There is a growing sense of discomfort at the judiciary becoming a subject for public debate. The first charge was brought by the former secretary for justice Elsie Leung Oi-sie, who accused Hong Kong's top court of making "mistakes" in its right of abode ruling a decade ago. Then, only a few days later, the nationality of our judges was put under the public spotlight. According to a prominent mainland scholar, the Court of Final Appeal should only be presided over by Chinese nationals to reflect the principle of Hongkongers ruling Hong Kong. It is disturbing to see the judiciary being cross-examined on its composition and landmark judgments by influential figures outside the court room.
The latest call to remove overseas judges from the top bench raises serious concerns about our legal system. The arrangements for the top court were thoroughly discussed by Britain and China two decades ago. After years of negotiation, it was agreed that overseas judges may serve on a non-permanent basis. The decision enables the judiciary to tap foreign talent and maintain links with other common law jurisdictions. It also plays a part in strengthening jurisprudence. The system, on the whole, has been working well.
The Basic Law clearly recognises the contribution by overseas judges and has therefore allowed flexibility in appointments. Article 82 stipulates that the top court may, as required, invite judges from other common law jurisdictions to sit on the bench. Article 92 says judges shall be chosen on the basis of judicial and professional qualities. Nationality, therefore, should not be on obstacle.
Critics argue that since top officials in the executive arm cannot be foreign nationals, it makes sense to impose similar rules on top judges. But Article 90 only imposes nationality restrictions on the chief justice and the chief judge of the High Court. Further restrictions are not only unnecessary, but might also narrow the talent pool from which judges can be drawn.
Confidence in the judiciary will be undermined if the court is seen to be under pressure. It was good to see both Secretary for Justice Rimsky Yuen Kwok-keung and former chief justice Andrew Li Kwok-nang speaking up for the rule of law in troubling times. The implementation of "one country, two systems" will not be a success without the rule of law and judicial independence. The continuation of overseas judges is one way to show our common law system is alive and kicking.