The selection of judges to hear court cases rarely stirs much interest beyond legal circles. But the composition of the bench for tomorrow’s eagerly awaited hearing in Hong Kong’s top court is different. This will be the first time the Court of Final Appeal considers the controversial National Security Law. The defendant, seeking bail while awaiting trial for fraud and colluding with foreign forces, is media tycoon Jimmy Lai Chee-ying. The choice of judges for the top court’s cases is usually easy to predict. The chief justice sits with three permanent judges of the final court and one part-time judge. The part-timer can be local or from overseas. But a judge flown in from abroad has featured in almost all cases heard by the court. This time, it is different. Chief Justice Andrew Cheung Kui-nung will be joined by only two permanent judges, Roberto Ribeiro and Joseph Fok. There is a vacancy for the third, created by Cheung’s elevation to top judge this month. It has been known for more than a year the vacancy would arise. It is surprising it was not filled immediately. No foreign judges will hear first national security case before Hong Kong’s top court With only two permanent judges in place, a local part-time judge fills the gap on the bench. That still leaves the fifth spot, usually taken by a big-hitter from overseas. But for Lai’s case, another local judge has been selected instead. The issue is not whether these judges can be relied on to do justice. They can. The two local part-timers are Patrick Chan Siu-oi and Frank Stock. Chan was a permanent judge on the top court until 2013. Stock, born in Rhodesia and trained in England, came to the city in 1978. He served as a government lawyer, including as solicitor-general, before joining the judiciary in 1991. They will, no doubt, apply the law freely, fairly and independently. But questions remain about the absence of an overseas judge. The foreign judges are an important feature of Hong Kong’s legal system. They are distinguished figures, bringing a wealth of expertise and experience. There are 14 of them, from Britain, Australia and Canada. Only judges designated by Chief Executive Carrie Lam Cheng Yuet-ngor are allowed to hear national security cases and some have argued she should not select judges from overseas. Zhang Yong, vice-chairman of the Legislative Affairs Commission of the National People’s Congress, suggested Lam should not designate judges with foreign passports because of their “dual allegiance”. Lam said this was unrealistic. The government has not, however, revealed whether any overseas judge has been approved. Little is known about who Lam has designated or how she decides. There is a worrying lack of transparency. The list of all judges cleared for security cases should be made public along with the criteria for choosing them. Last year, then-chief justice Geoffrey Ma Tao-li said overseas judges would be included and Lam’s choice made in consultation with the chief justice. This position should be confirmed. Chief justice takes office amid political turmoil, pressure from Beijing Lam’s power to designate security judges has the potential to undermine judicial independence. Ma, among others, sought to offer reassurance by stressing the judiciary still decides which judges sit on which cases. But the field is narrowed for the top court’s cases if part-time overseas judges are not on Lam’s list. There are only four local non-permanent judges. Two have been selected for Lai’s case. Questions are bound to be asked about the status of the other two. Both are former permanent judges of the final court. One, Mr Justice Kemal Bokhary, has been described as the most liberal judge in the city. Have they been cleared for security cases? If the pool of available judges is too small, the judiciary is left with little choice. It might even have no choice at all. Tomorrow’s case will be closely watched. Whatever the decision, it is to be hoped it will not prompt further ill-considered attacks on the judiciary. But the credibility of the court and its decisions would be boosted if the process for selecting security judges was more transparent. Overseas judges should be included – their only allegiance is to the law.