Court Order

The issue of foreign judges serving, or ceasing to serve, on our Court of Final Appeal has flared up recently raising many important questions about Hong Kong’s future. There has been a flurry of commentaries, some quite heated, not all of which have helped to clarify matters.

To set the scene, let us start with the Basic Law. Article 8 provides inter alia “The laws previously in force in Hong Kong, that is, the common law ….shall be maintained….” . President Xi Jinping in his speech during a visit to Hong Kong on 1 July 2022 reinforced the commitment. He twice mentioned the common law system as continuing to apply and even said the Basic Law itself would continue beyond 2047.

The question of foreigners serving in our judiciary is covered in two separate places. Article 92 on general recruitment reads in part “Judges and other members of the judiciary … may be recruited from other common law jurisdictions.” While specifically on the top court itself, Article 82 reads in part “….which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.”

And earlier this month a senior mainland official repeated that “foreign friends” were welcome to remain part of Hong Kong’s legal system. Deputy head of the Hong Kong and Macau Affairs Office, Nong Rong, in a speech delivered entirely in English, told a conference in Beijing that Hong Kong’s legal practitioners, including foreigners, had supported the rule of law. The central government fully supported Hong Kong ‘s maintenance of its common law system.

In summary, rule of law, common law system, foreign judges, all here to stay.

In the last two years there have been a number of withdrawals from the list of foreign judges invited to sit on the CFA, by way of resignation or non-renewal of contract. These events have led some to query whether the present arrangement is still in Hong Kong’s best interests. One commentary in this newspaper from a former Hongkonger now resident overseas is that the time for the arrangement has passed because in future the legal system here will gradually become more like that of the mainland. I must respectfully disagree: in my view such a sentiment plays in to the hands of Hong Kong’s detractors who look for every opportunity to say we are becoming “just another city in China”. The rule of law and the common law system are precisely what distinguishes us, and makes us more useful to the country. More reasonably, Exco Member Ronny Tong Ka-wah has asked whether we have not now built up a sufficiently large and respected body of common law practitioners that we can dispense with outsiders. It is a legitimate question and in theory the answer must be yes. But that is to ignore the optics of the situation, the perception in the minds of the international business community.

Twenty years ago when InvestHK was just starting out we talked about the whole set of advantages of doing business here, but what often clinched the argument was the presence of foreign judges including on the CFA. The annual surveys of foreign and mainland businesses in Hong Kong seeking views on the city’s attractiveness invariably rank rule of law, independent judiciary and the common law system as the key factors. Why would we voluntarily give up what makes us the best?

The issue has become heavily politicised, particularly since the “Five Eyes” nations led by the United States have chosen to cast China as a geopolitical rival. Following enactment of the National Security Law in 2020 there were calls in the UK for British judges to withdraw. In 2022, two serving British Supreme Court judges (Robert Reed and Patrick Hodge) did so in a high-profile way. It is widely believed that they did so on British government direction, though this has been denied. Earlier this month two more British judges stood down, one (Lawrence Collins) while expressing continued confidence in the judiciary here while the other (Jonathan Sumption) gave his reasons in a commentary in the Financial Times saying rule of law here was in grave danger. Meanwhile former Canadian chief justice Beverley McLachlin, aged 80, gave notice she would not be renewing her term when it expired in a few weeks time.

The Western media have used the issue of foreign judges withdrawing from the CFA as evidence of Hong Kong’s decline, supporting the false narrative that Hong Kong is over.

Nonetheless it would be wrong to claim there has been no change of mood or atmosphere in Hong Kong in recent years. Some public statements have taken on wolf warrior tones and come across as more thuggish than statesmanlike.

Perhaps the most egregious example of undesirable administrative behaviour is the abuse of the police bail system under which many thousands of young people not yet charged with, let alone convicted of, any offence have been kept in limbo in some cases for many years. A mature confident government would not behave like this, or pretend that it did not know the scale of the situation.

Specifically on the matter of the CFA judges, what are we doing to keep the ones we have and replenish the supply of willing foreigners? The “Five Eyes” governments seem determined to browbeat their own citizens into withdrawing, but are there any countermeasures we can introduce to bolster the morale of those who remain and inspire any new ones to come and see for themselves? And are there no alternative jurisdictions we could draw on? Both Ireland and India practice common law and both countries are familiar with and have a history of resisting British bullying. If the presence of foreign judges in our courts is one of the distinguishing features that makes Hong Kong different and special, then we should be doing everything we can to preserve that difference.