If what the UK Government means is moral legitimacy, then are they saying that, despite the Joint Declaration guaranteeing judicial independence in Hong Kong, the UK has a moral obligation to act contrary to the Declaration and interfere with the exercise of judicial power by the Court of Final Appeal?
Leaving aside this rather odd philological question, would forcing British judges to resign from the court have any impact on the independence of the Hong Kong judiciary? Most would agree that it is absurd to claim that Hong Kong’s judicial independence depends on having one or two British judges.
01:18
Hong Kong leader and chief justice express regret over British judge’s resignation from Supreme Court
Hong Kong leader and chief justice express regret over British judge’s resignation from Supreme Court
It is important to understand that the impact of whether or not British judges sit on the Hong Kong Court of Final Appeal is not as great as the impression it creates. Both the Joint Declaration and the Basic Law of Hong Kong provide that the Hong Kong Court of Final Appeal “may invite judges from other common law jurisdictions as necessary.” The Hong Kong government has adhered to that requirement.
It is the British government that is acting against this understanding. In any case, even if British judges are not on the final courts of appeal in our country, our Supreme Court will refer to common law precedents, including British precedents, when necessary, so the legal wisdom of British judges will not be lost in the development of our case law.
03:17
Hong Kong and Beijing condemn UK withdrawal of judges from Hong Kong’s highest court over security law concerns
Hong Kong and Beijing condemn UK withdrawal of judges from Hong Kong’s highest court over security law concerns
Ultimately, one is forced to come to the logical conclusion that the presence of foreign judges in our Courts of Final Appeal is for the sake of impression or appearance rather than to bring about any real difference in the performance of judicial functions.
I must acknowledge that when China restored sovereignty over Hong Kong, it may have been important to maintain the perception of business as usual when establishing a new Court of Appeal. But 27 years on, our Court of Appeal has firmly established itself as a rational tribunal worthy of international respect. Its judgments are not only highly regarded, but I have heard them frequently cited by other common law jurisdictions.
So do we still need British judges to enhance our country’s reputation? Some would argue not. Very few places on earth allow foreign judges to sit on appellate courts, so should we continue this tradition, for lack of a better word, forever?
Don’t get me wrong, I am not arguing for banning foreign judges from sitting on our Court of Final Appeal. That would require amendments to the Basic Law, which the UK side might argue violates the Joint Declaration. The question is, is it worth making such a fuss about? Especially since all this is just a political ploy, and the judges are unwillingly joining in the efforts to discredit one country and two institutions in a war of recognition.
Ronnie Tong (KC, SC, JP) is a former President of the Hong Kong Bar Association, a member of the Hong Kong Executive Council and Chairman of the Democracy Road.
