• 法官閣下 咪走(住)!|戴啟思

  • 發布日期:2020-12-05 12:30
  • 法官閣下 咪走(住)!|戴啟思

 

Time to Say Goodbye - Not Yet!

Time to Say Goodbye - Not Yet!

The Government has a new enthusiasm for all things patriotic. This came about after some not-so-gentle prodding from the Liaison Office last week.

The Government now plans some refinements to the oath-taking by judges, legislators and public servants required under the Basic Law and some more besides. I refer to the proposal to introduce loyalty oaths for all public servants, and not just those that are mentioned in the Basic Law.

A few days ago the report came that the British Government was reconsidering its commitment to provide non-permanent judges (‘NPJ’s) to the Court of Final Appeal. This news could not have come at a worse or at a better time, according to your view about foreign judges.

That the UK may be about to pull the plug on the supply of NPJ’s came in the Foreign Secretary’s Six-Monthly Report on the state of affairs in Hong Kong. The report covered the eventful period from January to June of this year.

The Foreign Secretary’s cause for concern was the National Security Law and how it appeared to affect the independence of the Judiciary.

Hong Kong’s independent judiciary is a cornerstone of its economic success and way of life. The National Security Law provides that Hong Kong’s Chief Executive, rather than the Chief Justice, will appoint judges to hear national security cases. In addition to the provisions in the National Security Law that allow the mainland authorities to take jurisdiction over certain cases without any independent oversight, and to try those cases in the Chinese courts, this move clearly risks undermining the independence of Hong Kong’s judiciary, which is protected by paragraph 3(3) of the Joint Declaration. We will monitor the use of this requirement closely, including its implications for the role of UK judges in the Hong Kong justice system.

Whether you agree or disagree about threats to the independence of the Judiciary, Hong Kong now stands to lose a prize jewel from its common law crown if British judges no longer travel here to sit in the Court of Final Appeal.

There are at least four good reasons why these judges should continue to adorn our highest court.

First, their employment is contemplated by the Basic Law. NPJ’s are a part of the Hong Kong legal landscape. Article 82 vests the power of final adjudication in the Court of Final Appeal and provides that it ‘may as required invite judges from other common law jurisdictions’ to sit.

This power to call in judicial talent from oversea originated in that much-derided document of late, the Sino-British Joint Declaration on the Question of Hong Kong (‘JD’). Foreign judges for the court are included in that part of the JD which elaborates the PRC’s ‘basic policies’ regarding Hong Kong.

The power to call in foreign judges is not, therefore, an ‘add on’ or optional extra to the Basic Law. It is something that is of great constitutional significance-a ‘basic policy’ of the PRC-that the Government needs to do its best to hold onto if it wishes to preserve this part of the Basic Law.

Article 82 also knocks on the head the idea that ‘foreigners’ cannot discharge judicial functions in the HKSAR. If the PRC had thought that a foreign passport was an obstacle to holding judicial office, it would not have committed to the idea in the JD. There would have been a completely different Article 82 in that event.

Second, the judges are first rate. They are either sitting judges in the UK Supreme Court or have retired from sitting in that court. As a body of judges, the British NPJ’s are the supreme distillation of judicial talent from the common law world. It is a resource that is the envy of some other smaller common law jurisdictions which have had to go it alone after sundering their colonial ties with the UK.

The third reason is that they are a visible link to the wider common law world. Although we are reminded constantly that this is ‘one country’, the common law foundations of Hong Kong run deep-more than 150 years. It is this that makes the region unique in China.

Lawyers like to be reminded that the law that they practice in the courts here is not so very different from the law as practiced in Northern Ireland and New Zealand, two common law jurisdictions that are about as far apart geographically as can be.

The fourth reason is that they represent an international outlook. Hong Kong still aspires to be ‘Asia’s World City’ (Note: I am not saying that Hong Kong belongs to anyone other than the PRC. That assertion appears to be problematical to those who now police public speech.) The Secretary of Justice is keen to advertise Hong Kong to the world as an unrivaled place to do legal business in Asia.

A potent symbol of the HKSAR as an international legal hub is the Court of Final Appeal which appears to be cosmopolitan court that is dripping with legal talent.

I am a lawyer and would be devastated if the Foreign Secretary’s fears came to pass and British judges ceased to come here. I would like to do all I can to persuade him not to try to put an end to this link.

If British judges are willing to come here despite the current rows about the functions of the judiciary in a place that has-officially now-no separation of powers, then let them come. However, I doubt that my powers of persuasion are that good. I cannot do this on my own.

The HKSAR Government is the key here. It needs to demonstrate that the Foreign Secretary’s fears are unfounded and he has got the wrong end of the stick about the National Security Law.

It will not do that by strident assertions that the criticisms in the report are ‘groundless’ and that it constitutes yet another blatant attempt at ‘interference’ in Hong Kong affairs.

Although it may be disagreeable for some to hear it, the UK has a vested interest in what is going on in the HKSAR. That interest arises because it returned Hong Kong to the PRC on it giving solemn assurances in an international treaty that its ‘basic policies’ about Hong Kong would not change.

Nor will it help reassure the UK Government by harping on about instilling patriotic values in the Judiciary and the need for institutional reform to recalibrate judicial thinking.

If the HKSAR Government wants to support our treasured Court of Final Appeal as one of the bright stars in the common law firmament, it needs to engage with the UK Government about the concerns expressed in the Foreign Office report. If it does not do this, it has only itself to blame if the British judges are constrained to say ‘Goodbye’ one day soon.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

探索驚奇精彩的 wONdEr 故事,請LIKE 我們的Facebook Page,並設定為「搶先看」:

https://www.facebook.com/wondermedia.hk/

----------------------------

《噴火30年壹驚艷 性感女星典藏集》特刊現已出版,各大書報攤、便利店及《壹出版》網店有售,每本港幣九十八元正。

按此購買

----------------------------

守住新聞自由 和你撐壹週刊計劃 每月港幣$300起

按此了解更多

-----------------------------

英國移民、升學、就業、買樓生活資訊!

立即加入「走佬去英國 - BNO 5+1 移民資訊研究所