WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
June 18 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

‘Canaries in the coal mine’ for judicial independence

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‘Canaries in the coal mine’ for judicial independence

Uyghur re-education camp in Xinjiang

On Wednesday night, violet light bathed landmarks across the UK, from the Houses of Parliament to the Tyne Bridge, commemorating the tragedy of the Holocaust. In remembering what was done to the Jewish people by Nazi Germany, there is the implicit, if not explicit, promise that we, as liberal democracies, will not let such a tragedy happen again. 

But even as we light candles and place them in our windows, and as politicians stand behind lecterns decrying bigotry and intolerance, we are breaking our word.  In China’s Xinjiang Province, Uighur Muslims, a oppressed minority, are being marched into labour camps, their heads shaved so that they can cater to western whims for wigs with real hair.  

It is easy to try and distinguish these events, explaining why the circumstances that the Uighur Muslims face in China are different to those faced by the Jewish community and the other groups deemed ‘degenerate’ by Nazi Germany.  In his statement on Holocaust Remembrance Day, President Biden recalled listening to his father talk about ‘the horrors of the Holocaust’ and the Nazis’ ‘campaign of systematic mass murder’, and his father’s passion that ‘we should have done more’.  But doing more when the Nazis were filling mass graves was already much too late. More was for when Jews were banned from the German civil service. More was for when Jews were stripped of citizenship. More was was for when Jews were forced into ghettos. 

The chance to do more for the Uighurs is one that the western world has not yet lost.  But we are still gripped by much of the same paralysis and naivety that afflicted us in the 1930s.  Then, the world was well aware of what the Nazis were doing to the Jewish people, yet America, and Britain, and other safe nations still sent Jewish people back from their shores, refusing their pleas for asylum, all while doing little to meaningfully challenge Nazi Germany.  Today, while America has been willing to accuse the Chinese of genocide, and while Dominic Raab, the UK Foreign Secretary, has condemned the ‘torture’ of the Uighurs and the ‘barbarism’ of the Chinese state, China has still to face little real consequence for its reprehensible actions. 

Obviously, taking measures against the world’s second richest country is a herculean endeavour.  Given our current circumstances, the scale of the challenge appears even more insurmountable, with most of the liberal world flailing against the coronavirus while China’s economic leviathan forges relentlessly on. But there are levers available for liberal democracies to pull, particularly if Europe and the US act in concert.

Already, the UK government has imposed trade restrictions that ostensibly prevent the supply and sale of goods produced in breach of human rights, but it recoiled from the more potent proposal put forward by the Lords to its trade bill earlier this month.  If the Lords’ amendment had been accepted, it would have meant a finding of genocide by the High Court would have erected significant barriers to trade with the offending nation- a damning indictment of China.  Instead, the UK resembles Macbeth, willing to make bold promises, but lacking the courage to screw them to the sticking place.  Perhaps with the Oval Office now occupied by a President who seeks to challenge tyrants and dictators, not ‘fall in love’ with them, the possibility of exerting meaningful, coordinated pressure on China is more real, particularly as vaccines beat back the threat of the coronavirus. 

Nor should the persecution of the Uighurs be seen in isolation. Instead, it should be seen as part of Xi Jinping’s attempt to consolidate his power across China, of which the seizure of Hong Kong last year is an equal part.  In blatant violation of international law, Jinping tore up the handover agreement between Britain and China, stamping the Chinese state’s control on Hong Kong’s fragile independence. Hong Kong is now a democracy in name alone, if even that, with foundational principles like the separation of powers openly flouted.  Carrie Lam, Hong Kong’s Chief Executive, has candidly admitted that all  three parts of the state- the executive, legislature, and judiciary- ultimately answer to Beijing, while fundamental rights like freedom of speech have been crushed under Xi’s heel.  

Once more, Britain’s government acted commendably, with Raab extending British citizenship to millions of Hong-Kongers, some of whom who have already sought sanctuary in the UK.  But the strength of this action is in part undermined by UK judges continuing to lend their dignity and gravitas to Hong Kong’s justice system, and by extension, China’s conception of justice.  David Perry QC, who initially accepted the Hong Kong government’s instructions to prosecute some of the free speech dissidents, was right to bow to pressure in the UK and withdraw from the brief. 

There is a crucial distinction to be drawn between upholding or representing unjust interests in a just system, and doing the same in an unjust one.  Procedural justice is as much a part of the rule of law as substantive – to look back on World War II once more, no liberal would have denied the defendants the right to counsel at the Nuremberg trials, or attacked the barristers who offered them counsel. Dinah Rose QC’s representing the Cayman Islands government in the gay marriage case before the Privy Council this week is is not analogous to David Perry’s initial decision to prosecute the protesters.  No one doubts the legitimacy of the Cayman Island’s constitution, or the independence of the Privy Council. 

A justice system where the executive can select who hears what case is no sort of justice system at all, and it is unfortunate that our judiciary are still willing to dignify Hong Kong’s with their presence. Although no doubt motivated by the best of intentions, and mourning the puppet-state that Hong Kong has become, they would best serve the interests of justice by resigning en masse, issuing a statement condemning China’s usurpation of power in Hong Kong.  Four years ago Lord Neuberger spoke to the University of Hong Kong, saying that the UK judges were the ‘canaries in the coal mine’ for judicial independence and the rule of law in the territory.  So far, they have proven to be remarkably resilient canaries. 

In an ideal world, China’s actions, both against the Uighurs and the Hong-Kongers, would see it treated as a pariah state, cast out from the international community.  The economic reality we face should not, however, see business continue as usual.  The resignation of UK judges from the bench will not dent Hong Kong’s economic status, nor lead to London firms abandoning their outposts, but will show the world that China no longer even pretends to share values with the world’s liberal democracies. Our judges cannot hold back the tide, and should stop pretending they can.