26 October 2016
Under the Basic Law, the Court of Final Appeal may invite judges from other common law jurisdictions to serve on the bench. Photo: AFP
Under the Basic Law, the Court of Final Appeal may invite judges from other common law jurisdictions to serve on the bench. Photo: AFP

How Beijing is trying to weaken our judiciary

Among the three branches of government in Hong Kong — executive, legislative and judicial — the judiciary has been getting the most flak from the central government in Beijing and its establishment allies.

That’s because the judiciary is the only remaining branch of government over which Beijing has no control.

By contrast, the central government has a say in almost all positions in the executive branch.

And the current election system guarantees that a considerable number of seats end up in the pro-establishment camp. 

Moreover, the “split voting” system in the Legislative Council ensures that pro-establishment legislators can block any motion or bill proposed by the opposition.

Since Beijing can’t shake our judiciary from within, it is trying to weaken it from without, hence the recent relentless sniping at our courts and judges.

The most sinister of these attacks are being leveled by pro-establishment lawmakers and organizations at the courts’ decision to acquit pro-democracy protesters.

This year is the 25th anniversary of the proclamation of the Basic Law. There have been various seminars and events to commemorate it.

Most of these events have been organized by pro-establishment groups, some of which have used these occasions to smear our judiciary.

It is said that in one of the seminars, foreign judges were accused of not having enough knowledge of the Basic Law and Chinese laws and are therefore unable to uphold the of law.

Some legal experts from the mainland even suggested that the Basic Law should be amended so that only ethnic Chinese in Hong Kong can serve as judges.

Article 92 of the Basic Law stipulates that judges and other members of the judiciary “shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions”.

Also, Article 82 states that final adjudication is vested in the Court of Final Appeal “which may, as required, invite judges from other common law jurisdictions to sit on the Court of Final Appeal”.

These two provisions not only form the legal foundation for the appointment of foreign judges but also clearly explains the logic behind it — Hong Kong falls within common law jurisdiction.

One of the key characteristics of the common law system is that judges often have to refer to decisions by their counterparts in other common law jurisdictions.

Under the common law system, impartiality has absolute priority.

Regardless of their nationality and background, judges only take into account legal principles, the relevant laws and previous court decisions when issuing rulings.

In fact, Hong Kong is deeply indebted to foreign judges for helping us maintain rule of law.

Ironically, ever since the handover, most of the destructive acts against our judicial system, including the government’s decision to ask the National People’s Congress standing committee to interpret the Basic Law, have been spearheaded by Hong Kong Chinese.

Using nationality as a pretext to attack the professionalism of foreign judges is not only xenophobic but also completely unfounded.

If we amend the Basic Law to ban foreign judges, we would be making a major step backward in our legal system to a point below the pre-1997 standard.

And that would spell disaster for the Basic Law and “one country, two systems”.

This article appeared in the Hong Kong Economic Journal on Apr 21.

[Chinese version 中文版]

Translation by Alan Lee

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Legco member representing the Legal functional constituency (2012-2016) and a founding member of Civic Party

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