Former Chief Justice Andrew Li Kwok-nang has defended the need for overseas judges in the Court of Final Appeal (CFA) in an op-ed penned for Ming Pao. It goes against mainland Chinese legal scholars who have suggested otherwise.
In addition to four main Hong Kong judges, Li wrote that it was a CFA tradition to also have veteran overseas judges from New Zealand, Australia or Britain which, he said, should be a permanent arrangement. The CFA can also have a fifth local judge, but this position has been held by an overseas judge since 1997.
“A mainland scholar recently said all judges of the CFA should be Chinese nationals who have right of abode in Hong Kong, while another scholar has commented that overseas judges should be seen as a transitional arrangement during the 50 years [of ‘one country, two systems’],” Li wrote.
“Although I understand these arguments, I can hardly agree,” he added.
Li said that “the arrangement of overseas judges sitting in the CFA should not be seen as a violation to China’s sovereignty and Hong Kong’s autonomy.”
He said that overseas judges also have to take the same judicial oath to “uphold the Basic Law and bear allegiance to the HKSAR of the People’s Republic of China.”
“An overseas judge enjoys the same status as other judges, he will not receive special treatments. The five judges make judgement independently,” he wrote.
“Appointing overseas judges is in the best interest of Hong Kong as a part of China under ‘one country, two systems’.”
He concluded by saying that through the assistance of overseas judges, the court’s horizons have expanded, particularly in regards to Comparative law. As a result of this international insight, the court has benefited from better judgement and earned the trust of Hong Kong people, strengthening their confidence in judicial independence.
In April, top mainland law scholar Rao Geping commented that overseas judges did not understand the Basic Law, and that after the 50 year period of ‘one country, two systems’ set by the mini constitution, they should consider changing the arrangement.
Andrew Li was the Chief Justice of the CFA from 1997 to 2010.