Prince William last week rightly condemned Britain’s historical role in the Jamaican slave trade. A timely counterpoint is the UK’s legacy of the common law and an independent judiciary for Hong Kong.
This inheritance is the principal reason for the city becoming the chief Asian financial hub. A sound regulatory regime and a legal system operated by incorruptible judges endowed Hong Kong with qualities that command the confidence of businesses internationally, including those in mainland China.
A strong local Bar, the presence of most major international law firms and ad hoc admissions of leading specialist counsel from other common-law jurisdictions, ensure that litigants have access to the very best representation.
The dynamic in this system is the quality of the judiciary, most especially at the top, in the Court of Final Appeal. Under Hong Kong’s mini-constitution, of the five judges who hear cases in the CFA, one is invariably a jurist from the UK, Australia, New Zealand or Canada. Each of those jurisdictions has shown great generosity by permitting the very finest judicial minds to be one of the CFA’s non-permanent judges (NPJs).
Analysis of CFA judgments demonstrates, unquestionably, the incalculable value that the NPJs bring to both the hearings and decisions. Cross-fertilization virtually always strengthens the species and the CFA’s judgments enjoy massive international standing.
The major beneficiaries of the presence of the foreign NPJs on the CFA are the people of Hong Kong.
Without diminishing or detracting from the quality and integrity of the indigenous judges, the fact is that the British and other Commonwealth judges add a broader perspective to the court’s deliberations.
Recent calls by some individuals for the British government to require its NPJs to resign are a serious miscalculation and would only deprive the CFA of a cornerstone of its judicial independence and quality. The ordinary people of Hong Kong would be the ultimate victims.
The calls for the withdrawal of the British NPJs are premised on the misconception that their very presence lends legitimacy to the National Security Law, to the provisions of which the critics object. The misconception arises from confusing the letter of the law with its interpretation.
The National Security Law, like any other law, is subject to judicial scrutiny and interpretation, and in Hong Kong this is a process done according to the common law. Additionally, and more to the point, though it receives a disproportionate amount of press, the National Security Law constitutes a tiny fraction of the law falling for consideration in Hong Kong’s courts.
Undoubtedly there are laws on the statute book with which an individual judge may disagree, but he or she is bound by judicial oath to administer the law, and the National Security Law is constitutionally legitimate.
That notwithstanding, if any judges find themselves morally conflicted, they would recuse themselves. Is it conceivable that any British judge, let alone those of its finest minds, would lend themselves to anything they found morally indefensible? These calls are an unwarranted calumny on the British NPJs.
Your own experience, Prime Minister Johnson, of the independence of British judges ought to have driven home to you that they are the modern sea-green incorruptibles.
The British NPJs on Hong Kong’s Court of Appeal are the UK’s finest legacy to the people of Hong Kong. It would surely be an indictment of the legacy you seek as a Briton, to be the one who took back this gift.
Neville Sarony QC SC, chairman, Hong Kong Bar Standing Committee on International Relations