judges

Chinese-only top court would
hurt HK’s global standing

Victor Fung Keung says our effective legal system should be left alone

The call from a legal expert
to appoint only Chinese
judges to Hong Kong’s
Court of Final Appeal is alarmist
and misguided. Such a move
would only erode investors’
confidence in the city.
Mainland scholar Cheng Jie,
a former researcher for the Basic
Law Committee, told a seminar
this month that the Court of
Final Appeal should be made up
only of Chinese nationals. She
said this would reflect the
principle of Hong Kong people
ruling Hong Kong. Alan Hoo,
chairman of the Basic Law
Institute, said she raised a valid
concern.
Their remarks were made on
the heels of former Secretary for
Justice Elsie Leung Oi-sie’s
criticism of Hong Kong judges
for failing to understand the
relationship between Hong
Kong and the Beijing
government.
The city’s top judge, Chief
Justice Geoffrey Ma Tao-li, said
last week that it was natural for
Hongkongers to speculate about
Leung’s recent criticism of the
judiciary. While speaking to a
small group at Oxford
University’s Harris Manchester
College, Ma said Leung had
every right to voice her opinion,
and Hong Kong’s higher courts
were subject to criticism like any
other body. But her background
and close ties to Beijing could
lead people to believe she was
voicing the views of certain
interests in Beijing, he said.
Although the views of Leung
and the two other legal experts
were noble and informed, most
people in this city, I believe,
would beg to differ. Hong Kong’s
prosperity hinges on whether it
can continue to be an
international city. Foreign
investors and businessmen
would lose confidence if local
top judges were influenced by
politics in Beijing. Hong Kong’s
seven million inhabitants would
become China’s burden if the
city lost its competitive edge.
We must be appreciative that
Beijing has tried very hard to
maintain Hong Kong’s
economic growth by sending us
thousands of tourists and
investments worth millions of
dollars. But Beijing has never
hinted that there’s something
wrong with our legal system.
Hong Kong’s legal system
prides itself on maintaining its
independence and preserving
the common law tradition. Any
moves to ruin these can only
hurt the city. The system has
worked well since the handover.
Why do we need to break it?
The Basic Law stipulates only
that the top judge in both the
Court of Final Appeal and the
High Court must be Hong Kong
Chinese. Other judges can be
citizens of any nation as long as
they are familiar with rules in
common law jurisdictions. We
should respect the Basic Law,
shouldn’t we? It is unwise to
bring politics into Hong Kong’s
legal systems. If all the judges are
local Chinese, what would
foreign investors think? The first
question they would ask is:
“Why?” It wouldn’t do Hong
Kong any good if foreign
investors have doubts.
At present, 10 of the 15 nonpermanent
judges of the Court
of Final Appeal come from other
common law jurisdictions such
as Britain, New Zealand and
Australia. If the Court of Final
Appeal works effectively and
fairly, let us keep it this way. It is
unwise to tie our own hands as
we face a very competitive and
ever-changing world.
Justice Secretary Rimsky
Yuen Kwok-keung should be
lauded for saying that “the
presence of overseas nonpermanent
judges helps to
enhance the international
reputation of our judiciary. Any
proposal to impose nationality
or residence requirements
would unduly restrict the pool of
talent that can be appointed as
judges”.
Fifteen years after the
handover, many patriotic
Chinese may be starting to focus
on the “one country” and not
the “two systems”, believing that
it’s time for Hong Kong to be
closely reintegrated, politically
and economically, with the
motherland. Their views should
be respected. However, the
reality is that Hong Kong can
only survive as a world financial
centre if it has a common-law
legal system free of political
intervention. We should build,
not erode, people’s confidence
in Hong Kong.

Victor Fung Keung is a local
commentator and co-ordinator
of the B.S.Sc in financial
journalism programme at
Hong Kong Baptist University