Judicial independence remains intact and solid in Hong Kong

A delegation of central government officials and experts led by Huang Liuquan, deputy director of the Hong Kong and Macao Affairs Office of the State Council, visited Hong Kong in August to explain the 14th Five-Year Plan (2021-25) to Hong Kong Special Administrative Region government officials and representatives of various sectors. The delegation, composed of representatives from various central authorities including the National Development and Reform Commission and the People’s Bank of China, presented insightful views on how Hong Kong can leverage its advantages, integrate into the Guangdong-Hong Kong-Macao Greater Bay Area, and participate in the “dual circulation” strategy as the country entered a new stage of reform and opening-up. What impressed me the most is that Zhou Chengjun, director of the People’s Bank of China’s Finance Research Institute, when talking about Hong Kong’s unique advantages, emphasized that Hong Kong is favored by overseas investors because of its free market, robust rule of law and integration with the international community.

As Hong Kong is the only common law jurisdiction in China that possesses a dualistic nature, it is important for Hong Kong to continue to play the role of “super connector” in the current geopolitical situation and be a facilitator of the “dual circulation” growth pattern, helping both the domestic market and global economy grow together. Unfortunately, Hong Kong’s uniqueness has been exploited by some Western powers to serve their own geopolitical interests at the expense of Hong Kong, particularly during the 2019 “black revolution” aimed at paralyzing the Hong Kong Special Administrative Region government, which stopped only after the National People’s Congress Standing Committee promulgated the National Security Law for Hong Kong on June 30 last year. Not surprisingly, those hostile Western powers fiercely accused Beijing of undermining Hong Kong’s rule of law to justify their illegal meddling in Hong Kong affairs, which is an internal affair of China’s. 

For example, in the so-called “Six-monthly report on Hong Kong” released in November, the then-UK foreign secretary, Dominic Raab, claimed that in view of the “potential risks” posed by the National Security Law, he would consider not allowing British judges to serve as overseas non-permanent judges of the Hong Kong Court of Final Appeal. Whether such criticism is valid notwithstanding, they have undoubtedly strengthened the ideological bias against China and misgivings of the international community about Hong Kong’s rule of law and judicial independence.

In September 2017, Lord Neuberger, who had just resigned from the presidency of the UK Supreme Court and is also a CFA overseas NPJ, likened the overseas NPJs to the canaries in the coal mines. He said that so long as they were happy to serve in the CFA, you would safely assume that all was well with judicial independence and impartiality in Hong Kong. On the contrary, if they started to leave in droves, that would represent a serious alarm call. Hence, when Lord Reed made a statement last month contending that Hong Kong’s judiciary continues to act largely independently of the government after the enactment of the National Security Law and he would continue to serve as an overseas NPJ with Lord Hodge, the deputy president of the UK Supreme Court, this was obviously a shot in the arm to the confidence of the global community in Hong Kong’s judicial system.

However, with all due respect, I do not fully agree with the canary analogy, because neither comparing these overseas NJPs to “canaries” nor describing the Hong Kong judiciary as “coal mines” can reflect the characteristics of this unique system of appointment of foreign judges from other common law jurisdictions. According to Article 92 of the Basic Law of the HKSAR, judges and other judicial personnel of the HKSAR shall be selected based on their judicial and professional abilities and may be recruited from other common law jurisdictions. Thus, the institutional arrangement of employing overseas NPJs from other common law jurisdictions is authorized by the National People’s Congress and reflects Hong Kong’s full enjoyment of independent judicial power and final adjudication power. Meanwhile, this recruitment is only a “may” rather than “shall” or “should”, which means that Hong Kong has the full right to employ foreign judges based on its actual needs. If, one day, Hong Kong decides not to appoint foreign judges to try cases in Hong Kong, it will not undermine Hong Kong’s judicial independence and impartiality.

Of course, the system of appointment of foreign judges will undoubtedly help Hong Kong, the only common law jurisdiction in China, maintain close ties with other common law jurisdictions and continue to be part of the common law world. At the same time, the appointment of overseas judges is indeed a two-way choice, that overseas judges should also be willing to accept the appointments. Since the foreign judges appointed to be NPJs are usually elite veterans from leading common law societies, their willingness to accept appointment is undoubtedly a high recognition of Hong Kong’s judiciary and judicial system. Therefore, the retention and effective use of the overseas NPJ system is of great significance to maintaining the image of Hong Kong’s judicial independence, consolidating the trust of the global market in the rule of law in Hong Kong and promoting the long-term stability of Hong Kong.

In the Greater Bay Area outline development plan, the central authorities offer full support for Hong Kong to become an international arbitration service center in the Asia-Pacific region, and the 14th Five-Year Plan (2021-25) formed this policy in the form of “top-level design” by the central government. As Hong Kong is the only international legal and dispute resolution service center in the Asia-Pacific region recognized by Beijing, this reflects the trust, affirmation and expectation of the sovereign State on the common law system, judiciary and legal practitioners in Hong Kong.

Five lawyers from the “professional” camp won out in the recent council election of the Law Society of Hong Kong, an outcome suggesting the legal community has taken the first step to get out of the haze of omnipresent politicization. Only by choosing to stand by the side of the rule of law can the legal profession continue to uphold the rule of law and the legal professionalism under the framework of “one country, two systems”. As President Xi Jinping said in a meeting with the then-chief executive in November 2014, the rule of law is an important cornerstone of Hong Kong’s long-term prosperity and stability. The more robust the rule of law in Hong Kong is, the brighter the prospects for socioeconomic development are.

The views do not necessarily reflect those of China Daily.