UK] government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression.”Footnote ³¹ Baroness Hale of the UK cited “personal reasons” for refusing to renew her appointment in 2021, and Australian judge Spigelman left the court in 2020, allegedly due to “the content of the national security laws.”Footnote ³² These resignations have been interpreted by commentators as evidence of the decline of Hong Kong’s judicial independence.Footnote ³³ Considering that the judiciary plays a significant role in upholding the city’s status as an international financial center, these instances of self-removal signal to businesses who plan to invest, foreign governments with stakes in the city’s affairs, and the Hong Kong government about the city’s future economic competitiveness.

Are the Non-adjudicative Strategies Successful?

This leaves us with the question of whether the two strands of strategies – the radical approach adopted by the liberal-minded judges and the conciliatory approach taken by judicial leaders – prove effective in achieving the presumed objective of institutional survival. Although it may be premature to draw definitive conclusions since Cheung’s tenure as chief justice only started in 2021, a preliminary assessment can be offered based on observations so far.

Regarding the techniques pursued by the liberal judges, there is no question that their remarks and resignations have successfully captured the attention of the international community, thereby delegitimizing authorities in Hong Kong, at least from the perspective of the liberal segment of the international community. We are also witnessing frequent and persistent calls by activists in Hong Kong and elsewhere urging the remaining foreign judges to follow suit and step down.Footnote ³⁴ Interestingly, the local and national authorities have refrained from responding to the comments made by the anonymous interviewees. The Hong Kong government has even attributed the departure of those foreign judges to “the external political pressure” put on those resigning judges instead of blaming the judges themselves.Footnote ³⁵ Thus far, these strategies have not produced any noticeable repercussions on the judiciary, and the practice of having foreign judges on the bench remains intact.

On the other hand, the political pressure generated by these radical strategies has not translated into tangible outcomes to the benefit of the city’s judiciary either. NSL and the hawkish stance of the local and national authorities persist, and there are no indications of plans to change course. Additionally, the approach by those liberal judges carries risks. One such risk is the potential reinforcement of Beijing’s suspicion toward the local judiciary, potentially paving the way for future reforms. Furthermore, concerning the resignations of foreign judges, although this has not yet transpired, there have been calls from legislators to replace them with non-Western foreign judges, such as those from Singapore and Malaysia,Footnote ³⁶ allegedly because these judges have a “greater sensitivity to Asian values and the traditional family system” and so “their judgments might be better aligned with [Hong Kong’s] core values.”Footnote ³⁷

What about the strategies employed by the judicial leaders? Their legitimation strategies may have helped regain the trust of the general public. Polls and surveys indicate that the public’s perception of the judiciary’s fairness and impartiality has been slowly recovering in recent years, although it has not yet reached the pre-NSL levels.Footnote ³⁸ More importantly, there is evidence to suggest that attempts at alliance-building have helped bolster the confidence of Mainland officials in the judiciary. After the judicial leaders’ visit to Beijing, the director of the Hong Kong and Macau Affairs Office, Xia Baolong, “fully affirmed” the Hong Kong judiciary’s vital role in safeguarding national security and upholding the rule of law.Footnote ³⁹

The leaders’ emphasis on appealing to Beijing similarly comes at a cost, particularly in terms of international credibility. This is exemplified by a recent bill proposed by a group of American lawmakers, which sought to impose sanctions on forty-nine Hong Kong officials for “human rights violations,” including seventeen local judges.Footnote ⁴⁰ Cheung CJ, alongside leaders of the lower courts, are also in the list. In the past, political attacks by foreign officials against the Hong Kong government or its officials rarely, if ever, involved members of the judiciary, presumably because the judiciary was generally seen as impartial. However, due to the judiciary’s handling of NSL cases and perhaps the leaders’ perceived strong preference for Chinese audiences, the old view has eroded among certain segments of the international community, as evidenced by the inclusion of judges in the bill.

Hong Kong’s judiciary is currently faced with the reality that Beijing maintains the capability and willingness to override the guarantees outlined in the Basic Law whenever it deems necessary. Earlier this year, the political authorities introduced yet another national security law.Footnote ⁴¹ The two strategic approaches described create clear tensions that impact the judicial institution in distinct and arguably opposing ways. Comparing them then, which has been more effective? Given these circumstances, and assuming once again that the judiciary’s overall objective is to weather the storm, it appears that the conciliatory strategies employed by the judicial leaders prevail and yield greater results. A judiciary that enjoys the trust of the authorities is likely to reduce the likelihood of attempts to curtail or pack the courts. Moreover, Beijing appears impervious to international pressure concerning Hong Kong affairs, and the liberal judges’ attempt to gain political leverage has not resulted in discernible improvements for the judiciary or the constitutional order.

Lessons for Studying Non-adjudicative Strategies?

Applying the typology set out in the chapter, we can more clearly see how Hong Kong judges have sought to address the institutional pressures arising from the NSL by tapping into their social capacity, as well as differentiate between the various kinds of non-adjudicative strategies they used. Also, as briefly highlighted, even though the judges surveyed might all share the same motivation of maintaining the judiciary’s institutional position, different kinds of strategies with potentially conflicting social effects were pursued. This should not come as a surprise, however. After all, the judiciary is not a monolithic entity. Judges within the same institution may have different preferences and ideologies, or even different interpretations of the empirical reality surrounding them, hence leading to different strategies being pursued. The judges with more liberal inclinations may perceive the NSL as a pivotal moment that could make or break the judiciary; on the other hand, judicial leaders may hold another perspective and still see a potential opportunity for the judiciary to gain some breathing room.

The story of Hong Kong judges’ struggle with the NSL may still be unfolding, but what else can this case tell us about the study of non-adjudicative strategies?

First, the case of Hong Kong reinforces the notion that non-adjudicative strategies can play a role in both democracies and authoritarian regimes, although potentially with different mechanisms at work. Some might assume, not without good reason, that non-adjudicative strategies are only relevant or effective in jurisdictions with at least minimal electoral competition. Jeffrey Staton, for instance, has famously argued that judges in Mexico employed non-adjudicative strategies to build and maintain public support to deter attempts by political actors to attack or defy the court; the underlying logic there posits that electorally accountable actors would hesitate to undermine a popular court considering electoral backlashes.Footnote ⁴² However, even in Hong Kong where effective electoral connection no longer exists and political authorities face no electoral repercussions for targeting the judiciary, we can still find judges deploying non-adjudicative strategies. This is because non-adjudicative strategies come in many different forms and serve purposes beyond solely legitimatizing the judiciary in the public’s eyes, as suggested previously. Some of these strategies, for example, enable judges to directly communicate with their intended to foster closer connection audiences (such as the Mainland Chinese authorities in the case of Hong Kong), or to activate protection from audiences beyond the general public (such as the liberal-minded judges attempts to rally support from the business, legal, and international communities).

Second, and relatedly, it could even be argued that non-adjudicative strategies hold particular significance in authoritarian settings. In Hong Kong, judges employed non-adjudicative strategies alongside adjudicative ones to address institutional challenges. Nevertheless, critics such as Yan-ho Lai and Thomas E. Kellogg have raised doubts about the continued efficacy of adjudicative strategies that had previously bolstered the judiciary’s social legitimacy prior to the city’s shift toward authoritarianism in 2019.Footnote ⁴³ The reason for this, they argue, is that formal changes in laws have severely restricted the scope of judicial maneuvering, thereby frustrating these adjudicative strategies. In such scenarios, alternative solutions beyond adjudication may be the kind of “mitigation strateg[y]”Footnote ⁴⁴ that judiciaries under authoritarian pressure are desperately seeking. Courts in authoritarian regimes may simply have no choice but learn to play authoritarian politics if they intend to maintain their institutional power. Hence, non-adjudicative strategies may be an especially salient topic in these settings. This, together with the fact that the effective implementation of non-adjudicative strategies does not seem to rely on the existence of competitive elections, underscores the importance for scholars, especially those interested in authoritarian constitutional studies, to broaden their investigation and look into judicial responses beyond the confines of the courtroom.

Third, in Chapter 7, we have discussed in theory some of the strategic functions of the non-adjudicative strategies. However, non-adjudicative strategies may not also produce the judges’ desired outcomes. As the analysis on Hong Kong shows, when assessing whether these strategies actually make a difference, it is essential to examine them within the specific context, taking into account the strategies’ recipients and their reactions. Relatedly, it is crucial to recognize that deploying non-adjudicative strategies often comes with associated costs, some of which have been briefly highlighted in Chapter 7. The same non-adjudicative strategy, when deployed by judges operating within different political contexts, can yield different consequences, as the exact effects a non-adjudicative strategy generates depend on the prevailing political climate, the level of judicial independence, and the dynamics between the judiciary and other sociopolitical actors. Considering these contextual factors is crucial when assessing the real impact, both positive and negative, of non-adjudicative strategies utilized by judges within diverse political environments.

Fourth, the case exemplifies the strategic interplay between adjudicative and non-adjudicative techniques. Adjudicative strategies can complement non-adjudicative strategizing, or lead to blowback, and vice versa. For instance, the Hong Kong courts’ conservative adjudicative strategies in relation to NSL cases were arguably enhanced by judicial leaders’ efforts to build closer ties with mainland authorities outside the courtroom, but these may have been undermined by the strategies adopted by the liberal-minded judges. Their resignations, together with the anonymous interviews, go against adjudicative and non-adjudicative efforts to assuage local and international constituencies.Footnote ⁴⁵ While beyond the scope of this book, empirical studies will be needed to measure how adjudicative and non-adjudicative strategies interact, which will help inform future discussions on this topic.