Hong Kong should appoint judges to its top court from common law jurisdictions such as Singapore and Malaysia to reduce the reliance on Western jurists who face pressure in their home countries to leave or avoid the city, lawmakers have said.
Legislators suggested the recruitment reforms on Monday as they endorsed the promotion of veteran judge Johnson Lam Man-hon to become a permanent member of the Court of Final Appeal, the final stage of the process before his formal appointment.
Members of the Legislative Council subcommittee during the debate urged the government to consider shifting the focus away from appointing jurists based in countries such as Britain and Australia who might quit over issues such as the national security law.
Do you have questions about the biggest topics and trends from around the world? Get the answers with SCMP Knowledge, our new platform of curated content with explainers, FAQs, analyses and infographics brought to you by our award-winning team.
Pro-establishment lawmaker Junius Ho Kwan-yiu, a former Law Society president, said Hong Kong authorities should look at appointing more judges to the Court of Final Appeal.
He also took issue with all overseas non-permanent judges coming from Britain, Australia and Canada.
“Even with Lam [and the chief justice], we will only have four permanent judges at the top court,” Ho said. “So my question is why we cannot have five or six permanent judges?”
Ho noted that under the Hong Kong Court of Final Appeal Ordinance, cases at the top court must be heard by a five-member panel comprising the chief justice, three permanent judges and one non-permanent judge. He suggested that provision could be amended.
Currently, there are 17 non-permanent judges serving the city’s highest court. Four of them are local and 13 are from overseas.
The lawmaker said jurists from other common law jurisdictions should be considered for the role given that Britain, Australia and Canada had been critical of Beijing through their membership of “Five Eyes”, an intelligence alliance also including the United States and New Zealand.
“We have been picking [judges from] Five Eyes. But to manage risk, we need to think of the potential dangers,” Ho said.
The potential pitfalls of Hong Kong’s existing policy of appointing foreign judges were visible when Baroness Brenda Hale, president of the British Supreme Court from 2017 to 2020, indicated she would stand down as a non-permanent judge of the city’s top court, Ho added.
Hale said last week she would turn down an expected offer of a second stint when her first term expired next month, saying the “jury is still out” on the Beijing-decreed national security law, which was imposed on Hong Kong in June last year to ban acts of subversion, secession, terrorism and collusion with foreign forces.
The lawmaker noted that even before Hale’s revelation, Australian judge James Spigelman resigned from the city’s top court last September citing unspecified reasons related to the security law, while British Supreme Court president Robert Reed said in March he would consider quitting should he conclude the city’s judicial independence had been compromised.
However, another British judge, Lord Jonathan Sumption, defended the city’s judicial independence and made clear he intended to continue serving the Court of Final Appeal.
Lawmaker Priscilla Leung Mei-fun agreed that more non-permanent judges could be appointed and backed looking to other parts of Asia for recruits.
“We need to include more candidates, such as those from Singapore and Malaysia,” she said.
“Now the international situation has changed, British and Australian politicians have been blatantly pressing their lawyers and judges on whether to accept certain appointments.”
Lawmaker Holden Chow Ho-ding called for more background checks in the future to avoid appointing foreign judges who had been critical of Hong Kong and its governance.
“If a judge has commented on how bad the national security law is, he or she may not be suitable to serve on the top court,” Chow said.
Judiciary Administrator Esther Leung Yuet-yin said during the meeting there was no need to appoint more permanent judges given the Court of Final Appeal’s current workload.
But she did not respond specifically on whether more non-permanent judges should be appointed.
Professor Tan Cheng Han, head of City University’s faculty of law, said it would be a positive development for Hong Kong to appoint more judges from other jurisdictions.
“I do not think that the geopolitical tensions will affect the impartiality of eminent jurists from the countries mentioned. Nevertheless, I believe it is in Hong Kong’s interests to widen the jurisdictions from which overseas non-permanent judges can be appointed as legal talent is not confined to the existing jurisdictions,” he said.
“It is also true that more pressure may be applied to discourage lawyers and judges from those jurisdictions to accept appointments and it will be prudent to take steps to prepare for such a possibility.”
Tan, the head of the National University of Singapore’s faculty of law from 2001 to 2011, also said it was feasible and lawful for Singapore’s sitting and retired judges to serve as overseas non-permanent jurists at Hong Kong’s top court.
An advisory commission put forward Johnson Lam, currently vice-president of the Court of Appeal, for the permanent judge role, a recommendation accepted by Hong Kong’s leader earlier this month on account of his “well reasoned and balanced” judgments.
Lawmakers’ approval of the recommendation leaves Chief Executive Carrie Lam Cheng Yuet-ngor with the task of making the formal appointment.
More from South China Morning Post: