Beijing knows judicial independence is the last protection for Hong Kong’s future

Pro-Beijing critics of foreign judges on Hong Kong’s top court are misguided
Beijing is keen on preserving Hong Kong’s status as a financial hub and getting rid of the foreign judges would be detrimental to the city’s interests

Albert Cheng

Published: 6:45am, 19 Mar 2021

Why you can trust SCMP

Beijing has announced a plan to overhaul Hong Kong’s electoral system, which goes against Articles 45 and 68 of the Basic Law. These articles state that the methods for selecting the chief executive and for forming the Legislative Council “shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress”. In both cases, “the ultimate aim is … universal suffrage”.

However, Beijing’s reforms will take Hong Kong’s electoral system further away from universal suffrage.

The promises of “one country, two systems”, “high degree of autonomy” and “Hong Kong people ruling Hong Kong” are in pieces. Yet Beijing is reluctant to outright declare “one country, one system” in Hong Kong; it is determined to preserve Hong Kong’s status as an international financial centre.

Top officials say they will only tighten control over matters related to national security, but will continue to adopt common law and maintain judicial independence in all other aspects. Believe that if you will.

As usual, Beijing’s latest move has been condemned internationally. More sanctions have been announced, and more can be expected. However, one should be mindful not to give up on Hong Kong’s judicial system. This is for the best of Hongkongers and foreigners who live and work here, as well as all the multinational companies.

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Recently, Lord Reed, president of the Supreme Court of the United Kingdom and one of 10 British non-permanent judges on the Hong Kong Court of Final Appeal, said he has been monitoring the latest developments and is in close contact with the foreign secretary to review the participation of British judges in Hong Kong’s top court.

In fact, after the enactment of the national security law last year, Reed said in a statement that the new law “contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice.” He added: “Whether judges of the Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law.”

Hong Kong will remain a great financial centre – only the colour of the money will be different

Following Reed’s most recent comments, some pro-Beijing sycophants immediately pointed fingers at all 14 overseas non-permanent judges, claiming they should not be allowed to pose a threat to China’s national security, urging them to leave Hong Kong as soon as possible. Among the 14 judges, apart from the 10 from Britain, three are from Australia and one is from Canada.

Such critics are betraying their ignorance. The appointment of overseas non-permanent judges to sit on the Court of Final Appeal is clearly stated in Article 82 of the Basic Law. The national security law, established under Annex III, does not change any of the original articles of the mini constitution. Overseas non-permanent judges are legitimate.

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Getting rid of overseas non-permanent judges would not suit the Communist Party’s agenda as it would be detrimental to Hong Kong’s interests. In this case, these knee-jerk critics of foreign judges are not so different from the laam chau, or “mutual destruction”, localists they love to hate.

Yes, “one country, two systems” is in serious jeopardy. But before doomsday comes, Hong Kong’s judicial independence and common law remain the last protection for Hong Kong people. The 14 overseas non-permanent judges are guarding the last haven of the city. Their departure will do Hong Kong no good.

Lastly, it is true that the national security law hangs over some people like a sword of Damocles – people who may fall foul of the law by saying or writing something. However, it is also disappointing to see some so-called influencers who, having left Hong Kong, publish unverified and false content on social media platforms that misleads Hong Kong people.

Hong Kong is changing; that is inevitable in the current political environment. I have been writing political commentary for the Post for more than 20 years. Now, sadly, the time has come to say farewell, although I do plan to write from time to time. Stay safe and healthy, until we meet again.

Albert Cheng King-hon is a political commentator