The Use of Overseas Judges: A Comparative Perspective

The use of non-local, expatriate, foreign, or overseas (the terminology varies in the literature; for consistency I will use ‘overseas’ hereafter) judges on appellate courts is unusual in common law jurisdictions but not unheard of. Dale finds that there are three different common law judicial models that adopt the use of overseas members.Footnote ⁵ The first of these he calls the ‘expatriate model’, under which judges are drawn from other nations to sit on local appellate courts. A number of microstates of the South Pacific use this model. The Fiji Islands allows non-citizens to serve as judges on renewable three-year terms providing they have held high judicial office in another country (from a specified list) or have practiced in another country for at least fifteen years.Footnote ⁶ Kiribati allows the appointment of non-citizens to the Court of Appeal providing they have held office as a judge in another country.Footnote ⁷ The Marshall Islands allows the appointment of non-citizens to any of its courts providing they are approved by a Commission.Footnote ⁸ Micronesia allows the appointment of anyone with at least five years’ experience practicing law in any jurisdiction to its Supreme Court.Footnote ⁹ Nauru allows the appointment to the Court of Appeal of anyone entitled to practice for five years as a barrister or solicitor in Nauru, and this entitlement has been interpreted to include foreign judges who may not necessarily have qualified locally.Footnote ¹⁰ Palau allows non-citizens to be appointed to its Supreme Court providing they have been admitted to practice law before the highest court of their home jurisdiction for at least five years prior to appointment.Footnote ¹¹

Papua New Guinea allows the appointment of non-citizens as judges at any level if they have practiced law in another jurisdiction with a substantially similar legal system for at least five years or has been a judge of a court of unlimited jurisdiction in the same.Footnote ¹² Samoa allows the appointment to its Supreme Court of non-citizens who have practiced as a barrister in an ‘approved country’ for a period of not less than eight years.Footnote ¹³ The Solomon Islands allows non-citizens to be appointed as judges to the Court of Appeal providing they have held high judicial office in any Commonwealth country (or a non-Commonwealth country as prescribed by Parliament), or if they have practiced as a barrister or solicitor in such a country for not less than five years.Footnote ¹⁴ The Tongan Court of Appeal allows the appointment of non-citizen judges if they have held high judicial office elsewhere or have practiced as a barrister in a Commonwealth country for not less than ten years.Footnote ¹⁵ Tuvalu allows the appointment of non-citizens as judges to its High Court if they have served as a judge in any legal system ‘similar’ to that of Tuvalu, or if they have practiced for not less than five years as a barrister or solicitor in the same.Footnote ¹⁶ Vanuatu allows non-citizens to be appointed to the bench as a matter of convention, though the practice is not specified in its constitution.Footnote ¹⁷

The ‘expatriate model’ is also found outside the South Pacific. In Botswana, for instance, anyone who has held office as judge of a court of unlimited jurisdiction in a Commonwealth country may be appointed to sit on the Court of Appeal.Footnote ¹⁸ Indeed that Court is currently composed entirely of judges drawn from fellow Commonwealth member nations, and no ethnic Motswana has ever been appointed. High Court judges (who in contrast are all Motswana) are allowed, however, to sit in the Court of Appeal while it is in session in order to prepare for ‘eventual localization’, though when that will occur is unspecified.Footnote ¹⁹ Gambia allows the appointment of individuals to its Supreme Court who have held office on a similar court of unlimited jurisdiction in another common law country for not less than five years, or who have practiced before a court of unlimited jurisdiction in another common law country for not less than twelve years.Footnote ²⁰ Lesotho allows the appointment of overseas judges who have held judicial office elsewhere in the Commonwealth (or outside the Commonwealth as prescribed by Parliament) for at least five years.Footnote ²¹

Singapore uses a variant of this model: its constitution allows the appointment of what it terms ‘international judges’ to its Supreme Court.Footnote ²² However, the constitution also provides that Parliament may limit the classes of cases that may be heard by an international judge.Footnote ²³ Currently, international judges are limited to sitting only in the Singapore International Commercial Court.Footnote ²⁴ Swaziland allows the appointment of non-citizens to the Supreme Court if they have either practiced law in another Commonwealth country or the Republic of Ireland for not less than fifteen years, or if they have served as a judge in a superior court of unlimited jurisdiction in the same for not less than seven years.Footnote ²⁵ Finally, while Brunei does not allow its courts the power of judicial review of legislation, the Sultan may refer questions of constitutional interpretation to a three-person tribunal. Non-citizens may be appointed to the tribunal; all that is required is that it be composed of one member who has previously held judicial office or practiced law for at least twenty years anywhere in the world, one who must have done the same for ten years, and one who is an expert in Islamic tradition or law.Footnote ²⁶

The above examples are all drawn from the common law world,Footnote ²⁷ but there are also two examples of the model being used in civil law jurisdictions and one in a hybrid jurisdiction. In Liechtenstein, the constitution provides that while the President of the Constitutional Court must be a citizen, two of the other four members need not.Footnote ²⁸ In Monaco, members of the Supreme Court must simply be over 40 and ‘selected from competent jurists’, and in practice are frequently drawn from the senior ranks of the French judiciary.Footnote ²⁹ In Seychelles, appointees to the Court of Appeal must only satisfy the Constitutional Appointments Authority that they can effectively discharge the role.Footnote ³⁰ The majority of judges in Seychelles are non-citizens.Footnote ³¹

There are also two examples of the expatriate model being used in post-conflict scenarios as part of a reconciliation process, though only one remains.Footnote ³² The 1960 Constitution of Cyprus was written in part with the goal of managing tensions between the Turkish and Greek Cypriot communities. One tool in the service of this goal was a Supreme Constitutional Court composed of one Turkish-Cypriot judge, one Greek-Cypriot judge, and one judge from a neutral third country, who would also act as the President of the Court.Footnote ³³ Ersnt Forsthoff (a German) acted as President of the Court from 1960–1963, though the system ultimately collapsed under the strain of continued constitutional crises and conflict.Footnote ³⁴ While the relevant provision remains ‘on the books’ of the Cypriot Constitution, the Supreme Court – for which the constitution does not mandate the use of overseas judges – has absorbed all the functions of the Supreme Constitutional Court.Footnote ³⁵ A similar tripartite model has been in use in Bosnia & Herzegovina since the end of the conflict of the 1990s. Bosnia & Herzegovina is composed of two territorial political entities as established in the Dayton Accords – the Federation of Bosnia & Herzegovina (FBiH), and Republika Srpska (RS). The mandated composition of the Constitutional Court reflects an attempt to mediate judicial struggle between the former armed combatants in part through the use of overseas judges as ‘balancers’ on the Court. The Court is composed of nine members: four selected by the House of Representatives of the FbiH, two selected by the Assembly of the RS, and three selected by the President of the European Court of Human Rights.Footnote ³⁶ The latter three judges may not be citizens of Bosnia & Herzegovina or any neighbouring state.Footnote ³⁷

Dale's second model is the ‘supranational appellate’ model, in which a Court hears appeals from two or more national jurisdictions and produces a single supranational jurisprudence.Footnote ³⁸ For instance, the Judicial Committee of the Privy Council in the United Kingdom continues to hear appeals from the following Commonwealth countries: Antigua and Barbuda, the Bahamas, the British Indian Ocean Territory, the Cook Islands, Niue, Grenada, Jamaica, St Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Tuvalu.Footnote ³⁹ The Court of Appeal of the Eastern Caribbean Supreme Court hears appeals from the local High Courts and Magistrates Courts of Antigua and Barbuda, the Commonwealth of Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, as well as three British Overseas Territories (Anguilla, the British Virgin Islands, and Montserrat).Footnote ⁴⁰ The Caribbean Court of Justice hears appeals from the courts of Barbados, Belize, and the Commonwealth of Dominica.Footnote ⁴¹ The now defunct East African & West African Courts of Appeal also used this model.Footnote ⁴²

The third model Dale identifies is the ‘offshore municipal’ version, whereby one territory uses another's appellate court as its own court of appeal. Though the court in this model does hear cases from more than one jurisdiction, the court's primary purpose is located within its home jurisdiction and the judges only take an oath to serve their home societies.Footnote ⁴³ This distinguishes it from the supranational model. Unlike the expatriate model, overseas judges in the offshore model are also not individually imported to serve temporarily on a local court – rather an entire overseas court sits as, in effect, a local appellate court. For instance, the Solomon Islands and Kiribati used the Fijian Court of Appeal as their appellate court until 1977, while Western Samoa used the Court of Appeal of New Zealand as its appellate court until 1962.Footnote ⁴⁴ Nauru relied on the Australian High Court as its appellate court between 1976 and 2018, at which point it withdrew from the relevant treatyFootnote ⁴⁵ apparently to ensure the successful prosecutions of three political dissidents.Footnote ⁴⁶ There are no remaining examples of this model.

The Hong Kong system of ‘overseas non-permanent judges’ reflects Dale's ‘expatriate’ model, and it is to it that I now turn.

The Use of Overseas Judges on the Hong Kong Court of Final Appeal

The 1984 Joint DeclarationFootnote ⁴⁷ between the United Kingdom and the People's Republic of China delineated the basic terms upon which sovereignty over Hong Kong would be transferred from the former to the latter, including the promise of a high degree of autonomy for Hong Kong including an independent judicial system. These and other ‘basic policies’ regarding Hong Kong were to be implemented through a Basic Law and would remain unchanged for fifty years.Footnote ⁴⁸ Annex I to the Joint Declaration expanded on the meaning of these ‘basic policies’. In the context of the judicial system, this included assurance that ‘judges shall be chosen by reference to their judicial qualities and may be recruited from common law jurisdictions’ (emphasis mine).Footnote ⁴⁹ That principle was subsequently incorporated into the Basic Law, which was promulgated in 1990 (though of course did not take effect until 1 July 1997). Annex II to the Joint Declaration created the Sino-British Joint Liaison Group (JLG) to address and resolve any issues regarding the implementation of the Joint Declaration.Footnote ⁵⁰

One of these issues was the practical implementation of inviting overseas judges to sit on the new Court of Final Appeal, which would replace the Judicial Committee of the Privy Council as Hong Kong's apex court. While the Basic Law made it clear that the Chief Justice had to be a Chinese national with no right of citizenship or permanent residency elsewhere, there was no further detail given on how precisely the Court ought to be composed.Footnote ⁵¹ Jordan says this ambiguity was ‘welcomed’ by the people of Hong Kong, who believed it ensured the flexibility necessary to protect ‘the independence of the judiciary and to retain investors’ confidence in the legal system.’Footnote ⁵² However, the JLG seemed to circumscribe this flexibility when it proposed the ‘4+1 model’: the Court of Final Appeal would be a five-member panel composed of the Chief Justice, three permanent members drawn from Hong Kong, and one rotating ‘non-permanent’ judge drawn from one of two panels. The first panel would be composed of retired or serving Court of Appeal judges, while the second panel would be composed of prominent judges from other common law jurisdictions. The fifth judge would alternately be drawn from each panel. The ‘demand to restrict foreign judges’ was a response, argues Jordan, to ‘China's recent realization that the independence of the judiciary in the common law context’ meant much more than the ability properly adjudicate disputes ‘within the parameters set by the supervisory organs.’Footnote ⁵³ While the JLG's discussions leading to the ‘4+1 model’ were unpublished and ‘recorded solely in [its] confidential records of the meetings’,Footnote ⁵⁴ the proposal was nonetheless interpreted at the time as acquiescence to the Chinese members’ demands regarding the composition of the Court.Footnote ⁵⁵

Both the Bar Committee and the Council of the Law Society opposed the proposal, arguing that limiting the use of overseas judges to one on any given case meant the putative Court of Final Appeal would pale in stature to the Privy Council it sought to replace, and would be nothing more than a re-branded Court of Appeal.Footnote ⁵⁶ In December 1991 the Legislative Council formally debated the ‘4+1’ proposal. Opponents argued that the Basic Law referred to ‘judges’ (plural) from common law jurisdictions and thus there should be more than one overseas judge on the bench at any given time.Footnote ⁵⁷ Others suggested that Hong Kong lacked a sufficient pool of high quality judicial talent, and so the new Court ought to be able to more easily drawn on overseas expertise in its early days.Footnote ⁵⁸ Still others argued that the language of Article 82 of the Basic Law seemed to leave it to the Court itself to determine under which circumstances to invite overseas judges to participate, but the ‘4+1 model’ greatly limited that freedom.Footnote ⁵⁹ On this account, the restriction to a single overseas judge (and none at all half the time, given the use of alternating panels) ‘contravened the spirit and the letter of the Joint Declaration and the Basic Law.’Footnote ⁶⁰ Supporters of the proposal argued in turn that ‘judges’ (plural) referred only to the possibility of inviting multiple judges to sit as part of the overseas panel rather than an obligation to have more than one hearing a given case.Footnote ⁶¹

The Legislative Council rejected the proposal 34–11, the ‘first time in history that the Hong Kong legislature had stood up to oppose an agreement reached by Britain and China on the future of Hong Kong.’Footnote ⁶² Yet despite this opposition, almost no meaningful concessions were obtained; only a series of technical amendments were proposed in response by the Political Affairs Subgroup of the China-based Preliminary Working Committee (PWC).Footnote ⁶³ The sole substantive concession offered by the PWC was to abandon a proposal that would have seen final decisions of the Court subject to veto in exchange for a clear commitment that that Court would not have jurisdiction over acts of state.Footnote ⁶⁴ The Legislative Council eventually accepted the ‘4+1 model’ in 1995 in exchange for an agreement that the legislation to establish the Court would be immediately passed, even though it would not come into effect until 1 July 1997.Footnote ⁶⁵ The fear had been that if the proposal was again rejected and legislation establishing the Court was not enacted by the colonial legislature, then Beijing might impose a significantly worse option when it had a freer hand to do so in 1997.Footnote ⁶⁶ While some continued to argueFootnote ⁶⁷ that new legislationFootnote ⁶⁸ was contrary to the Joint Declaration and the Basic Law, no formal legal challenge was brought.Footnote ⁶⁹

The Court of Final Appeal thus came into existence on 1 July 1997 on the lines of the ‘4+1 model’. Then and now, to be eligible for appointment as an overseas non-permanent judge a proposed candidate must be a judge or retired judge of a court of unlimited jurisdiction in another common law jurisdiction, ordinarily resident outside Hong Kong, and never have served as a judge of the High Court or District Court or as a permanent magistrate in Hong Kong.Footnote ⁷⁰ The Chief Executive acting in accordance with the recommendation made by the Judicial Officers Recommendation Commission (JORC) nominates all judges, both local and overseas.Footnote ⁷¹ The JORC is composed of nine members: the Chief Justice (who sits as chair), the Secretary of Justice, two other judges, one barrister, one solicitor, and three persons unconnected with the practice of law.Footnote ⁷² The JORC votes to recommend on a supermajority basis – where nine members are present, seven must vote in favour to advance a recommendation. The Legislative Council must endorse any recommendations made for the appointment of overseas judges under this process and any appointment must subsequently be reported to the Standing Committee of the National People's Congress.Footnote ⁷³

Overseas judges take the same oath of office as the local judges, requiring them to uphold the Basic Law and ‘bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China.’Footnote ⁷⁴ They are unrestricted in the cases over which they may preside. They are limited, however, to renewable three-year terms whereas the permanent (local) judges are appointed until the statutory retirement age. The overseas panel is currently composed of fourteen members, all regarded as of the very highest calibre.Footnote ⁷⁵ Former overseas judge Sir Anthony Mason said that all of his colleagues on the Court of Final Appeal (both local and overseas), were ‘of irreproachable integrity [and] dedicated to the rule of law.’Footnote ⁷⁶ Reflecting on his experience as a local judge working alongside the overseas members, Justice Joseph Fok found a particular advantage they brought was specialist expertise in discrete areas of the law.Footnote ⁷⁷ There is not, however, tremendous diversity to their backgrounds. At the time of writing in early 2020, all fourteen members of the overseas panel are white, and only two are women (indeed, these two are the first women ever to sit on the Court of Final Appeal in any capacity). There are nine BritonsFootnote ⁷⁸ (all of whom are Oxbridge educated), four Australians, and one Canadian.

Do capacity concerns justify the use of overseas judges on the Hong Kong Court of Final Appeal?

Capacity concerns often drive the choice to import appellate-level judges (or export judicial decision-making to a supranational body) in the small former British colonies or protectorates. Each had the common law imposed upon it as part of the colonial process, and part of the imposition of a foreign legal system involved importing those trained in it to administer it on the local population.Footnote ¹⁰² This made the use of overseas judges a long-term experience.Footnote ¹⁰³ Boyd argues that for many former colonies the long-term use of overseas judges meant there were simply insufficient numbers of high-quality local personnel to take on all the top roles in the judiciary when they achieved independence.Footnote ¹⁰⁴ Overseas judges, she says, ‘frequently [had] longer experience, impeccable track record[s], and access to better research facilities and capacity to access law reports.’Footnote ¹⁰⁵ These were precisely the skills needed at the appellate level, and so the use of overseas judges remained a practical necessity in the immediate post-colonial period; imported judges were used to ‘inf[use] both formal and informal knowledge’ into newly independent legal systems.Footnote ¹⁰⁶ Continued reliance on overseas judges, says Baird, allows the very small South Pacific states to ‘overcome the very real limitations of a small pool of local legal talent.’Footnote ¹⁰⁷ Even years after independence, very small states lacking indigenous legal capacity may import high quality legal talent as means of accessing ‘judicial expertise … at limited cost.’Footnote ¹⁰⁸

But paradoxically, the use of overseas judges may also exacerbate capacity issues. Take Botswana, which though poor has a population of two and half million and a local LLB programme at the University of Botswana.Footnote ¹⁰⁹ This suggests an ability to generate homegrown judicial talent to a far higher degree than the South Pacific microstates with populations in the tens of thousands. Yet there has been little progress since Botswana's independence in 1966 towards a localized apex court; as noted above it is still composed entirely of imported judges. If a perception has been created during the colonial period that judges are necessarily or automatically from elsewhere because they are of ‘higher quality’, then that may be internalized and continue even post-independence. In turn, this may stymie the drive within the local population to aim for a career on the bench; it may appear that doors into that career are simply not open for them. So while overseas judges may indeed bring much-needed expertise, their presence may also ‘delay rather than hasten the development of domestic lawyers’ capacity or willingness to sit as judges on their own country's courts.’Footnote ¹¹⁰

The widespread failure of the colonial Government to ensure adequate Chinese appointments to the bench at all levelsFootnote ¹¹¹ surely impacted the optics of ‘what a judge looked like’ in Hong Kong and likely had an impact on local interest in judicial careers pre-1997. This legacy meant that the idea that overseas judges might be considered for the newly planned Court of Final Appeal did not necessarily appear as unusual at the time as it may now. Separately, as Justice Fok explains, the role of the Court of Final Appeal was not simply to be ‘a second court of appeal reviewing again the decision of a trial court. Instead, it fulfils the role, at the apex of the court hierarchy, of resolving questions of law of general importance.’Footnote ¹¹² Since that role had been played during the colonial period by the Privy Council, perhaps it was reasonable to expect that the new Court would continue to be supplemented by colleagues drawn from overseas.Footnote ¹¹³ On the other hand, such supplementation was not deemed necessary in other cases where the role of the Privy Council was superseded by a new domestic apex court (Canada, Australia, New Zealand etc) and thus the question of why it should be so in Hong Kong remains open.

In any event, even if capacity issues resulting from a long period of colonial rule over Hong Kong might have justified the initial use of overseas judges on the Court of Final Appeal, it is very hard to make the same argument 22 years later. Hong Kong is a highly developed city of over 7 million people with ample resources, both financial and intellectual. Not only are local judges extremely well-trained (either at home or abroad), thanks to the rise of global access to electronic legal resources every judge has at their fingertips every decision ever made in the common law world. Since 1997 Hong Kong has also seen the establishment of a third law school in the city, the Faculty of Law at the Chinese University of Hong Kong (established in 2006 as a School of Law), adding to the existing Faculty of Law at the University of Hong Kong (established as a Department of Law in 1969) and the Faculty of Law at City University of Hong Kong (established as a School of Law in 1987). All three law schools offer both undergraduate and graduate degrees in law, and all three are ranked in the top 50 on a global basis.Footnote ¹¹⁴ These world-class institutions graduate hundreds of highly trained students each year and though currently only one permanent member of the Court of Final Appeal is locally trained,Footnote ¹¹⁵ it is reasonable to expect that that this will change as increasing numbers of locally-trained barristers rise through the system.

The number of non-Chinese speaking expatriate judges throughout the legal system has rapidly declined since 1997 due to the replacement of retiring judges with local appointees; ‘most of the newly recruited members of the Judiciary … are Chinese HKSAR permanent residents who often received their legal education in Hong Kong.’Footnote ¹¹⁶ All of the original members of the Court of Final Appeal have retired (though threeFootnote ¹¹⁷ continue to serve post-retirement as non-permanent judges on the local panel); there have been no difficulties in replacing those members with local appointees. In sum, capacity reasons do not now justify the use of overseas judges on Hong Kong's Court of Final Appeal, if they ever did.

Can the overseas judges be justified as ‘more independent’ than their local counterparts?

Another argument put forth for the use of overseas judges elsewhere is that they are less likely to be swayed by local considerations, thus upholding the ideals of judicial independence. Dixon and Jackson note a court with overseas judges has ‘the potential for greater relative independence and impartiality on the part of individual judges, and thus, of the bench as a whole.’Footnote ¹¹⁸ Boyd suggests that overseas judges bring with them not only ‘respected experience, wisdom, and learning, but they are also seen to be above local political and cultural divisions.’ Considering the small scale of Pacific island nations and their cultural emphasis on kinship and community, Boyd argues that the probability that a local judge will be swayed in his or her decisions by improper factors is increased.Footnote ¹¹⁹ She suggests that ‘corruption … is a constant challenge in such societies, and the threat of payback or retribution against a judge by an aggrieved party is a real danger.’Footnote ¹²⁰ Overseas judges, she concludes, are less likely to be subject to such pressures because they are only temporary residents and have no local family members who could be pressured. Dale too argues that judges in both the expatriate and supranational models are more likely to ‘remain truly independent of the concerns that might otherwise cloud the mind of a judge who is a citizen of that country’, especially in small communities where judges may come into regular personal contact with litigants.Footnote ¹²¹ Powles makes a similar point, noting that in small South Pacific societies overseas judges are more easily able to maintain the “social distance” required of an arbitrator seeking to maintain the appearance of independence vis-à-vis litigants who appear before her.Footnote ¹²²

However, Baird contends that there is no clear evidence (at least in the context of the South Pacific) that the independence claim is accurate; she argues it is something that appears in large part to be taken as read rather than based on evidence.Footnote ¹²³ Moreover, while Hong Kong is a relatively small jurisdiction, its population is on an entirely different scale than those of the South Pacific microstates – 7.5 million versus the 13 000 of Nauru or the Tonga population of 110 000. Judges in Hong Kong simply do not face anything like the same possibility of being caught up in small networks of kin that might call their neutrality into question. Singapore (5.7 million) and New Zealand (4.9 million) are both smaller jurisdictions than Hong Kong and do not have to resort to importing judges as full members of their top courts (indeed, New Zealand has actually exported its judges not only to the South Pacific micro-states, but Hong Kong as well).Footnote ¹²⁴

In fact, the expatriate model may pose a challenge to judicial independence since imported judges are frequently employed on short-term contracts rather than under conditions of life or long tenure. Under both the Valente principlesFootnote ¹²⁵ and the Beijing Statement of Principles on judicial independence,Footnote ¹²⁶ security of tenure is critical in ensuring the judicial branch is protected from improper influence from the legislative or executive branches. Yet Dziedic's research shows that the typical overseas judge imported into a small South Pacific state is hired on a renewable three-year contract.Footnote ¹²⁷ This raises the possibility of improper influence being exercised on an overseas judge not by members of the community, but rather the other branches of Government. Vanuatu's experience in using imported overseas judges on lucrative short-term contracts is perhaps instructive of the possible dangers inherent to the model. In 1995 one overseas judge (Robert Kent, an Australian) resigned after completing only half of his three-year appointment. He was reported to have believed that the Chief Judge of the Court of Appeal (also an overseas judge, Briton Charles Vaudin d'Imecourt) was insufficiently independent from the Government; Kent implied Vaudin d'Imecourt was overly concerned about having his USD300 000/year appointment renewed.Footnote ¹²⁸ Though Kent's allegations were never conclusively proven and Vaudin d'Imecourt's tenure came to an end two years later for other reasons,Footnote ¹²⁹ the episode highlights a potentially problematic aspect of dependence on ‘contractual’ overseas judging. As Dale indicates, there is always the risk that a judge on a short-term contract might ‘deliberately or subconsciously tailor judgment to find favour with the executive or legislative arms.’Footnote ¹³⁰ This is true notwithstanding the fact that an overseas judge may nonetheless sit alongside local colleagues appointed to long or life tenure such that the tribunal in question may as a whole still be considered ‘independent’.

As noted, Hong Kong's overseas judges are all hired on renewable three-year contracts and must be nominated by the JORC (over which the Chief Executive has considerable influence). However, no accusations of bias towards the state in order to ensure contract renewal have been levied at them (indeed, as I later show, just the reverse). The overseas judges have been drawn at the tail-end of long careers in wealthy jurisdictions during which they will have been well remunerated for many years. Each is also used sporadically (typically four weeks per year) rather than on a full-time basis for the duration of the three-year appointment. Together, these factors mean it is highly unlikely that an overseas judge in Hong Kong would meaningfully depend upon the compensation received and risk damaging carefully nurtured reputations by seeking to please the Government. While one cannot discount the possibility of a subconscious preference for the Government's position, the infrequencyFootnote ¹³¹ with which the overseas judges depart from the reasoning of their local colleagues suggests this is unlikely. Questions regarding the neutrality or objectivity of the overseas judges in Hong Kong as compared to their local counterparts do not seem to be a legitimate ground of concern.

In fact, the overseas judges in Hong Kong help contribute to a different aspect of judicial independence: the autonomy of Hong Kong's legal system from that of the mainland under the ‘one country, two systems’ model.

The Overseas Judges as Symbolically Communicating the Separation between the ‘Two Systems’

Overseas judges may sometimes be used in post-conflict scenarios as a stabilizing buffer between competing groups. Schwartz, for instance, suggests the use of judges with no connection to the conflict can mediate risks of ‘ethnic bias or “victor's justice.”’Footnote ¹³² On this account, their symbolic value is equally if not more important than the practical skills they bring. As Dixon & Jackson argue

While the transition to Chinese rule was peaceful and bloodless, the completely different approach to questions of law and justice – and in particular the role of the Court vis-à-vis other branches of the state – applied by the new sovereign in the majority of its territory have created an analogous need for symbolic reassurance regarding Hong Kong's judicial independence. This is in some ways similar to Dziedzic's contention that one of the roles the overseas judges play in the microstates of the South Pacific is to ‘signal the distinction between [common law courts] and the law they dispense, and co-existing customary legal systems.’Footnote ¹³⁴ The presence of the overseas judges signals, both domestically and internationally, that the courts of Hong Kong remain distinct from the courts of mainland China. While Hong Kong has never been a liberal democracy, its general adherence to certain principles of liberal constitutionalism – in particular the notion of judicial independence – is a key aspect of the ‘one country, two systems’ model. Though Hong Kong's commitment to the rule of law and neutral courts has often been exaggerated and venerated in an unjustified way,Footnote ¹³⁵ it nonetheless is a governing principle held in deep regard by the population.Footnote ¹³⁶

But the importance of independent courts extends beyond the protection of civil liberties within Hong Kong. It is also what separates it from other Chinese cities in terms of its attractiveness as a financial centre. The international community needed to know that post-1997 the rule of law remained robust, that the courts of the region were independent from influence, and so Hong Kong would continue to be a safe place for business to be conducted. The presence of the overseas judges was, in part, a means to communicate that message:

As Lin notes, the overseas ‘[judges] bear the greatest symbolic value of Hong Kong's preservation of the rule of law and judicial independence.’Footnote ¹³⁸ Goodhart and others also argue that the initial reason for inviting overseas judges to sit on the Court was to not only to give people confidence in it, but to give people confidence in the judiciary as a whole.Footnote ¹³⁹ Mushkat too says those chosen were perceived as a kind of ‘international judicial link, ensuring the Court's true independence and membership of the highest standard.’Footnote ¹⁴⁰ The judges themselves seem acutely aware of this. Justice Mason, for instance, has said it was important for the new Court to be ‘be seen to conform to internationally accepted judicial standards,’Footnote ¹⁴¹ and that ‘in the eyes of people elsewhere, particularly people who are looking at Hong Kong as an international financial centre, it probably gives a degree of reassurance that you have overseas judges of international reputation’ on the Court.Footnote ¹⁴² Likewise, Chief Justice Ma reports that he is ‘told constantly by people in business and commerce that the presence of these judges is a significant contributing factor to the confidence with which Hong Kong's legal system in particular and the rule of law in the city in general are held.’Footnote ¹⁴³

Thus, says Justice Fok, the overseas members act as a kind of ‘canary in the coalmine’ – they would not continue to take positions on the Court if they felt the other members were being subjected to inappropriate pressure or there was some other kind of systemic problem.Footnote ¹⁴⁴ Scheppelle describes how a key shift towards illiberalism in Hungary under Viktor Orbán was the capture of the constitutional court so that it was ‘no longer independent of the governing party’.Footnote ¹⁴⁵ The ongoing presence of the overseas judges on the Court of Final Appeal is a symbolic message that such capture has not (yet) happened in Hong Kong. Current overseas judge (and former President of the UK Supreme Court) Lord Neuberger of Abbotsbury has spoken of how he and his colleagues would only continue to take positions on the Court of Final Appeal if they were confident in its independence:

This principle has precedent: all the overseas judges on the Fiji Court of Appeal resigned in 2006 following a coup, claiming the Chief Justice was improperly interfering in their work in favour of the new government.Footnote ¹⁴⁷ Likewise, the resignation of Australian Geoffrey Eames as Chief Justice of Nauru in 2014 was interpreted externally as an important signal that the rule of law was under dire threat from an overbearing executive.Footnote ¹⁴⁸ And it is here that we find the sole justification for the use of the overseas judges in Hong Kong: their communicative function regarding the status of the independence of the judiciary writ large. As Lin puts it, ‘the day China becomes a rule of law state will be the day on which it will no longer be necessary for Hong Kong to have expatriate judges.’Footnote ¹⁴⁹ Domestically, their continued presence informs Hong Kongers about the practical level of judicial autonomy promised under the ‘one country, two systems’ model – any move to formally limit their use would likely be interpreted as a significant encroachment. Externally, their presence reassures the outside world that Hong Kong's judicial system remains sufficiently separate from that of the mainland that Hong Kong remains an attractive and safe place do business.

The Historical Role of the ‘Overseas Judges’

The first Chief Justice of the Court of Final Appeal, Andrew Li, developed a convention by which a member of the overseas panel would be asked to sit on every case, while the local panel would only be used to fill in when a permanent member was unavailable.Footnote ¹⁵⁰ This practice continued under Li's successor, Geoffrey Ma, and has meant virtually all cases heard by the Court have had an overseas member as part of the bench.Footnote ¹⁵¹ Lo notes that ‘the contributions of [the overseas judges] while adjudicating cases on fundamental rights and the Basic Law have been invaluable.’Footnote ¹⁵² Lo, and Young and Da Roza cite in particular the multiple contributions of Justice Sir Anthony Mason to the development of local constitutional jurisprudence.Footnote ¹⁵³ Justice Fok declares that Justice Mason was the obvious choice to write the opinions on a number of important constitutional issues that had to be addressed in the early years of the Court, given his expertise and interest.Footnote ¹⁵⁴ These cases included determining when the Court must request an Interpretation from the Standing Committee,Footnote ¹⁵⁵ the question of ‘legal certainty’ within the proportionality test,Footnote ¹⁵⁶ and the ability of the Court to engage in constitutional remedial interpretation.Footnote ¹⁵⁷ In so doing, Justice Mason made significant and lasting contributions to the development of the law of Hong Kong. Dixon and Jackson also tap Lords Millet and Hoffmann as having made ‘important contributions to the court's common law and commercial caseload.’Footnote ¹⁵⁸

Young and Da Roza found that between 1997 and 2010, approximately one-quarter of the majority judgements were written by the overseas member of the bench.Footnote ¹⁵⁹ The prodigious work of the early overseas judges, they say, ‘brought international influence to the Court.’Footnote ¹⁶⁰ Dixon and Jackson agree, arguing that the reputation and efforts of the overseas judges has meant that decisions from the Court of Final Appeal have attracted attention elsewhere in the common law world.Footnote ¹⁶¹ Some of this influence may be seen in the positive citation of decisions of the Court of Final Appeal in England & Wales, Scotland, Australia, Canada, New Zealand, Malaysia, Singapore, the Eastern Caribbean territories, the Cayman Islands, Trinidad & Tobago, the Fiji Islands, and Tonga.Footnote ¹⁶² Lo identifies Cheng v Tse Wai Chun,Footnote ¹⁶³ penned by overseas judge Lord Nicholls as ‘the Court of Final Appeal judgment that has had the most positive impact in the common law world.’Footnote ¹⁶⁴ Unquestionably, the overseas judges have had a significant role in shaping Hong Kong's jurisprudence, particularly in the early years of the Court of Final Appeal.

Reducing the Prominence of the ‘Overseas Judges’: 2011–2019

My analysisFootnote ¹⁶⁵ of the output of the Court of Final Appeal between 2011 and 2019 reveals a notable change in the role the overseas judges play. Not only has the percentage of lead judgments written by an overseas member dropped from the time period analyzed by Young and Da Roza (1997–2010), the overseas members also no longer appear to write individual opinions when the matter relates to human rights protections under the Basic Law or the relationship between Hong Kong and the Central Authorities.

In 2011, the Court issued 22 substantive decisions, seven of which had a lead opinion written (solely or jointly) by an overseas member (31.8 per cent). The seven opinions dealt with the beneficial ownership of portions of an estate,Footnote ¹⁶⁶ unjust enrichment claims,Footnote ¹⁶⁷ calculation of a ‘disturbance payment’,Footnote ¹⁶⁸ the doctrine of state immunity,Footnote ¹⁶⁹ the assessment of rateable value,Footnote ¹⁷⁰ evidentiary standards,Footnote ¹⁷¹ and the doctrine of encroachment.Footnote ¹⁷² In 2012, the Court issued 26 substantive decisions, six of which had a lead opinion written (solely or jointly) by an overseas member (23.1 per cent). The six opinions dealt with the meaning of ‘notifiable infectious disease’ in the context of an insurance policy,Footnote ¹⁷³ false trading in the securities market,Footnote ¹⁷⁴ governing law and issue estoppel in a commercial context,Footnote ¹⁷⁵ an industrial action,Footnote ¹⁷⁶ statutory construction,Footnote ¹⁷⁷ and Government rent payable on construction sites.Footnote ¹⁷⁸

In 2013, the Court issued 29 substantive decisions, seven of which had a lead opinion written (solely or jointly) by an overseas member (24.1 per cent). Those decisions considered negligence and the employment relationship,Footnote ¹⁷⁹ insider trading,Footnote ¹⁸⁰ rectification on grounds of mutual mistake,Footnote ¹⁸¹ obligations to produce original documents as part of a transaction,Footnote ¹⁸² judicial review of a decision taken by a professional regulated body,Footnote ¹⁸³ voice identification evidence,Footnote ¹⁸⁴ and the exercise of a put option.Footnote ¹⁸⁵ In 2014, the Court issued 28 decisions, five of which had lead opinions written by an overseas member (17.8 per cent). Those five decisions dealt with a loss sustained in the context of a breach of copyright action,Footnote ¹⁸⁶ tax assessments and objections thereto,Footnote ¹⁸⁷ the expiry of applicable limitation periods,Footnote ¹⁸⁸ the mens rea requirement of a money laundering offence,Footnote ¹⁸⁹ and the termination of a fuel franchise by the Airport Authority.Footnote ¹⁹⁰

In 2015, the Court of Final Appeal issued 27 decisions, five of which had a lead judgment written (solely or jointly) by an overseas member (18.5 per cent). Those five opinions dealt with the enforceability of a contract in Hong Kong governed by Hong Kong law when it had been performed in the mainland partly in breach of Chinese law,Footnote ¹⁹¹ a winding up order,Footnote ¹⁹² the interpretation of a ‘home-made’ will,Footnote ¹⁹³ statutory duties of an employer relating to health and safety,Footnote ¹⁹⁴ and the admissibility of evidence.Footnote ¹⁹⁵ In 2016, the Court of Final Appeal issued 27 decisions, four of which had a lead judgment written by an overseas member (14.8 per cent). The four opinions dealt with limitation rules applied to corporate law obligations,Footnote ¹⁹⁶ shipping law,Footnote ¹⁹⁷ the duties owed by a director,Footnote ¹⁹⁸ and trademark infringement.Footnote ¹⁹⁹

In 2017, the Court of Final Appeal issued 22 decisions, five of which had a lead opinion written by an overseas member (22.7 per cent). The five opinions dealt with the calculation of licence fees paid to the Communications Authority,Footnote ²⁰⁰ the compensation payable due to the extinguishment of marine rights,Footnote ²⁰¹ the meaning of ‘manage’ under a regulatory scheme related to hotels and guesthouses,Footnote ²⁰² the liability of assessment of a utility provider,Footnote ²⁰³ and fiduciary duties in estate disbursements.Footnote ²⁰⁴ In 2018 the Court issued 23 decisions, five of which had lead opinions (solely or jointly) written by an overseas member (21.7 per cent). The five opinions dealt with the standards of corporation regulated by securities law,Footnote ²⁰⁵ whether the absolute privilege extended to false statements reported in open court extends to the individual who originally made them,Footnote ²⁰⁶ the obligation to maintain certain slopes,Footnote ²⁰⁷ the meaning of malice and qualified privilege under defamation law,Footnote ²⁰⁸ and the interpretation of an insurance policy.Footnote ²⁰⁹

In 2019, the Court issued 18 decisions, three of which featured lead opinions written (solely or jointly) by an overseas member (16.7 per cent). These dealt with family trustsFootnote ²¹⁰ and (on two separate occasions) the meaning of a computer-related provision of the criminal law.Footnote ²¹¹ Taken together, this means over the last nine years (2011–2019) the percentage of decisions of the Court of Final Appeal with a lead judgment written solely or in part by an overseas judge has declined to 21.6 per cent;Footnote ²¹² over the last five years (2015–2019) the figure stands at under 19 per cent.Footnote ²¹³ This is a statistically relevant decline in relative output when compared with Young and Da Roza's analysis of the portion of lead opinions penned by an overseas judge between 1997–2010 (24 per cent). Moreover, the decisions that are penned by the overseas members no longer touch upon the most controversial constitutional questions faced by the Court. This is not to diminish the importance of the recent cases for which the overseas judges have taken the lead, but it is striking that not a single one of those opinions over the last five years deals with questions of the boundaries of human rights protections under the Basic Law or the relationship between the Region and the rest of China. Indeed, the above case analysis shows that no overseas member has (identifiably) penned such an opinion since Justice Sir Anthony Mason's contribution to Democratic Republic of the Congo in 2011.

Interestingly, this change coincides in part with the increasing use of completely unattributed unanimous opinions on the Court (that is, a decision with no identifiable author and attributed only to ‘the Court’). In a separate paper I show that this new style of opinion delivery properly emerged in 2014 and was used 12 times between then and 2019.Footnote ²¹⁴ Adding those opinions to the numbers of lead opinions written solely or in part by an overseas judge in those same years, and you get a number that exceeds what Young and Da Roza found in the Court's earlier period: 28 per cent.Footnote ²¹⁵ It is striking that the emergence of decisions attributed only to ‘the Court’ beginning in 2014 generally tracks the decrease in individually penned judgments by the overseas members, though I do not claim that all (or even a majority) these unattributed opinions are in fact written by the overseas judges under cover of group identity. However, it is possible that the two processes are both responses to the tightening political climate in Hong Kong and associated threats to judicial independence. In the Part that follows I suggest that the best way to interpret the reduced prominence of the overseas judges is to understand it as a strategic attempt by the Court to minimize avenues for attacks on the legitimacy of its decisions whilst maintaining the signalling benefits the overseas judges bring. It is a strategy that at its core is aimed at preserving the independence of the Hong Kong judiciary under the ‘one country, two systems’ model.

Critiques of National Origin

I explained in Part II there are valid concerns that can be raised about the importation of judges tasked with answering critical socio-legal questions in jurisdictions that do not need to for reasons of capacity. In Hong Kong, however, questions about the legitimacy of the overseas judges in Hong Kong appear to have largely been co-opted for political purposes rather than made out of genuine principle. The most notable early opposition came in the aftermath of Cheng v Tse Wai Chun. Footnote ²¹⁶ Cheng dealt with two individuals charged with defamation for comments made during the course of a radio talk show they hosted. The plaintiff had a significant media profile, a ‘celebrity solicitor’ who also owned a travel agency. This combination of professions had led to him to be a legal advisor to several ‘concern groups’ formed to support a Hong Kong tour guide who had been arrested in the Philippines. After the plaintiff advised the guide to not seek monetary compensation due to his arrest, the defendants suggested on-air that this was out of a concern for the economic well-being of the travel industry rather than in the best interests of the tour guide. While Lord Nicholls's judgment was essentially apolitical itself, it nonetheless quickly became seen through the lens of competing political affiliations: the defendants hosted a talk show that expressed pan-democratic views, while the plaintiff was a high profile supporter of the government.Footnote ²¹⁷ Cottrell describes how Lord Nicholls was ‘excoriated’ by pro-government commentators as someone with ‘no roots and no understanding of Hong Kong’ and that he had ‘no accountability’ for his decisions.Footnote ²¹⁸ She cites a contemporary commentator in the popular press who criticized Lord Nicholls as a

Writing in 2013, Young and Da Roza concluded that these kinds of critiques had ‘never reached an audible or sustained level.’Footnote ²²⁰ The following year political tensions in Hong Kong dramatically increased with the Occupy Central protests,Footnote ²²¹ and similar language to that initially deployed after Cheng began to return in cases with some connection to Hong Kong's great political chasm. In 2017, Judge David Dufton sentenced seven officers to two years in prison for a serious assault on a pro-democracy protestor during the Occupy protests. Though refusing to say if he were speaking directly about Dufton, Legislative Councillor Wong Kwok-kin described some judges in Hong Kong as having ‘white skin with a yellow heart’.Footnote ²²² Thereafter there were calls on social media for Dufton to be physically attacked.Footnote ²²³ In 2018, Principal Magistrate Bina Chainrai sentenced a police officer to three months in prison for assaulting a bystander during the protests; pro-establishment protestors gathered outside the Court and chanted ‘dismiss all foreign judges; we want Chinese ones!’Footnote ²²⁴

In fact, neither Chainrai nor Dufton are ‘imported’ or ‘overseas’ judges in the sense considered in this article. Chainrai was born in India but moved to Hong Kong to study law when young; she is a long-term permanent resident. Dufton was born in the United Kingdom but is also a permanent resident, having lived in Hong Kong since 1982. Being a judge drawn from an ethnic minority is not the same thing as being an ‘overseas judge’, and of course neither sit on the Court of Final Appeal. But the abuse suffered by Chainrai and Dufton speak to the nature of the criticisms that can befall the overseas judges too: that their ‘foreignness’ makes their judicial decision-making inherently suspect. For instance, one Mainland scholar was reported in the press as saying that non-ethnic Chinese judges are unable to ‘understand the “one country” connotation [in the “one country, two systems” model]’ and that ‘only local judges [can be] sensitive to Hong Kong's deteriorating social order under the impact of social movements.’ Another complained that there was no rule about the ratio of foreign to local judges in Hong Kong, either unaware of the ‘4+1 model’ on the Court of Final Appeal or likewise deeming any non-ethnically Chinese judge ‘foreign’.Footnote ²²⁵ In 2017, Hong Kong's representative on the Standing Committee of the National People's Congress claimed that judges with dual nationality are untrustworthy because they necessarily have allegiance to a foreign sovereign power.Footnote ²²⁶ In the run up to the release of the National Security Law in 2020, some establishment figures called for barring the use of the overseas judges in national security cases (the model used in Macau),Footnote ²²⁷ while others went further and called for a prohibition on the use of any judge at any level with foreign nationality or ‘dual allegiance’ from hearing cases brought under the new law.Footnote ²²⁸

The notion that the overseas judges on the Court of Final Appeal or that the non-ethnically Chinese judges on the lower courts are coming to their decisions in order to surreptitiously advance the interests of foreign powers is a serious attack not only on the character of any individual judge but on the judicial function itself. It implies decisions are reached out of naked political or personal interest rather than a fair evaluation of facts and law. In particular, there is simply no evidence to support a claim that non-ethnically Chinese or otherwise ‘foreign’ judges are unable to fully appreciate China's position within the ‘one country, two systems’ model. Indeed, if we consider Democratic Republic of Congo, there it was the overseas member who joined two of his local colleagues to form the majority arguing that Hong Kong could not adopt a doctrine of state immunity that differed from that adopted by the PRC and that they were obliged to seek an Interpretation from the Standing Committee on the matter before coming to a final conclusion.Footnote ²²⁹ Of course, Justice Mason was not subject to any criticism for having reached that conclusion, despite being Australian – as I have suggested, critiques of judges in Hong Kong that focus on national origin are typically made for partisan rather than principled reasons.

Increasing Opposition to the Role of the Independent Judiciary

This increase in opposition to erstwhile overseas judges should be understood not simply as a question of ongoing decolonization, but as part of a challenge to the role of the Hong Kong judiciary under the ‘one country, two systems’ model. Over the same five year period in which the prominence of the overseas judges has been reduced most sharply, there have been a series of indicators that suggest desire on the part of the Central Authorities to reign in the autonomy of Hong Kong's judicial system, reflecting the fears that animated the JLG into introducing the ‘4+1 model’ in the first place. This is especially the case where it may touch on points on issues that Beijing sees as connected to its sovereignty, national security, and territorial integrity – what it calls its ‘red lines’.

In 2014, the State Council issued a ‘White Paper’ that it said was an attempt to clarify the meaning of certain elements of the ‘one country, two systems’ model.Footnote ²³⁰ Issued in a period of tension over electoral reform and after plans for ‘Occupy Central’ had been announced by organizers, the White Paper sought to emphasize that the high degree of autonomy promised to Hong Kong was not ‘full’ autonomy and that the Region still came under the supervision of the Central Authorities. One aspect was particularly notable for court watchers:

Even setting aside the question of how overseas judges could demonstrate patriotism to China, the inclusion of judges as ‘administrators’ whose job is to ‘safeguard’ a range of policy goals is a radically different understanding of the role judges have historically played in Hong Kong. While not legally binding, the White Paper is nonetheless an important marker of the Central Authorities’ views; to the extent it implies that judges must take into account non-legal interests when coming to their conclusions, it suggests a diminishment of the judicial independence promised by the Basic Law.

In 2016, a number of ‘localist’ candidates won election to Legislative Council seats. While taking the oath of office, some of the intentionally misspoke the words in a way that was derogatory to China or held props and flags with anti-China slogans or calls for Hong Kong independence.Footnote ²³² The Government began an action to bar them from taking office on the ground that they had not correctly taken the oath as required by law; Article 104 of the Basic Law states that various officials must swear to uphold the law, but the precise content of this oath and the procedural details is specified in subsidiary legislation.Footnote ²³³ Before the courts could resolve the issue, the Standing Committee issued a formal Interpretation of Article 104 that ensured that the oaths of office the candidates had taken would be found invalid and that they would be granted no opportunity to re-take.Footnote ²³⁴ This Interpretation was duly followed by the local courts and the candidates were barred from office.Footnote ²³⁵ The right of the Standing Committee to make final (and binding) Interpretations of Basic Law provisions is laid out in Article 158 of the Basic Law and is well-accepted.Footnote ²³⁶

However, the Standing Committee chose to issue this particular Interpretation while the local courts were still seized of the matter, serving to sidestep the Hong Kong judiciary in order to assure the result. The Interpretation also served to effectively re-write elements of the subsidiary law rather than merely explain the meaning of a provision of the Basic Law. The rise of ‘localism’ in Hong Kong, of course, is considered to be a serious threat to Chinese sovereignty and territorial integrity. The decision to issue the Interpretation early shows that the Central Authorities are unwilling to trust an independent judiciary to come to the ‘right’ decisions when it perceives the case to be related to a ‘red line’. Though Article 19 of the Basic Law excludes from Hong Kong's independent judicial power matters of ‘acts of state such as defence and foreign affairs’, the procedural requirements of oath-taking surely did not fall within that category. However, the context meant the case tangentially touched on an issue that Beijing considers to be part of the core national interest and this explains the attempt to effectively narrow the scope of Hong Kong's independent judicial power through the pre-emptive issuance of the Interpretation.

In 2017, Hong Kong was finally connected to the PRC's high-speed rail network. This involved the construction of a multi-billion dollar line and a new terminal. Under the ‘one country, two systems’ model, Hong Kong maintains its own customs and immigration regime and thus there are the same kinds of checks and processes at the Hong Kong/mainland border that one would find on an international border. Forcing trains to stop at that border to have all passengers’ passports checked, etceteras, would have greatly increased the overall journey time and so was considered inconsistent with the purpose of connecting Hong Kong to the network. The solution – known as the ‘Co-Location Agreement’ – was to allow mainland-bound passengers to pre-clear Chinese customs in a special area of the Hong Kong terminal. That area would be run and staffed by PRC personnel, under the jurisdiction of China.Footnote ²³⁷ The concept of a pre-clearance zone is not unusual; a number of Canadian airports, for instance, have such zones run by US customs officials that allow passengers to then board flights to US ‘domestic’ terminals with no passport or customs checks upon arrival.

In Canada, US criminal law does not apply in these zones and the Canadian courts have jurisdiction over any relevant matters that occur within them. The US agents exercise limited powers only for the purpose of customs and immigration. In contrast, not only do PRC agents exercise immigration powers within the defined portion of the terminal and on the trains themselves, the entirety of mainland criminal law also applies and the courts of Hong Kong have no jurisdiction whatsoever. Opponents of the Co-Location Agreement said it violated the Basic Law's prohibition on the application of general mainland laws within Hong Kong.Footnote ²³⁸ Supporters of the plan argued however that it was consistent with the ‘one country, two systems’ model on the ground that Hong Kong had voluntarily relinquished control over the relevant area and therefore the Basic Law's prohibition on the application of mainland laws within Hong Kong simply no longer applied to it.Footnote ²³⁹ While there may have been academic disagreement over the fundamental constitutionality of the agreement, the Standing Committee gave its approval in an official ‘Decision’,Footnote ²⁴⁰ thereby removing the jurisdiction of the local courts over the relevant areas. The Central Authorities had no compunction in reducing the scope of local judicial autonomy where it was deemed necessary in the service of an important national goal, in this case a purely economic one.

In 2019, angry with a lower court decision finding a regulation prohibiting the wearing of masks at public demonstrations to be unconstitutional,Footnote ²⁴¹ a spokesperson for the Standing Committee said ‘whether Hong Kong's laws are consistent with the Basic Law can only be judged and decided by the NPCSC. No other authority has the right to make judgments and decisions’, while a spokesperson for the State Council's Hong Kong & Macau Office criticized the ruling as having ‘serious and negative socio-political impact.’Footnote ²⁴² Both statements again suggest deep antipathy on the part of the Central Authorities to the role that an independent and neutral judiciary plays in Hong Kong. If the first statement is to be interpreted as meaning the Central Authorities intend to entirely eliminate the role of the Hong Kong courts in performing judicial review, then that would be radical restructuring of the ‘one country, two systems’ model and inconsistent with more than twenty years of judicial practice. An alternative reading however is that the spokesperson was merely ‘reminding’ the local courts that it is the NPCSC that has the final say on the interpretation of the Basic Law – again, this is uncontroversial and has long been accepted by the Hong Kong courts. Indeed, when the Court of Appeal upheld part of the lower court's finding on the anti-mask law,Footnote ²⁴³ no similar comments were made by official bodies regarding the inability of local courts to perform constitutional review. This suggests the second reading is probably more accurate, but the lack of official reassurance on this point remains troubling.

Beginning in June 2019 there were widespread protests in response to an attempt by the Government to introduce a law that would have permitted criminal suspects to be extradited to the Mainland.Footnote ²⁴⁴ They frequently involved violent clashes between demonstrators and the police and though they had begun in response to the extradition bill, after it was withdrawn the protestors expanded their goals in response to what they saw as an inadequate government response to a range of issues. Some called for increased autonomy for Hong Kong while an increasing number explicitly called for independence. This of course broached one of Beijing's ‘red lines’ and though the protests had subsided due to the COVID-19 pandemic, in mid-2020 the National People's Congress announced it would directly imposeFootnote ²⁴⁵ a national security law on Hong Kong.Footnote ²⁴⁶ Unseen by the public and apparently even Hong Kong's own leader before adoption, it was promulgated and came into force on 30 June 2020.Footnote ²⁴⁷ At the time of writing (July 2020) the law has only just been released so it remains to be seen how it will be work in practice, but it creates four offences against national security and provides for a distinct process for their prosecution when compared to ‘conventional’ criminal offences. Certain ‘complicated’ categories of cases may involve suspects undergoing rendition to the Mainland, where they will be tried under Mainland law before Mainland judges.Footnote ²⁴⁸ While the majority of cases with national security aspects will still be heard within Hong Kong,Footnote ²⁴⁹ they will be heard before a judge from a select group chosen by the Chief Executive,Footnote ²⁵⁰ and in certain circumstances the right to a jury trial will be denied.Footnote ²⁵¹ Whether this select group will include the overseas judges should any local case under the law reach the Court of Final Appeal is unclear. The law forbids the use of any judge who has previously ‘made any statement’ or ‘behaved in any manner’ endangering national security, but does not explicitly speak to the use of the overseas judges on cases heard under the law.Footnote ²⁵²

Speaking before the bill was released, the Secretary of Justice stated she did not believe a ban on the overseas judges hearing cases under the new law was necessary.Footnote ²⁵³ But given the official version of the law was issued only in Chinese, with only an unofficial English translation provided ‘for reference’, it may be that the overseas judges are not considered capable anyway. Though some calls have been made to prevent any judge with dual nationality from hearing national security related cases,Footnote ²⁵⁴ this would present serious practical challenges since many judges in Hong Kong have dual nationality; as noted, only the Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court are barred from obtaining a second passport.Footnote ²⁵⁵ In any event, given the reduced prominence of the overseas judges considered in this article I suspect that (if asked) the Chief Justice would simply not recommend the use of an overseas judge to sit on a panel hearing a national security case.

Taken together, these developments suggest the Central Authorities are deeply sceptical of the role that an independent judiciary plays in Hong Kong, and are willing to take steps necessary to side-line it in cases it deems of critical import to national security or sovereignty. Increasing attacks on overseas (or otherwise ‘foreign’) judges by establishment/pro-Beijing figures should be seen as part of this larger project to reign in the independence of the Court, and thus Hong Kong's judicial autonomy as a whole. As Tam has argued,

Given Hong Kong's political environment, attacks on the legitimacy of the overseas judges are likely to increase in the coming years. If they achieve traction, those attacks may not only lead to calls for elimination of the role of the overseas judges on the Court but may damage the perception of judicial independence more broadly by creating the perception that its decisions are ideologically driven in simplistic ways.

It is true that judging is not simply a purely neutral, objective exercise; it is almost inevitably flawed and biased in systemic ways. Like many others, Hong Kong's legal system helps preserve and replicate existing structures of power in a society. But this is not the result of malign intent on the part of judges with improper motivations. Judges in Hong Kong – overseas or not – are products of their upbringing, ideology, life experience, and so on. They are not perfectly neutral judicial robots and it is right that both they and the system they represent are subject to critique. However, that common law judges tend to be drawn from an elite segment of society and are steeped in certain ideologies is not the same as saying they inevitably issue decisions in accordance with the policy preferences of the ruling party.Footnote ²⁵⁷ That there is systemic inequity in the application of criminal justice in the common law world does not make it normatively equivalent to a justice system that obtains a 99.93 per cent conviction rate.Footnote ²⁵⁸

Attempts to de-legitimize decision-making by judges based on their national origin serve a narrative says that non-Chinese judges are inherently unacceptable in Hong Kong not because they are an uncomfortable colonial echo or suggest a need for supervision where none is necessary, but because they must be serving a separate political master when reaching their decisions. It is then a short road from saying foreign judges in particular are unacceptable because they are necessarily biased to arguing that all judges – regardless of origin – serve only particular political interests when coming to decisions and so the concept of judicial independence is entirely meaningless. This narrative says that common law judges do arrive at their results purely out of political considerations or calculations; common law judging is just an ideological exercise and the idea of judicial independence is nothing more than a dangerous myth that serves a particular class interest. The courts should therefore strive to serve state (Party) goals rather than serve as independent check because the Party represents the interests of the people – and this, of course, is precisely what the 2014 White Paper implies.

In this way, critiques of the overseas judges in Hong Kong cloaked in facially valid concerns about legitimacy ultimately serve a broader project of reducing the scope or strength of Hong Kong's judicial autonomy by depriving it of public acceptance and support.