Don’t undermine Hong Kong’s rule of law by politicising presence of foreign judges, ex-justice minister Elsie Leung cautions Western countries

Chris Lau
·5-min read

Former justice minister Elsie Leung Oi-sie has cautioned Western governments against undermining Hong Kong’s rule of law by politicising the presence of foreign judges in the city and pressuring them to quit.

The city’s first secretary for justice advised judges from other common law jurisdictions working in Hong Kong to stay above the fray, pointing out that they were free to express disagreements with any government stance through dissenting rulings.

“This is against the rule of law,” she said, in response to calls for Western judges to resign from the city’s courts as a protest against the national security law Beijing imposed on Hong Kong last year.

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In a wide-ranging interview with the Post on Thursday, the veteran pro-Beijing stalwart also defended the drastic overhaul of Hong Kong’s electoral system approved last week by China’s top legislative body.

She argued that Beijing remained committed to the city’s democratic development despite the controversial shake-up of its entire political structure to ensure that only those deemed to be “patriots” would get to be elected to office or govern Hong Kong in any way.

Leung, who has had a hand in all three previous electoral-reform drives since the former British colony returned to Chinese rule in 1997, said Beijing had never shut the door to greater democracy.

Little hope of Hong Kong political change over next decade: pro-Beijing heavyweights

She cited the breakthrough in 2010, when a compromise with opposition parties enabled the addition of five so-called super seats to the legislature which would be directly elected by voters across the city.

“[Beijing officials] could have said let’s remain at the same spot. But as you could see, they didn’t do that,” Leung recalled.

The promise that Hongkongers would eventually get to elect their chief executive and all Legislative Council members remained enshrined in the city’s mini-constitution, the Basic Law, she added.

Critics say the city has moved backwards after the National People’s Congress Standing Committee voted last week to scrap the five extra seats introduced in 2010, along with another 10. That leaves only 20 directly elected seats in the new 90-seat Legco, with 40 created to be filled by a freshly empowered Election Committee that will be dominated by pro-establishment forces.

Leung rejected concerns that opposition candidates were being shut out, insisting they would be welcome to participate.

With the power to nominate candidates now, the Election Committee should judge opposition figures based on whether they would threaten the interests of Hong Kong and Beijing, rather than their dissenting political views, she said.

“We are only preventing those who will harm the interests of the country and Hong Kong from running for election,” she said.

The electoral overhaul has triggered strong criticism from Western governments already attacking Hong Kong and Beijing authorities for the national security law, under which dozens of opposition politicians and activists have been arrested following the protest chaos of 2019.

The Court of Final Appeal in Central. Photo: Sam Tsang
The Court of Final Appeal in Central. Photo: Sam Tsang

Politicians in Britain have urged British judges to stop working in Hong Kong, where it has long been a tradition to recruit overseas judges from other common law jurisdictions to serve in the city’s Court of Final Appeal.

Leung, a solicitor by trade, said the spirit of the arrangement was not only to maintain the city’s inherited common law system, but also for the judiciary to benefit from outside expertise.

“Every justice gets to write a judgment,” she said. “If all other justices get it wrong and [the foreign justice] is the only one who gets it right, the whole world will be able to see his correct decision and finds others unjust.”

Leung also lamented that senior British barrister David Perry QC was pressured against coming to Hong Kong to represent the Department of Justice in prosecuting anti-government activists after he was criticised by Foreign Secretary Dominic Raab, who branded him a “mercenary”.

“If you criticise a barrister for coming to Hong Kong to serve, is that the rule of law? That’s not my understanding,” Leung said. “Even if you are representing the prosecution, when you present the law and argument comprehensively and fairly, you are actually helping to establish the rule of law.”

David Perry QC pulled out of a case in Hong Kong. Photo: Dickson Lee
David Perry QC pulled out of a case in Hong Kong. Photo: Dickson Lee

Leung insisted that the independence of the judiciary remained uncompromised, regardless of the changes in Hong Kong.

“Why are there still so many [judicial reviews] against our government? If our judges are not impartial, there wouldn’t be so many judicial reviews,” she said.

While securing bail has become difficult for suspects charged under the national security law, Leung argued that their rights were not absolute and judges were bound to abide by the new legislation.

Electoral changes about driving Hong Kong back to straight and narrow

She said the national security law and electoral overhaul were in response to the extraordinary turmoil of 2019, and she did not expect there would be a trend of more drastic measures initiated by Beijing.

But asked when Beijing might decide that the city was back on the right track and loosen its grip on the political system, Leung said it would not happen for another five to 10 years.

“If it could be done within the tenure of one administration, then such a drastic reform would not have been required in the first place,” she said.

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