Will Hong Kong join Singapore, Malaysia in ditching foreign judges after British law lords’ exit?

Foreign judges have long provided an authoritative backstop to Hong Kong’s judiciary, but their relevance has waned in the 25 years since the handover

One analyst said it was now a question of ‘when, rather than whether’ the city follows other former British colonies in removing foreign judicial influence

Reading Time:8 minutes

Hong Kong’s Court of Final Appeal building. Photo: Getty Images/iStockphoto

Published: 8:00am, 23 Apr 2022Updated: 1:44pm, 23 Apr 2022

Hong Kong’s legal fraternity was left with much to reflect on when Britain withdrew its last two serving judges from the city’s highest court last month, citing concerns over the Beijing-imposed national security law and its implications for political freedom.

The resignation of the UK Supreme Court’s president and vice-president from their concurrent positions on Hong Kong’s apex court closed the chapter on a long-standing arrangement often viewed as a strong endorsement of the city’s rule of law.

In his departing statement, Supreme Court president Robert Reed said he and his deputy Patrick Hodge “cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression”.

Robert Reed, president of Britain’s Supreme Court, resigned from Hong Kong’s apex court last month. Photo: AFP

“The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong’s leading court, and would risk legitimising oppression,” Britain’s Foreign Secretary Liz Truss said later, adding: “We have seen a systematic erosion of liberty and democracy in Hong Kong.”

The justices’ exit – described by Hong Kong officials as politically driven – shrank the pool of British judges on the Court of Final Appeal to six, ostensibly posing a threat to the city’s reputation for having an independent judiciary.

At the same time, it called into question the role foreign judges play in the city and whether they were still needed, given the judiciary’s advances in the 25 years since the end of colonial rule.

After all, Hong Kong is one of the few former British colonies that has retained such a mechanism – having British judges sit on its top court – with other Commonwealth jurisdictions, including Australia, Canada, Malaysia and Singapore, ditching similar systems as early as seven decades ago.