In defence of Hong Kong's judiciary
Dennis Kwok says amid attacks on foreign judges, Hong Kong's common law tradition must be protected
Among the three branches of government in Hong Kong, our judiciary has borne the brunt of recent attacks from Beijing and the local pro-establishment camp.
In our legislative branch, not only does the current method of returning half the members from functional constituencies guarantee that a certain number of seats will be secured by the pro-establishment camp, the split-voting system also ensures that even as a minority, the pro-establishment/business sector still has a decisive say on legislative matters.
In contrast, with its long tradition of independence, the judicial branch has been firmly resistant to external interference of any kind and remained politically neutral throughout the past 17 years.
Recently, there have been attempts by the Democratic Alliance for the Betterment and Progress of Hong Kong and other pro-establishment groups to attack the judiciary, so as to undermine the authority and stature of the courts and judges.
The recent allegation by a DAB legislator that judges had "wrongly" released those "rightly" arrested by the police during the Occupy movement is one such example.
On the occasion of the 25th anniversary of the promulgation of the Basic Law, there have been various forums and conferences reflecting on past experiences and future developments of the law. It is a pity that these have become occasions for expressing biased interpretations of the Basic Law and opportunities to further criticise the judiciary.
One particular remark by a high-profile mainland official was especially worrying. He expressed concern that foreign judges sitting in Hong Kong courts do not understand the Basic Law and laws on the mainland and they would thus be a threat to the rule of law in the region. A mainland legal academic well versed in Hong Kong's legal system echoed the concern, saying that, considering the experience of various former colonies around the world, there is a need in the long run to amend the Basic Law to limit foreign nationals from becoming judges.
Article 92 of the Basic Law says that judges and other members of the judiciary shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions. Article 82 provides that the power of final adjudication shall be vested in the Court of Final Appeal, which may, as required, invite judges from other common law jurisdictions to sit there.
These two articles not only provide the legal basis for appointing foreign judges; they also identify the rationale for allowing foreign nationals to be the city's judges, that Hong Kong practices common law and one of the prime features of the common law system is that judicial decisions are made with reference to precedents, both those laid down by local superior courts and those persuasive and authoritative decisions made by courts in other common law jurisdictions.
This is expressly stipulated in Article 84. One of the best features of our judiciary is that we have recruited top judges from other common law jurisdictions to sit in the Court of Final Appeal, presiding over some of the most controversial constitutional cases.
The common law system caters to such exchanges among different jurisdictions not because it is deliberately international, but because it adheres strictly to the rule of law principle that each case should be adjudicated through an objective reading of the law based on accepted principles of justice, applied to the particular facts of the case. Judges are not to be influenced by personal or political considerations, much less their own nationality.
The idea that the nationality of a judge may - or perhaps should - affect his or her judgment on a particular case is based on an anachronistic form of nationalism. More importantly, to suggest we should amend the Basic Law to restrict non-Chinese nationals from becoming judges is not only against the spirit of that law and its original intent, it is also damaging to the rule of law and "one country, two systems". The common law tradition in Hong Kong must live on, which means embracing the international aspects of all that it brings. China should welcome this.
Dennis Kwok is a member of the Legislative Council for the legal functional constituency