Foreign judges departing top court ‘most regrettable,’ ex-chief judge says as gov’t advisor questions need for overseas justices
Hong Kong Free Press
The departure of three foreign judges from Hong Kong’s top court is “most regrettable,” former chief justice Andrew Li has said, adding that non-permanent overseas justices make “a valuable contribution to Hong Kong.”
The remarks came as two non-permanent overseas judges, Lord Jonathan Sumption and Lord Lawrence Collins, both from the UK, announced last Friday that they would quit the Court of Final Appeal. Another non-permanent overseas judge Beverley McLachlin, who is from Canada, also announced on Monday that she would step down after her term expires in July.
Days after announcing his decision to leave, Sumption wrote in a Financial Times opinion piece published on Monday that Hong Kong was “slowly becoming a totalitarian state.”
“The rule of law is profoundly compromised in any area about which the government feels strongly,” the judge wrote.
In a statement sent to Ming Pao on Tuesday, the former chief justice Li acknowledged the role that foreign judges play, while writing that Hong Kong should “move forward with commitment instead of dwelling on the past.”
“We should have every confidence that the courts under the leadership of Chief Justice Andrew Cheung will continue to be able to discharge their duties effectively, ” Li said.
Meanwhile, Ronny Tong, a government advisor and a barrister, said in an op-ed in SCMP on Tuesday that it was debatable whether Hong Kong still needs foreign judges.
“At the end of the day, one is forced to arrive at the logical conclusion that foreign judges sitting on our Court of Final Appeal is more for perception, or for show, if you like, rather than actually making a difference in the exercise of the judicial function, ” Tong said.
He continued: “So do we still need British judges to shore up our reputation? Some would argue not. Few other places on Earth allow foreign judges to sit on their final appeal court, so should we continue this tradition, for want of a better word, forever?”
Why Hong Kong has foreign judges?
According to the Basic Law, Hong Kong allowed justices with foreign passports to act as judges in the city after its handover to China in 1997, with the exception of the Court of Final Appeal’s chief justice and the High Court’s chief judge.
Lin Feng, a law professor at the City University, wrote in 2016 that the Chinese and UK governments reached an agreement in the 1980s to allow the judiciary to hire legal professionals from other common law jurisdictions.
Prior to the departure of Sumption, Collins and McLachlin, there were 10 non-permanent overseas judges in Hong Kong who were retired justices from the United Kingdom, Australia and Canada.
In the Court of Final Appeal, every case is heard by a panel of five judges, including the chief justice, three permanent judges and one non-permanent judge from Hong Kong or overseas.
Following the enactment of the Beijing-imposed national security law, UK judges sitting as part-time judges in Hong Kong’s top court has faced pressure from British politicians.
In early 2021, Lord Robert Reed, who is president of the UK’s Supreme Court and was at the time a non-permanent judge in Hong Kong’s top court, said he was “closely monitoring and assessing developments in Hong Kong.”
In early 2022, Reed and another part-time British judge Lord Patrick Hodge resigned, citing the national security law and an erosion of political freedom.
In 2021, the then-president of the Law Society of Hong Kong said non-permanent judges’ acceptance of their appointments sent “a clear message of their confidence in Hong Kong’s judicial system in upholding the rule of law and judicial independence.”
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