Human rights lawyer Jonathan Man has stood up for Hong Kong’s recruitment system for judges, amid renewed calls from Chinese legal scholars to exclude “foreign judges” from the judiciary.
Last Friday, scholar Tian Feilong of the Beihang University’s Law School in Beijing wrote in Ming Pao that the development of Hong Kong’s judiciary and legal education system is mature enough so that “the number of foreign judges can be gradually decreased and their hiring can even be halted.”
“An aspect of Hong Kong’s judicial independence is the primary reliance on local legal talent,” Tien wrote. He then suggested inviting foreign judges to give advice as “friends of the court” instead of hiring them as judicial personnel.
But lawyer Jonathan Man of the Progressive Lawyers Group warned against Tien’s call on Tuesday: “If without any reasonable justifications the Basic Law is amended to ban foreign judges, it would deal a serious blow to the international community’s confidence in Hong Kong’s legal system, as well as Hong Kong’s status as an international financial hub.”
He criticised Tien’s claim that there is a high proportion of foreign judges. “Tien didn’t define ‘foreign,’” he said. “Some non-Chinese judges… may be permanent residents, or were born in Hong Kong and carry Hong Kong passports. It would be bizarre if Tien questioned the stance and competence of judges based on their skin colour.”
The lawyer added that the role of foreign judges is not to “help with the transitioning of Hong Kong’s legal system” as Tien suggested. Rather, he said, recruitment of judges from overseas is a right enshrined in the Basic Law, and this right forms part of the foundation of the One Country, Two Systems principle.
It is not the first time Chinese scholars have suggested removing “foreign judges” from Hong Kong’s judiciary.
In 2015, Peking University law professor Rao Geping accused foreign judges in Hong Kong of lacking understanding of the city’s mini-constitution. He suggested amending the Basic Law after 2047 to address the issue.
The renewed discussion on the nationality of Hong Kong judges came after Judge David Dufton sentenced seven police officers to two years behind bars for assaulting pro-democracy activist Ken Tsang in 2014. Some police supporters resorted to racial slurs and accused non-Chinese judges of “plotting against China and messing up Hong Kong.”
Beijing-backed newspapers Global Times and People’s Daily also ran commentaries criticising Hong Kong’s foreign judges.
Veteran journalist Ching Cheong warned last month that Beijing might want to capitalise on the court case to change Hong Kong’s legal system.
“The Chinese Communist Party has never given up the idea of reforming Hong Kong’s justice system. This was already hinted in the 2014 White Paper on the implementation of the One Country, Two Systems principle,” he said. The controversial document called judges “administrators” and said they should be patriotic.
On Monday, Rao said he did not attribute the “harsh sentence” against the officers to Judge Dufton being a British national. But he said Hong Kong should have employed more local and Chinese judges after the 1997 handover.
Beijing loyalist and ex-justice chief Elsie Leung Oi-sie said Wednesday that ethnicity should not be a factor in accessing a ruling. She added that the number of foreign judges is already on the decline, and that there is no need to change the legal system.
Article originally appeared in Hong Kong Free Press on 8 March 2017