Having foreign judges sit in the Court of Final Appeal helps Hong Kong maintain its high degree of autonomy under the Basic Law and the independence of the judiciary, former chief justice Andrew Li Kwok-nang said.
In an article in Ming Pao Daily on Friday, Li, who was the city’s chief justice from the handover in 1997 to 2010, said the foreign judges’ participation does not violate either China’s sovereignty or Hong Kong’s autonomy.
It should become a permanent rather than a transitional arrangement, he said.
While Li did not specifically say why he made those comments, they were clearly aimed at rebutting what Rao Geping, a top law scholar in mainland China, had said earlier.
Rao said judges at every level of Hong Kong’s courts should be Hongkongers.
He said the existing arrangement in which foreign judges sit in the Court of Final Appeal can be seen only as transitional and may be subject to revision after 2047, 50 years after Hong Kong’s return to China.
Li stressed that the appointment of foreign judges is a unique concept like the principle of “one country, two systems”.
Such an arrangement has not only helped enhance the Court of Final Appeal’s experience and vision but has also won the trust of Hongkongers and the international community in Hong Kong’s judicial system and contributed to the independence of the judiciary, Li said.
The fact that foreign judges have to take an oath to perform their duties in the same way Hong Kong judges do, including promising to make their decisions independently, means they are on an equal footing with the local judges, he said.
As for whether the chief executive enjoys a constitutional status that transcends all three branches of government — executive, legislative and judiciary — Li said no one is above the law.
He said the relocation this month of the Court of Final Appeal to the premises of the former Supreme Court from the colonial era signifies that judicial independence will continue to be retained under the principle of “one country, two systems”.
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