Hong Kong’s judicial system shouldn’t be politicized

Some people in Hong Kong debated publicly whether foreign judges still have confidence in Hong Kong’s judicial independence after a foreign non-permanent judge on the Court of Final Appeal resigned last month, even though he did not give specific reasons for his departure. In response to speculation, CFA Chief Justice Geoffrey Ma Tao-li urged the public not to politicize Hong Kong courts or judges because politicization will adversely affect judicial independence. The debate over foreign judges’ confidence in Hong Kong’s judicial independence is another attempt by the opposition camp to challenge the National Security Law passed by the National People’s Congress Standing Committee in late June for implementation in Hong Kong. Ma’s statement, meanwhile, showed his reluctance to reckon that some judges’ political preference may have already adversely affected judicial fairness and impartiality. These judges are increasingly under pressure to put aside their own political preference as the practice of “one country, two systems” requires them to embrace Hong Kong’s constitutional status as a special administrative region of China.

The Central People’s Government, in order to maintain Hong Kong’s stability and prosperity after China resumed the exercise of sovereignty over the city, has adopted the monumental “one country, two systems” principle for Hong Kong to keep its capitalist system while exercising “the people of Hong Kong administering Hong Kong” with unprecedented autonomy, including judicial independence, its own Court of Final Appeal and hiring qualified judges from other common law societies to serve on the High Court with limited tenure. Foreign judges can serve in Hong Kong’s courts, including the Court of Final Appeal, according to the Basic Law. For this arrangement to work, Hong Kong must meet two conditions: ensure all its judges, regardless of nationality, switch allegiance from the British Crown to the HKSAR of the People’s Republic of China after July 1, 1997; and require all judges to remain politically neutral in the HKSAR.

Before 2018, although Hong Kong politics had already turned confrontational with the opposition camp openly defying the central government’s authority and the “one country” red line with such illegal campaigns as the “Occupy Central” movement of 2014 and the Mong Kok riot in 2016, the judiciary in general remained neutral.

Political challenges began to gain in intensity in 2018 after the United States adjusted its global strategy, which treats China as its main strategic rival and Hong Kong as a bargaining chip to extort China with. As a result, the confrontational relationship between the two political camps in Hong Kong grew increasingly toxic in 2019, when the US orchestrated the “black revolution” using the extradition law amendment bill as an excuse. This year, Washington geared up to contain China by stepping up its “New Cold War” strategy.

With Hong Kong’s political environment affected by the treacherous international politics, the question regarding some judges’ allegiance to the HKSAR finally surfaced after being “buried” for 23 years. If the recent surge of public demand for judicial reform triggered by a spate of controversial court rulings and sentences obviously in favor of rioters arrested for criminal offenses during the street violence and vandalism can be described as “politicizing the judiciary”, the judiciary must first realize some of the judges gave the public good reason to question their integrity by exhibiting personal political preference in court rulings.

Foreign judges’ nationality poses little if any problem when their countries are on good terms with China. That’s a fact. Today, however, it is common knowledge the US, the United Kingdom, Canada, Australia and New Zealand, also known as the “Five Eyes” alliance, are working together against China in the “New Cold War”. Since most of the foreign judges serving in Hong Kong are from those common law countries, it is natural for them to feel pressured when their nationality and political upbringing overshadow their judgment in politically charged cases.

I am not suggesting Hong Kong should reduce or let go of foreign judges. I am merely asking the SAR government and the judiciary, as well as members of the public, to pay attention to the unavoidable question of foreign judges’ allegiance under growing pressure from conflicts of interest between their own countries and China amid rising geopolitical rivalry.

It is more a choice of the foreign judges than Hong Kong’s, as a matter of fact.

The judiciary is an institution of political power, which means judges must pledge allegiance to the sovereign state that employs them to administer justice. It is therefore only fair for any government to demand allegiance from all judges on behalf of the local community, and it should not be seen as putting political pressure on the judges or asking too much.

The judiciary is an institution of political power, which means judges must pledge allegiance to the sovereign state that employs them to administer justice.