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Hong Kong courts

Foreign judges key to success of Hong Kong’s top court, chief justice says

Geoffrey Ma Tao-li’s remarks to public law experts come amid concerns voiced by pro-Beijing lawmakers in the city about two recent appointments

PUBLISHED : Tuesday, 26 June, 2018, 2:45pm
UPDATED : Tuesday, 26 June, 2018, 8:14pm

The presence of eminent overseas judges at the city’s top court is a key to the body’s success, Hong Kong’s chief justice has said amid pro-Beijing lawmakers’ concerns.

Geoffrey Ma Tao-li’s remarks came on the heels of the appointment of Brenda Hale and Beverley McLachlin, two non-permanent judges, to the Court of Final Appeal (CFA). Pro-Beijing lawmakers have questioned the judges’ liberal stance on equality issues and whether they would uphold Chinese national interests. Hale is from Britain, and McLachlin from Canada.

“Non-permanent judges are not in any sense foreign judges. When they sit in Hong Kong, they are Hong Kong judges,” Ma told hundreds of public law experts during a closed-door conference at the University of Hong Kong on Monday.

“They sit on Hong Kong’s highest court without any restrictions as to the type of cases they hear ... They have an equal say in the panel of five judges on the CFA. They take the same judicial oath as every other Hong Kong judge.”

Ma stressed overseas judges from top courts in Australia, Britain and other common law jurisdictions are “leading jurists of the present or indeed any generation” and helped add legal expertise to the city.

According to the Basic Law, the city’s mini-constitution, prominent overseas judges may sit on the Court of Final Appeal. This includes several former and current top judges from Australia, Britain and Canada.

A bench comprises four local judges and one overseas judge, who is usually in town for about one month per year.

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The city’s Legislative Council approved the appointments of Hale and McLachlin, effective in July. However, some pro-Beijing and conservative lawmakers have voiced concern that the two could take a judicial approach that conflicts with local or national interests.

Ma stressed the system of drawing upon non-permanent judges was a key feature of the Basic Law, arguing that, like the city’s common law system, it “had served Hong Kong well in the past and would carry on contributing” to the city’s success in the future.

The presence of these judges is a significant contributing factor to the confidence with which Hong Kong’s legal system in particular ... is held
Chief Justice Geoffrey Ma

“I am also told constantly by people in business and commerce that the presence of these judges is a significant contributing factor to the confidence with which Hong Kong’s legal system in particular and the rule of law in the city in general are held,” he added.

Hong Kong courts have in recent years heard high-profile, politically sensitive cases, including matters arising from the pro-democracy Occupy protests of 2014 and the Mong Kok riot of 2016. The top court has issued landmark judgments on civil disobedience and tightened sentencing guidelines for violent protests.

Without identifying specific cases, Ma said the reasoning the court used in its rulings on controversial cases with conflicting public interests would provide a critical “litmus test” for its constitutional role, highlighting the strength or even fragility of the rule of law.

Citing law professor Dieter Grimm of Yale Law School, Ma said: “The value of a constitution furthermore depends on the challenges with which it is confronted and on the answers which are gleaned from the constitution as a reaction to these challenges.”

Separately, Hong Kong’s last colonial governor, Chris Patten, rebutted criticisms by advisers to Chief Executive Carrie Lam Cheng Yuet-ngor and stressed he never attacked judges in the case of localist Edward Leung Tin-kei, who was jailed for six years for his role in the Mong Kok riot. Patten urged officials to “act and speak” their adherence to the city’s rule of law.

In an opinion piece in the Post, Patten stressed he was not criticising the jail terms in Leung’s case, but expressing opposition to the use of a rioting offence in the Public Order Ordinance, which was flagged as problematic by the United Nations Human Rights Committee in 2013.

Executive councillor Ronny Tong Ka-wah called out Patten for implying judges were manipulated as “political tools” in an earlier commentary published by the Post. Lam also responded to Patten’s comments by saying certain individuals were “harming” the judiciary with their criticism of jail terms.

Without naming names, Patten took a swipe at Tong, saying that “attacking people for what they have not said ... could be taken as a sign of both sharp rhetorical practice and of a very weak case”.

Patten added he would only take “lectures on the rule of law more seriously” if they came from those who spoke out over the abduction of people in Hong Kong by Beijing security officials.