Foreign judges must be retained in Hong Kong, former chief justice insists

The proportion of foreign judges has declined from half in 1997 to just 6 per cent but they should remain a feature of the judiciary in Hong Kong, says former chief justice Andrew Li Kwok-nang.

In an interview with the Post, Li said he hoped they would continue to make up 5 to 10 per cent of the total number of judges.

Commenting on recent accusations that foreign judges were biased in favour of the pan-democratic camp, Li called for the issue to be discussed rationally.

He explained that foreign judges fell into two categories, each contributing in different ways to the administration of justice, and both should have a place at the bench.

The first comprises non-permanent overseas judges in the Court of Final Appeal, drawn from a panel of eminent judges from Australia, New Zealand and Britain. The Basic Law provides for their appointment, and Li has played a decisive role in inviting top judges including chief justices to adjudicate in constitutional cases.

Li pointed out that they swore the same judicial oath as any Hong Kong judge. They swear to uphold the Basic Law and bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic. Furthermore, only one out of five judges in a Court of Final Appeal hearing can be from overseas.

“I believe it is in the best interests of Hong Kong under ‘one country, two systems’ to maintain this arrangement. First, it enables the court to benefit from comparative perspectives and experience.

“Second, this arrangement commands confidence in and outside Hong Kong, particularly our own citizens. Thirdly, this arrangement is conducive to enhancing confidence in the independence of our judiciary,” Li said.

The second category is made up of foreign monolingual judges. Li said they were all expatriate judges who had practised in Hong Kong for a long time, rather than being total strangers to the city.

As of May, out of the 159 judges in Hong Kong, 89 per cent were bilingual, 5 per cent partly bilingual in that they can understand Cantonese but not read or write it, and 6 per cent are monolingual.

While Li recognised the need for a majority of judges on the bench to be bilingual to cope with operational needs, he said it was meritorious to keep expatriate judges.

“I believe it is appropriate for Hong Kong, being an international financial centre, to continue to have monolingual foreign or expatriate judges – say 5 to 10 per cent.”

Li’s comments come amid a continuing debate over foreign judges sparked by a decision by District Court judge David Dufton to jail seven local policemen for assaulting a protester during the Occupy demonstrations in 2014. Police sympathisers claimed foreign judges were predisposed to favour the pan-democratic camp.

Questions about judges’ impartiality also surfaced during the annual parliamentary session in Beijing in March. Some Hong Kong delegates called for foreign judges to be banned from handling constitutional cases.

Commenting on such remarks, Li said: “These attacks were launched because the verdict was not to their political liking. They are not justified and are unacceptable.”

On the nationality of judges, he noted that Article 19 of the Basic Law only required the chief justice and the chief judge of the High Court to be Chinese nationals with no right of abode elsewhere, but whether this requirement should be extended after 2047 “can be discussed at an appropriate time”, he said.

To foster better understanding of the mainland among Hong Kong judges, he noted that during his tenure as chief justice, he had arranged courses for bilingual and monolingual judges at Tsinghua University in Beijing.

The aim was to enhance Chinese language skills in writing judgments and understand the mainland system. Judges also had a chance to interact with mainland representatives. More than seven out of 10 judges had taken the course by the time Li stepped down in 2010. The programme was later halted.

“All of us in Hong Kong must enhance understanding of the mainland in order to make ‘one country, two systems’ work much better,” he said.