Chinese-only judges in top court would hurt Hong Kong

Victor Fung Keung says our effective legal system should be left alone

PUBLISHED : Wednesday, 28 November, 2012, 12:00am
UPDATED : Wednesday, 28 November, 2012, 5:47am

The call from a legal expert to appoint only Chinese judges to Hong Kong's Court of Final Appeal is alarmist and misguided. Such a move would only erode investors' confidence in the city.

Mainland scholar Cheng Jie, a former researcher for the Basic Law Committee, told a seminar this month that the Court of Final Appeal should be made up only of Chinese nationals. She said this would reflect the principle of Hong Kong people ruling Hong Kong. Alan Hoo, chairman of the Basic Law Institute, said she raised a valid concern.

Their remarks were made on the heels of former Secretary for Justice Elsie Leung Oi-sie's criticism of Hong Kong judges for failing to understand the relationship between Hong Kong and the Beijing government.

The city's top judge, Chief Justice Geoffrey Ma Tao-li, said last week that it was natural for Hongkongers to speculate about Leung's recent criticism of the judiciary. While speaking to a small group at Oxford University's Harris Manchester College, Ma said Leung had every right to voice her opinion, and Hong Kong's higher courts were subject to criticism like any other body. But her background and close ties to Beijing could lead people to believe she was voicing the views of certain interests in Beijing, he said.

Although the views of Leung and the two other legal experts were noble and informed, most people in this city, I believe, would beg to differ. Hong Kong's prosperity hinges on whether it can continue to be an international city. Foreign investors and businessmen would lose confidence if local top judges were influenced by politics in Beijing. Hong Kong's seven million inhabitants would become China's burden if the city lost its competitive edge.

We must be appreciative that Beijing has tried very hard to maintain Hong Kong's economic growth by sending us thousands of tourists and investments worth millions of dollars. But Beijing has never hinted that there's something wrong with our legal system.

Hong Kong's legal system prides itself on maintaining its independence and preserving the common law tradition. Any moves to ruin these can only hurt the city. The system has worked well since the handover. Why do we need to break it?

The Basic Law stipulates only that the top judge in both the Court of Final Appeal and the High Court must be Hong Kong Chinese. Other judges can be citizens of any nation as long as they are familiar with rules in common law jurisdictions. We should respect the Basic Law, shouldn't we? It is unwise to bring politics into Hong Kong's legal systems. If all the judges are local Chinese, what would foreign investors think? The first question they would ask is: "Why?" It wouldn't do Hong Kong any good if foreign investors have doubts.

At present, 10 of the 15 non-permanent judges of the Court of Final Appeal come from other common law jurisdictions such as Britain, New Zealand and Australia. If the Court of Final Appeal works effectively and fairly, let us keep it this way. It is unwise to tie our own hands as we face a very competitive and ever-changing world.

Justice Secretary Rimsky Yuen Kwok-keung should be lauded for saying that "the presence of overseas non-permanent judges helps to enhance the international reputation of our judiciary. Any proposal to impose nationality or residence requirements would unduly restrict the pool of talent that can be appointed as judges".

Fifteen years after the handover, many patriotic Chinese may be starting to focus on the "one country" and not the "two systems", believing that it's time for Hong Kong to be closely reintegrated, politically and economically, with the motherland. Their views should be respected. However, the reality is that Hong Kong can only survive as a world financial centre if it has a common-law legal system free of political intervention. We should build, not erode, people's confidence in Hong Kong.

Victor Fung Keung is a local commentator and co-ordinator of the B.S.Sc in financial journalism programme at Hong Kong Baptist University