Will Hong Kong join Singapore, Malaysia in ditching foreign judges after British law lords' exit?

Hong Kong's legal fraternity was left with much to reflect on when Britain withdrew its last two serving judges from the city's highest court last month, citing concerns over the Beijing-imposed national security law and its implications for political freedom.

The resignation of the UK Supreme Court's president and vice-president from their concurrent positions on Hong Kong's apex court closed the chapter on a long-standing arrangement often viewed as a strong endorsement of the city's rule of law.

In his departing statement, Supreme Court president Robert Reed said he and his deputy Patrick Hodge "cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression".

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"The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong's leading court, and would risk legitimising oppression," Britain's Foreign Secretary Liz Truss said later, adding: "We have seen a systematic erosion of liberty and democracy in Hong Kong."

The justices' exit - described by Hong Kong officials as politically driven - shrank the pool of British judges on the Court of Final Appeal to six, ostensibly posing a threat to the city's reputation for having an independent judiciary.

At the same time, it called into question the role foreign judges play in the city and whether they were still needed, given the judiciary's advances in the 25 years since the end of colonial rule.

After all, Hong Kong is one of the few former British colonies that has retained such a mechanism - having British judges sit on its top court - with other Commonwealth jurisdictions, including Australia, Canada, Malaysia and Singapore, ditching similar systems as early as seven decades ago.

Reacting to the departures, former chief justice Andrew Li Kwok-nang said last month that Hong Kong needed to prepare for the level of participation of overseas non-permanent judges to "not be the same as before".

"Times have moved on and circumstances have changed," said Li, who presided over the judiciary from 1997 to 2010, adding that he did not think the resignations would affect the quality of Hong Kong's top court.

Some legal observers said it was possible Hong Kong would now follow in the footsteps of other ex-British colonies such as Singapore and Malaysia in removing foreign influence from their judiciaries altogether.

"It is a question of when, rather than whether, Hong Kong would end the practice of having foreign judges sit on its Court of Final Appeal," said Eugene Tan, an associate professor of law at Singapore Management University.

But others argued that Hong Kong still saw great value in having British judges sit in its highest court and unlike other former colonies, the city had no reason to do away with a unique arrangement that had so far worked in its favour.

Even after the end of British colonial rule, many Commonwealth nations chose to retain the Judicial Committee of the Privy Council as their highest and final court of appeal.

Appeals to the Privy Council, which traces its history back to the time of the Normans, were originally designed to allow imperial subjects living outside Britain to petition its monarchy for relief against injustices suffered in local courts.

The council's modern-day judicial committee was established in 1833 by an act of parliament that forms the basis of its constitution to this day.

The committee, which mostly consists of justices from the UK Supreme Court and senior Commonwealth judges, has been viewed as a way for Britain to unite and bind its former colonies. But young, freshly independent nations have also benefited greatly from a mechanism that investors often view as providing stability, thanks to its uniform interpretation and application of English common law.

This was the case for Singapore, which gained independence in 1965, said Tan, the law professor. "For a new nation-state and one so dependent on trade and investment, the rule of law and an independent judiciary were vital in developing the trust and confidence the business community has in Singapore," he said.

Retaining appeals to the judiciary committee was a "pragmatic move" for Singapore as it developed its legal system, Tan said. "But by the early 1990s, we could afford and were more than ready to cut the apron strings."

Michael Hor, former dean of law at the University of Hong Kong, said Singapore's move to phase out appeals to the Privy Council committee came in response to what the government felt was "unacceptable interference" in domestic politics by a decision that "appeared to exonerate" a prominent opposition politician.

He was referring to the late Joshua Benjamin Jeyaretnam, a firebrand opposition politician and lawyer who had been disbarred in 1987 following a conviction for mishandling Workers' Party funds. In 1988, the Privy Council overturned his disbarment, and concluded that Jeyaretnam - who was repeatedly sued by leaders of the country's ruling party for defamation - had in fact suffered "grievous injustice".

By then, Tan said it was clearly "incongruous" to have a London-based court staffed by British and Commonwealth judges deciding on cases in Singapore - especially those of a political nature.

"There was the danger of foreign norms and values being imposed from afar without the sensitivity to and understanding of the local context," he said. "Put simply, having foreign judges interpret and apply Singapore law raises legitimate questions of why our courts could not do better."

When the city state eventually moved to sever ties with the Privy Council in 1994, lawmakers pointed to how legal, economic, social and political developments had placed it on a different path from Britain.

They reasoned that abolishing the appeal mechanism would give Singapore jurisprudence an opportunity to develop, as continued reliance on the Privy Council committee would only hinder the law's development.

"The time has come for us to cut the last strands of this legal umbilical cord once and for all," Singapore's then law minister S. Jayakumar said at the time.

Tan said Singapore ditched the Privy Council appeals process only when its judiciary had sufficiently established a reputation for quality and efficient dispute resolution - effectively nullifying any concerns that disputants would not have their day in court.

Other former British jurisdictions cut ties with the council before Singapore. Canada and India were among the first to do away with appeals to it in 1949 and 1950, respectively. In Southeast Asia, Malaysia replaced the Privy Council's judicial committee with its own Federal Court in 1985.

For some of these countries, having a foreign court at the apex of the judicial system did not sit well with the fundamental notions of sovereignty and independence, while other governments found they disagreed with the committee's judgments.

In other cases, the number of appeals sent to it were so few and far between that governments simply decided to shelve the system.

But to this day, the Privy Council's judicial committee remains the final court of appeal for some jurisdictions, including the three Crown Dependencies - Jersey, Guernsey, and Isle of Man - and British overseas territories such as Bermuda and the Cayman Islands.

In Brunei, there is a separate arrangement under which the sultan allows appeals against civil matters to proceed to the committee, which tenders advice to him rather than to the British crown.

Hong Kong's Court of Final Appeal replaced the functions of the Privy Council mechanism upon the city's handover from Britain to China in 1997.

The court is mostly composed of local judges, but under Article 82 of the Basic Law, Hong Kong's mini-constitution, it "may as required invite judges from other common law jurisdictions to sit".

For the past quarter-century, Britain's House of Lords has provided two serving law lords, referred to since 2009 as Supreme Court justices, to sit on Hong Kong's top court under an agreement dating to the time of the handover.

The arrangement was described in 2020 as part of Britain's "continuing commitment to safeguarding the rule of law in Hong Kong" by Baron Reed of Allermuir, as the UK Supreme Court president who recently resigned from his position in Hong Kong is formally known.

He wrote that the two serving British judges had made an "important contribution" to the Court of Final Appeal's work, "not only in civil and commercial cases, but also in cases concerned with rights of protest and free speech".

Victor Dawes, chairman of the Hong Kong Bar Association, said in a round-table discussion this month that judges from overseas would continue to play an important symbolic role.

"Their presence sends a message to the local and international community that all is well with Hong Kong in terms of rule of law and judicial independence," he said.

While the senior barrister welcomed the localisation of Hong Kong's courts and said there were "good quality" judges in the city, he cautioned against completely phasing out foreign legal specialists who are renowned for their expertise in certain areas of law.

"Their contribution is huge," Dawes said at the discussion organised by the University of Hong Kong's Centre for Comparative and Public Law.

Asked if Reed and Hodge's resignation would affect business sentiment in Hong Kong, Dawes said the continued presence of other retired non-permanent judges would mitigate the impact.

"This is a place where, because of the unique structure [and] the infrastructure in Hong Kong, there are thriving business opportunities," he said.

Still, Anna Dziedzic, a postdoctoral fellow researching comparative constitutional law at the University of Melbourne, said at the same discussion that the resignation of foreign judges would often be read - even if unintended - as a statement of concern.

She gave the example of Fiji, where a 2006 coup led to six foreign judges resigning, citing concerns about how the courts were being run under the interim military government.

Simon Young Ngai-man, associate dean of research at the University of Hong Kong's law faculty, told the round table that the role of foreign judges had changed since the time of the handover, when they were needed to "catalyse" the city's judiciary.

"We were, frankly speaking, a blank canvas at that time and the incoming [judges] had so much more experience. They had so much more to contribute to our system" he said. "Now, they are more like icing on the cake."

It appears that overseas judges write fewer majority opinions nowadays, Young said, and are not involved in as many sensitive cases related to public law and human rights.

"You don't see a lot of sustained impact by a small number of judges which we did see under the Li court," he said, referring to the former chief justice under whose watch there were 15 foreign judges.

Hong Kong still has 10 overseas non-permanent judges on its apex court, but the number has varied over the years from as low as six in 1997 to 15 under Li, and according to Young their contributions have been "spread thinly".

Any changes to Hong Kong's existing judicial system would depend on multiple factors, Young said, including whether the remaining overseas non-permanent judges agreed to renew their appointments when their terms expire, and whether new foreign judges could be appointed.

A decision would also have to be made on whether a small group of foreign judges make a "concentrated contribution" to jurisprudence, he said.

Hor, the former dean of law, said that former British colonies tended to first restrict the "foreign element" in their judiciaries before cutting ties with overseas judges entirely.

Malaysia, for instance, phased out appeals to the Privy Council committee over a seven-year period from 1978 to 1985, while Singapore terminated appeals in stages from 1989 to 1994.

This could be seen as a "natural consequence" of those countries gaining independence from Britain, Hor said, adding: "Political independence must mean legal independence - the freedom of the jurisdiction to develop in a manner which may not accord with the 'parent' legal system."

Hong Kong differed from the examples above, Hor stressed, as its Court of Final Appeal only ever has one overseas judge sitting among three local ones - meaning the impact of decisions made by foreigners was realistically limited to those occasions when the rest of the bench is not in agreement.

By comparison, the London-based Privy Council committee typically counts no local judges among its members. "The sacrifice of legal independence is considerably less for Hong Kong," Hor said.

For Malaysia and Singapore, the need for legal independence outweighed any perceived benefits of maintaining links with the Privy Council and the assurances it professedly offered to investors and others that everything was business as usual.

But Hor said Hong Kong must have made the calculation that the presence of foreign judges lent international legitimacy to its judiciary and outweighed the need for it to strike out in a legal direction with which they may not agree.

While the two British judges' resignations were significant, Hor said this appeared to have been counterbalanced by the 10 other retired foreign judges' decision to remain.

A "precipitating" event of the sort that caused Singapore to cast off appeals to the Privy Council could motivate Hong Kong to jettison foreign judges, he said, but it would take a much greater upset because of their limited participation in the decision-making process of the city's Court of Final Appeal.

Young said Hong Kong was unlikely to give up on its unique arrangement, as it allowed for local legal talent to be nurtured while retaining an "international quality" to the court that reassured others of its independence.

"This arrangement has served Hong Kong very well since 1997, and there is no reason why it must come to an end any time soon," he said, adding that the city was fortunate in not having grappled with some of the same political and societal issues as other British colonies.

"The mechanism has a flexibility and adaptability that can help weather storms such as the one we are currently passing through," Young said.

This article originally appeared on the South China Morning Post (SCMP).

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