Politics

What is Hong Kong’s overseas judge appointment system and will it be kept?


Their departures left the city with seven overseas non-permanent judges serving on the apex court after the summer, down from a high of 15 in 2020.

Here the Post covers what you need to know about Hong Kong’s practice of appointing judges from overseas common law jurisdictions, a system that has been ditched by some former UK colonies, as well as the recent political row.

1. Why do foreign judges sit on Hong Kong’s top court, and how does it work?

Judges from other common law jurisdictions can be invited to sit on the Court of Final Appeal in Hong Kong as needed.

Final appeals are heard by the full court consisting of the chief justice, three permanent judges and another non-permanent judge, who will be either from Hong Kong or from another common law jurisdiction.

2. Do other places allow overseas judges?

Most countries do not allow foreign judges to sit on their highest court, according to Ronny Tong Ka-wah, a senior counsel and also a member of the government’s key decision-making Executive Council.

In Britain, judicial appointments are open only to citizens of the United Kingdom, the Republic of Ireland or a Commonwealth country.

But academic research showed that foreign judges were permitted to sit on the constitutional courts of some countries in Central America, Africa and the Pacific.

Jonathan Sumption (left) and Lawrence Collins have quit as non-permanent judges of Hong Kong’s Court of Final Appeal. Photos: HKCFA / UK Parliament / SCMP Composite

3. Why has the top court bench shrunk amid Hong Kong’s evolving political dynamics?

Beijing imposed the national security law on Hong Kong in 2020 after months of anti-government protests rocked the city the year before. The Beijing and Hong Kong authorities have credited the law for restoring social order and peace, but Western countries have said it has been used to crack down on dissidents.

Citing undisclosed reasons relating to the national security law, James Spigelman from Australia in September 2020 became the first foreign judge to resign from Hong Kong’s top court since the implementation of the legislation, two years before the end of his tenure.

In 2021, Brenda Hale, then president of the UK Supreme Court, asked the city’s judiciary not to renew her contract, citing logistical reasons. Despite denying any connection between the national security law and her decision to quit, Hale said the law had cast uncertainties on “protests and civil liberties and the like”. ‏

In March of the following year, Britain pulled Supreme Court president Robert Reed and vice-president Patrick Hodge from Hong Kong’s Court of Final Appeal. Reed said at the time he was “in agreement with the government that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration”.

Australian justice Anthony Gleeson, 85, said in March this year that he “did not wish” to renew his ­tenure as an overseas non-permanent judge on the apex court, owing to age. His term expired in February.

Last year, retired Australian justice Patrick Keane became the first overseas judge to be appointed to the Court of Final Appeal since the 2022 departures.

Judges from other common law jurisdictions can be invited to sit on the Court of Final Appeal in Hong Kong as needed. Photo: Jelly Tse

4. What about the latest resignations?

UK judge Sumption was among the latest to resign, with his remarks in an opinion piece and media interviews triggering a strong reaction from Beijing.

Sumption argued that judges in Hong Kong had to “operate in an impossible political environment created by China” and the rule of law was “profoundly compromised in any area about which the government feels strongly”.

He also described the conviction of 14 opposition figures in the city’s biggest and longest-running national security trial as “symptomatic of a growing malaise in the Hong Kong judiciary”, saying the ruling was “legally indefensible”.

Beijing’s national security arm and liaison office in Hong Kong issued separate statements in rebuttal, accusing Sumption of “slandering” the city’s rule of law and “blatantly violating” rules about not commenting on ongoing proceedings.

The Hong Kong and Macau Affairs Office also shared a strongly worded commentary on its WeChat account that accused Sumption of “dishonesty, untrustworthiness and lack of integrity”.

The piece also claimed he had willingly allowed himself to be “politically hijacked”, becoming a tool for politicians from the United Kingdom and other Western countries.

The Hong Kong government, on the other hand, called Sumption’s suggestions “baseless” and insisted that local courts were not “under any political pressure” from Beijing.

5. How many foreign non-permanent judges remain on the apex court, and will they stay?

Of the remaining eight overseas non-permanent judges, three are from Britain, four from Australia and one from Canada.

Four of them – British judge David Neuberger and three Australian judges, Robert French, Patrick Keane and James Allsop – told the Post they had no intention of quitting.

Keane told Australian media that he felt Hong Kong’s judiciary was still competent and independent.

Neuberger said he would stay to support his colleagues on the Court of Final Appeal and the rule of law in Hong Kong as best as he could.

6. How did authorities seek to allay rule of law worries after the resignations?

Chief Executive John Lee Ka-chiu, justice minister Paul Lam Ting-kwok and Chief Justice Andrew Cheung Kui-nung have backed the city’s judicial independence as they expressed regret at the departure of the two judges.

Lee, addressing Collins’ statement over the political situation, stressed the Beijing-imposed legislation was intended to plug the loophole of Hong Kong’s near-vacuum of national security laws after it was rocked by the 2019 protests.

Cheung also said he had “complete confidence” that the Court of Final Appeal would continue to fully perform its constitutional role and pledged that its operation “will not be affected by any change in membership of the court”.

Last year, retired Australian justice Patrick Keane became the first overseas judge to be appointed to the city’s Court of Final Appeal since the 2022 departures. Photo: Handout

7. Should the overseas recruitment system be kept amid geopolitical tensions?

The Basic Law does not state explicitly that there must be overseas judges sitting on the apex court. Article 82 only states that the power of final adjudication of Hong Kong shall be vested in the Court of Final Appeal, which, “may as required invite judges from other common law jurisdictions to sit on” it.

Exco member Tong said the use of overseas judges was more about improving perceptions and he believed it was possible to review whether the system should stay or not.

“The Court of Final Appeal has established its reputation in the international community. Do we still need to keep our reputation by the use of overseas judges?” he said.

But Basic Law Committee member Priscilla Leung Mei-fun said: “If there is a case that involves concepts of international law that Hong Kong judicial officers are not familiar with, inviting overseas judges could be helpful.”

Leung also said Hong Kong could appoint judges from Singapore or Malaysia as they also practised common law and better understood Asian values.

Chief Justice Cheung hinted the system would remain intact.

“Suitable candidates from overseas common law jurisdictions will continue to be appointed to the top court,” he said.



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