Not necessary to review proportion of overseas judges in Hong Kong, says Elsie Leung
City’s former justice minister points to Basic Law, which empowers highest court to enlist help of top judges from other common law jurisdictions
Former justice minister Elsie Leung Oi-sie has dismissed any need for a review of the proportion of judges from overseas in Hong Kong after a leading mainland legal expert complained that local adjudicators were a minority in the city’s top court.
The judiciary, having already clarified that local judges form the majority in the Court of Final Appeal, stressed yesterday that judges should be chosen on the basis of their judicial expertise. It said there was no nationality requirement for any of them except the heads of the Court of Final Appeal and the High Court.
Wading in the debate over the role of judges with foreign nationality in Hong Kong courts, Leung cited the city’s mini-constitution that empowers the highest court to enlist the help of top judges from other common law jurisdictions in deciding cases.
“The Basic Law provides that we may invite distinguished judges of the other jurisdictions to come to sit in Hong Kong as non-permanent judges, so I don’t think there is a need for change at this stage,” the Basic Law Committee vice-chair said in Beijing yesterday.
“It is to the advantage of Hong Kong that we should have judges from other jurisdictions as well.”
She also took note of the increasing number of Chinese judges sitting on the benches.
“When the Basic Law was approved, the majority of judges were foreigners, but now the proportion has increased significantly already,” she said. “There are many more Chinese judges, and I believe they will increase naturally, both in terms of the amount and importance.”
She was speaking after mainland commentators questioned the jailing of seven policemen for assaulting an Occupy protester in 2014, by District Court judge David Dufton last month. Some had suggested that “foreign judges” seemed more inclined to “favour the pro-democracy camp”.
Basic Law Committee member Rao Geping, also a law professor at Peking University, did not comment directly on the policemen’s case, but noted the absence of rules on the ratio between foreign and local judges.
“Because no rule on the ratio has been set, it is difficult to say if it is against the law. But is this reasonable?” Rao said on Sunday. “Hong Kong is not short of local talent, so should the ratio be adjusted?”
Rao said there were “17 to 18” judges with foreign nationalities in the top court, but the judiciary refuted his figures.
It also countered that under Article 90 of the Basic Law, only the chief justice of the Court of Final Appeal and the chief judge of the High Court are required to be Chinese citizens who are permanent residents of Hong Kong.
When hearing and determining appeals, it said, the Court of Final Appeal would comprise four regular judges and one either from Hong Kong or other common law jurisdictions being selected each time by the chief justice from a pool of 13 – three of them local and 10 from overseas.
“In hearing any substantive appeal, there will be at most one non-permanent judge from other common law jurisdictions sitting among the court of five in the Court of Final Appeal,” the judiciary said.
It could not provide statistics on the nationalities of the city’s 157 full-time judges and judicial officers.
Retired judge Woo Kwok-hing, a chief executive election candidate, did not see a problem with the existing ratio of local to foreign judges.