The issue of foreign judges serving, or ceasing to, on our Court of Final Appeal has flared up, raising important questions about Hong Kong’s future. There has been a flurry of commentaries, some heated, not all of which have helped clarify matters.
To set the scene, let us start with the Basic Law. Article 8 provides that “laws previously in force in Hong Kong”, including “the common law”, “shall be maintained”. President Xi Jinping, visiting Hong Kong in 2022 for the 25th anniversary of the handover, reinforced the commitment in his July 1 speech. He twice mentioned the common law as continuing to apply in Hong Kong.
The question of foreigners serving in our judiciary is covered in two places in the Basic Law. Article 92 says that “judges and other members of the judiciary […] may be recruited from other common law jurisdictions”. Article 82 provides that Hong Kong “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 affirmed that “foreign friends” were welcome to remain part of Hong Kong’s legal system. Nong Rong, deputy head of the Hong Kong and Macau Affairs Office, in a speech delivered in English, told a conference that Hong Kong’s legal practitioners, including foreigners, supported the rule of law. Clearly, the central government fully supports Hong Kong’s common law system.
In summary, the rule of law, common law and foreign judges are all here to stay.
In the last few years, there have been a number of withdrawals from the list of foreign judges invited to sit on the Court of Final Appeal, by way of resignation or non-renewal of contract. These events have led some to query whether the arrangement is still in Hong Kong’s best interests.
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