In May 1983, I visited Beijing with a group of young talents assembled by Allen Lee Peng-fei. Prior to departure, Xinhua News Agency gave us a nice send-off, therefore after we returned to Hong Kong, we returned the gesture.

Li Jusheng, then-deputy director of Xinhua News Agency’s Hong Kong office, played a significant role in the Chinese delegation at the Sino-British negotiations. Before the banquet, I seized the opportunity to discuss privately with him the issue of final adjudication after the Handover. I asked him, “After 1997, where will the Hong Kong Court of Final Appeal be located?”, to which he returned with a question, “Where is it located now?” “In the Privy Council in London,” I answered. “You are not suggesting that after the Handover it stays in London, are you?”, he replied immediately. “Of course not!”, I said. He then replied, “Then, it should be located in Beijing.” “That is very fair, but where do the judges come from?” “Of course from Hong Kong. Our judges do not know Hong Kong law.” “That is very fair as well. Where do the law books we need in court come from?” “Of course you will bring them from Hong Kong.” I said, “The whole arrangement is fair and feasible, but can you do us one favor?” “What is it?”, he asked. I asked, “Can the Court of Final Appeal be located in Hong Kong?” “Yes,” he replied. That was a time when mainland officials took in opinions and always responded that they would be reflected to Beijing. His straight-forwardness surprised me.

I continued to ask him, “Then, who will be the judges of the Final Appeal court?” He said, “Of course they are your judges. Don’t you often tell us how great and how clean the Hong Kong judges are?” I said, “Indeed. Compared to other judges in other Southeast Asian regions, they are indeed very good judges; However, compared with the judges of the Privy Council in the United Kingdom, they still have distance to go. From the perspective of foreign investors, if one is involved in criminal or civil litigation, the Hong Kong independent judges can be trusted. Moreover, he can eventually appeal to the Privy Council, therefore he is confident that the highly-respected Privy Council judges will make fair and just rulings without being influenced by Hong Kong or even the British government. But comes 1997, when Hong Kong becomes a part of China, knowing the mainland legal system…” “You don’t have to tell me how the legal system in the mainland is like. I am very aware,” Li Jusheng interrupted me immediately. Looking solemn, he asked, “So what are your suggestions?” “I hope that there will be three judges from other common law jurisdictions will be a part of the Court of Final Appeal together with two local judges. These foreign judges do not require a long-term appointment to stay in Hong Kong, but will be invited on occasion to handle cases. Given time, it shows to the foreign investors that Hong Kong is still under the rule of law, and you can rest assured to continue your investments in Hong Kong.” He pondered, and responded, “this is a great proposal, but will the British agree?” I said, “If you accept the proposal, I could talk to them.” The following day, I met with Michael David Thomas, then-Attorney General of Hong Kong, and gave the same proposal. He was very happy with what he heard, but asked me, “Will China agree?” I said, “Don’t worry, just fight for it!”

In the end, the above arrangement was clearly stipulated in the 1984 Sino-British Joint Declaration, and became Articles 19 and 82 in the later Basic Law promulgated in 1990. At that time, Beijing often emphasized that Hong Kong SAR was granted the right of final adjudication, some greater autonomy to even before the Handover. Although the Basic Law does not specify the number of foreign judges, the English version of the Law uses the plural form “judges”. As such, the Final Court has the right to invite two or more foreign judges to participate in a trial. Unfortunately, the British side later signed a memorandum of understanding with China during the construction of the new airport, and the two parties reached a secrete agreement that foreign judges will be limited to the maximum of one person. Therefore, the Hong Kong Court of Final Appeal Ordinance stipulates that the judges responsible for the final court hearing are the Chief Justice, three permanent judges, and one non-permanent judge, who is to be invited from within the list of Hong Kong non-permanent judges and other non-permanent judges in other common law jurisdictions. So far, the Final Court has a foreign judge in every trial, but will future cases involving the National Security Law change this practice?

Article 44 of the National Security Law stipulates that the Chief Executive shall appoint judges from all levels of courts to hear national security cases, and the Office for Safeguarding National Security and the Chief Justice of the Final Court may advise on the candidates. However, the government has yet to announce the list of judges designated by courts at all levels to handle national security cases. Will it be as rumored that foreign judges and overseas judges of the final court are to be completed ruled out? The list of judges should be public information, therefore the government is absolutely obliged to provide that information clearly to the public.

At the beginning of this month, James Spigelman, a non-permanent judge of the Final Appeal court from Australia suddenly resigned. This was reportedly related to the content of the National Security Law passed by Beijing. Since Article 65 of the National Security Law stipulates that the interpretation power of the Law belongs to the Standing Committee of the National People’s Congress, it is absolutely understandable that overseas judges are worried that they will not be able to make independent rulings. However, overseas judges' worries about the judiciary in the SAR did not happen overnight. As early as 2008, when Xi Jinping visited Hong Kong as the vice president of the country, he had already proposed the theory of three powers cooperation. In 2014, the Information Office of the State Council issued a white paper stating that judges, as “Hong Kong’s administrators”, must “be loyal to the country”. Furthermore, when the National People’s Congress interpreted Article 104 of the Basic Law in 2016, it stated that civil servants must swear “allegiance to the Hong Kong Special Administrative Region ‘of the’ People’s Republic of China”. The words “of the” implied that judges, who are civil servants, must also swear allegiance to the SAR and the country at the same time.

For judges from other common law jurisdictions, the current situation in Hong Kong is hard to accept. Moreover, just as the government responded to judge Spigelman’s resignation, it stated that, “the legal system is as robust as ever under the National Security Law, that judicial independence is not undermined in any way, that Hong Kong now restores law and order, which makes Hong Kong an even more attractive place for doing business, rather than the contrary as some have misrepresented the Hong Kong situation.” However, the SAR government has made it crystal-clear that it is assisting the Chinese Communist Party to implement its full governance in Hong Kong through the National Security Law, that it does not hesitate to smash Hong Kong rule of law’s “gilded signboard”. Then, why would overseas judges come all the way from afar, and trade in their own reputations to “polish” the signboard for the special region?

(Martin Lee is a barrister and founder of Hong Kong’s Democratic Party.)

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