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Hong Kong courts

Politics must be kept out of the appointment of senior judges

Some legislators have spoken out against the appointment of two foreign judges to the Court of Final Appeal because of a belief that they support same-sex rights. But judicial candidates should be judged purely on their ability, experience and character and not on their perceived political views

PUBLISHED : Sunday, 06 May, 2018, 5:45am
UPDATED : Sunday, 06 May, 2018, 5:46am

The appointment of senior judges is a serious matter which requires a fair and objective system based purely on merit. It is extremely important to keep politics out of that process.

This is one of the ways in which Hong Kong’s highly valued judicial independence is maintained. Suggestions that pro-establishment lawmakers might seek to block the appointment of two esteemed foreign judges recruited for the city’s Court of Final Appeal (CFA) have, therefore, raised concerns. Thankfully, it seems, the legislators do not intend to go that far.

Some of them spoke out against the appointments because they believe the two judges support same-sex rights. This appears to be based on rulings they delivered in their home countries.

Baroness Brenda Hale has ruled in high-profile discrimination cases in Britain and Beverley McLachlin has done so in Canada.

But that does not mean they are unfit to sit as part-time judges in Hong Kong’s top court. There should be no politicising of the judicial appointment process.

Judges rule on the law. When they sit in Hong Kong, they apply Hong Kong law.

Candidates for judicial appointment should be judged purely on their ability, experience and character. All that matters is whether they are good judges and their perceived political beliefs are irrelevant.

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The appointment process put in place by the city’s de facto constitution, the Basic Law, seeks to ensure appointments are made on merit. The chief executive appoints judges on the recommendation of an independent commission, which is chaired by the chief justice.

Approval from the Legislative Council is needed for the appointment of CFA judges. This part of the process should not be seen merely as a rubber stamp.

Lawmakers have a right to consider the qualifications and experience of the candidates to ensure they are suitable.

But this should not extend to a US-style examination of their political views or the way in which they might decide this or that case. Such an approach is alien to Hong Kong’s legal system. It would undermine judicial independence and bring the judicial appointment process into the political arena.

Lawmakers have a right to raise their constituents’ concerns. But there is no good reason why Hale and McLachlin should not be appointed. Both are very experienced and highly respected around the world. They are the first female judges to be appointed to the CFA, which is welcome.

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But the real value of appointing them lies in the expertise they will bring. Senior common law judges exert influence through their judgments no matter where in the world they sit.

The Court of Final Appeal has already followed Hale’s reasoning in two cases on gay rights. The judiciary is facing a shortage of manpower. Hong Kong needs to be able to attract the best judges.

Political considerations must be kept out of the appointment process.