Ever since the handover, Hong Kong’s Court of Final Appeal has appointed overseas judges from common law jurisdictions to sit in judgment over local cases. This practice is specifically provided for under Article 82 of the Basic Law and Article 92, giving Hong Kong judiciary personnel the power to appoint judges from other common law jurisdictions on the basis of their judiciary and professional expertise. The original intent of appointing overseas judges was to promote or strengthen the exchange of expertise between Hong Kong judges and their counterparts in other common law jurisdictions, so as to enrich the local judiciary in constitutional law, administrative law, international trade and finance cases.
The Hong Kong Special Administrative Region Basic Law has not stipulated these overseas judges must come from a particular jurisdiction. Over the years, overseas judges have made valuable contributions to our judiciary, especially in the initial stage after the handover. When Lord Robert Reed and Lord Patrick Hodge submitted their resignations as overseas judges in the Court of Final Appeal, it is not difficult for any reasonable person to agree that they did so at the behest of the British government out of its own political considerations. As they are still respectively the president and vice-president of the United Kingdom’s Supreme Court, in this juncture of history it is hardly a surprise. Hong Kong should look upon their departure with equanimity and may treat this as an opportunity to fine-tune our system pertaining to the appointment of overseas judges in accordance with the Basic Law.
I am confident that under the leadership of our Chief Justice Andrew Cheung Kui-nung, Hong Kong’s judiciary system will remain robust and our common law tradition will flourish and shine more in our neighborhood and in the world
I have been a law professional for over 30 years, seven of which as chairperson of the Judicial and Legal Affairs Panel at the Legislative Council, and have taken part in numerous screenings of appointments of overseas non-permanent judges. All along these years, members of our panel have noted the need for greater transparency in the appointment system, so that we may avoid appointing overseas judges who are simultaneously holding important posts in their home jurisdiction. There is also the concern that the appointments of overseas judges are overly dependent on two primary source countries: Britain and Australia.
Judges who hold key positions in their home jurisdiction leave them open to the impression that their views or actions are seen by the public as representing their own government. Once appointed, in situations where the interests of the two jurisdictions come into conflict, they unavoidably find themselves in politically embarrassing situations, with local and international repercussions. I therefore propose that in future, the judiciary should recruit only overseas judges who are either retired or are non-holders of public offices in their own country. In accordance with the Basic Law, Hong Kong always welcomes highly qualified overseas judges to serve our judiciary to uphold the rule of law in Hong Kong without any political agenda. In this regard, retired judges from overseas are in a much more transcendent position in exercising their judicial duties in Hong Kong.
The resignation of Lord Reed and Lord Hodge from Hong Kong’s Court of Final Appeal has caused quite a ripple. This is precisely because they respectively still serve the top posts as president and vice-president of the UK Supreme Court. Of course, they must be under relentless pressure to vacate their Hong Kong appointments from some members of the British Parliament who kept on demonizing Hong Kong for the promulgation of the National Security Law for Hong Kong. Not coincidentally for sure, on the day of their resignation the British House of Commons launched its debate on their Hong Kong appointments. While both judges had no hesitation in declaring that “The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law”, their expression of confidence did not stop them from resigning their positions — a clear sign that their resignations were a political decision under pressure from their own government.
Second, the present choice of source countries for the appointment of overseas judges is too narrow and not diversified enough. Since the handover, the selection of overseas judges is confined to just four countries — Canada, Australia, New Zealand and Britain — with Britain accounting for over half of the appointments. After the resignation of the two British judges, the Court of Final Appeal still has a roster of 10 overseas non-permanent judges, of which six are from the UK — this despite the fact that there are over 40 common law jurisdictions around the world with many outstanding judicial personnel. It is high time for Hong Kong to broaden its range of source countries for the intake of overseas judges. The sky has not fallen since the departure of the two British judges. We are thankful for their contribution to Hong Kong judiciary, but their departure shall be seen as a chance to improve our system of appointing overseas judges.
The comings and goings of judicial personnel is par for the course. I am confident that Hong Kong has all it takes to attract professionally independent judges to buttress our rule of law. From now on, we should reexamine our selection criteria and reach out to other common law jurisdictions for potential candidates. Singapore, Malaysia and some other common law jurisdictions are countries that come readily to mind. According to the Basic Law, our judiciary appoints overseas judges only on the basis of their personal expertise and professional credibility, not according to the country to which they belong. Besides, judges from these countries may adjudicate cases in relation to controversial social values and local culture, with a greater sensitivity to Asian values and the traditional family system. Their judgments might be better aligned with our core values.
Under “one country, two systems” and the protection of the Basic Law, Hong Kong’s judicial independence and the rule of law have been given the global thumbs-up. In June 2020, in accordance with the Hong Kong SAR Basic Law, Hong Kong promulgated its National Security Law in a manner consistent with international practice. It has been two years since its enactment. Hong Kong’s rule of law and judicial independence remains rock-solid, with its citizens enjoying freedom of expression and political liberties. According to the World Justice Project’s 2021 Rule of Law Index, Hong Kong ranks 19th out of 139 countries or regions, and fifth in Asia. One must note that during the British colonial period, Hong Kong did not have its own court of final appeal, with all final appellate cases referred to Britain’s Privy Council in London. After the handover and the implementation of the HKSAR Basic Law, Hong Kong has our own Court of Final Appeal in place. Our citizens no longer need to make their final appeal to London nor Beijing. This system is symbolic of our sovereign state’s strong confidence in our judiciary.
Over the last quarter-century, our Court of Final Appeal has processed numerous highly controversial and renowned cases. I am confident that under the leadership of our Chief Justice Andrew Cheung Kui-nung, Hong Kong’s judiciary system will remain robust and our common law tradition will flourish and shine more in our neighborhood and in the world.
The author, a barrister-at-law, is a member of the Hong Kong SAR Basic Law Committee.
The views do not necessarily reflect those of China Daily.