Carrie Lam’s office says Australian James Spigelman’s resignation as a non-permanent Court of Final Appeal judge had nothing to do with the new rule-of-law-wrecking National Security regime. Yet, ABC reports, he said it did.
For a hint at who’s telling the truth, we can (courtesy of here) look at a HK Lawyer interview with Spigelman from a few years ago. He was born in Poland in 1946 into a family that had narrowly escaped death at the hands of the Nazis, and his interests include oppressed peoples and the importance of unbiased and open justice.
Around a dozen Brits, Australians and others from overseas common-law jurisdictions are among the non-permanent CFA judges available to supplement the three permanent ones including the Chief Justice. They are mostly retirees, and in practice their services are not often needed – when did you last hear of Baroness Hale of the UK or Canada’s Beverly McLachlin hearing cases here? The overseas judges’ occasional appearances might have helped bolster the CFA, but their role since 1997 has been largely ornamental, lending credibility to official claims of rule of law and judicial independence.
The Hong Kong government has traditionally valued this mainly passive contribution. Local rule-of-law supporters have taken comfort in the thought that the foreign judges are there waiting in the wings (and implicitly able to quit rather than endorse a Mainland-style justice system). It’s hard to imagine Beijing itself liking the arrangement, though it maintains silence on the subject. Certainly, the symbolism is offensive to patriotic pro-Beijing types who find it humiliating to have non-Chinese faces (including many locally based ones) in the judiciary.
This is one of many areas where our local officials awkwardly try to cling to the city’s old cosmopolitan status and image, while increasingly embracing CCP-style positions on (say) evil foreign influences interfering in Hong Kong. Their reaction to Justice Spigelman’s departure comprises shrill recitals of slogans, suggesting that they are giving up trying to be convincing about this particular issue.
In effect, the authorities seem to be moving from casting the foreign judges as confidence/credibility-boosters to more bluntly co-opting and presenting them CCP-style as useful idiots – like gullible Western think-tankers, university administrators and provincial politicians.
Assuming the eminent judges become aware of this (and our Beijing-compliant courts start sentencing more prominent prisoners of conscience), more will no doubt leave, creating another minor flurry of dust in the crumbling remains of One Country Two Systems.
I would dispute your assertion that the presence of foreign judges in the CFA is largely ornamental. True, some of them on the list do not come very often or feature much in judgements when they do, but others make a valuable contribution to judgments and the rule of law generally. Dare I say it but the CFA is one of the success stories of the post 1997 constitutional framework, though its days of being sprinkled with foreign judges and being independent are no doubt numbered.
Interest is definitely dwindling – maybe the Ukland’s National Trust could be persuaded to pitch in and keep the project afloat. In the meantime, perhaps I can feign a bit of indignantism: that Carrie Lam woman is first class rotter.
Yes, the foreign NPJs have written many judgments for the majority and some of the most important ones at that. They’ve had great influence.