The Bar Association said yesterday the suggestion that only Chinese nationals should become judges in the top court goes against the provisions of the Sino-British Joint Declaration.
The suggestion, which has already been rebutted by Secretary for Justice Rimsky Yuen Kwok-keung, was raised recently by Professor Cheng Jie of Tsinghua University - a former researcher for the Basic Law Committee.
Cheng said at a forum in Hong Kong last Sunday that all Court of Final Appeal judges should be Chinese nationals, and all judges should have permanent Hong Kong residency. "It should not only be a court for the [city] but also a national court."
At the same forum, Alan Hoo SC, chairman of the Basic Law Institute, asked why most Court of Final Appeal judges were not Chinese citizens. Ten of 15 non-permanent judges of the Court of Final Appeal are from other common-law jurisdictions.
Cheng's interpretation was widely seen as a shake-up of the current judicial arrangements in Hong Kong, in which only two positions - chief justice of the Court of Final Appeal and chief judge of the High Court - are restricted to Chinese citizens who are Hong Kong permanent residents without right of abode in any foreign country.
"The Hong Kong Bar Association considers that [the] suggestion [regarding judges' nationalities] is inconsistent with … provisions of the Sino-British Joint Declaration 1984," it said in a statement, citing two paragraphs in Annex I, Section III of the pre-handover agreement.
One of the two provisions stated: "The Court of Final Appeal in [Hong Kong] … may as required invite judges from other common-law jurisdictions."
The Bar Association saw "no justification or need to change the basis upon which judges are and have been selected for appointment to the judiciary of [Hong Kong]". "[The judiciary] enjoys a well-earned reputation [which the Bar Association believes is] due in a substantial part to the current basis and arrangements … of selection for appointment of judges."
Hoo has denied raising the suggestion, saying he was only concerned about the need for "localisation" of local judges.
Yuen issued a statement on Tuesday rejecting the suggestion, saying it would "unduly restrict" the talent available for appointment. The Law Society, which represents Hong Kong solicitors, concurred with Yuen's views.