Foreign judges play crucial role in Hong Kong’s rule of law

Legal bigwigs, including the first post-handover chief justice, have lauded their contributions to the city, yet now there are some who want expats off the benches

PUBLISHED : Tuesday, 06 June, 2017, 11:26pm
UPDATED : Tuesday, 06 June, 2017, 11:26pm

Former chief justice Andrew Li Kwok-nang is well qualified to comment on foreign judges. As the first head of the judiciary after Hong Kong’s return to Chinese sovereignty in 1997, he sat alongside eminent foreign judges in the Court of Final Appeal until his retirement in 2010. When he became chief justice, half of the city’s judges came from overseas. Li has long valued the role played by foreign judges and lawyers in Hong Kong. In 1998, he welcomed competition from barristers from overseas, saying such cross-fertilisation would raise standards and help build a strong reputation for the top court. In a recent interview with the Post, he stressed the merits of expatriate judges and argued they should constitute 5-10 per cent of those on the bench.

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The role of foreign judges has been questioned recently, following a British judge’s jailing of seven police officers who assaulted an activist during the 2014 Occupy pro-democracy protests. Supporters of the police argued foreign judges favour the pro-democracy camp. In March, some Hong Kong delegates to the National People’s Congress called for judges from overseas to be banned from hearing constitutional cases. Such views are misconceived. Judges decide cases according to the law. Their nationality or race has no bearing on their judgments. The experience and expertise of foreign judges is invaluable. Their presence helps maintain public confidence in the city’s independent judiciary and rule of law.

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The Basic Law, Hong Kong’s de facto mini-constitution, provides for foreign judges to sit on the Court of Final Appeal and for judges at all levels to be recruited from other common law jurisdictions. But their role is not just a reflection of constitutional provisions, it is symbolic of the “one country, two systems” concept. All judges, whatever their nationality, swear to uphold the Basic Law and we trust them to have a good understanding of it. As Li pointed out, foreign judges contribute in two ways. Of the five judges hearing an appeal in the top court, one is usually from overseas. These judges are internationally renowned. They have played a significant role in establishing that court’s reputation and developing its jurisprudence. Their presence strengthens confidence in the court’s independence. Secretary for Justice Rimsky Yuen Kwok-keung recently declared the use of foreign judges in the top court a success, rightly describing it as an innovative formula. At lower levels, there are foreign judges who have been working in Hong Kong for many years. They are needed to maintain high standards at a time when the judiciary is struggling to find suitably qualified new recruits. But their numbers are dwindling as they retire. That is a concern. Rather than seeking to remove or restrict foreign judges, the judiciary should be actively recruiting them to ensure their important role in upholding the rule of law continues.