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Former Chief Justice Andrew Li at his office in Central. Photo: Nora Tam

Exclusive interview: Hong Kong’s first chief justice Andrew Li on whether all judges in city should be Chinese nationals ahead of 2047

  • City needs to be prepared should fewer non-permanent, overseas judges be available to serve in next 10 years, he says
  • Li also calls on younger people to think beyond just their rights, arguing they should also focus on their responsibilities to the community and country

Hong Kong’s first chief justice after the end of British rule expects the question of whether all judges should be Chinese citizens to emerge as among the issues to be debated in the run-up to 2047.

Such matters would surface well before that year, Andrew Li Kwok-nang said, referring to the 50 year mark of the city’s handover of sovereignty from Britain to China amid a promise that its way of life would be preserved under the “one country, two systems” governing model.

In an exclusive interview with the Post to mark the 25th anniversary of the return to Chinese rule, Andrew Li Kwok-nang, who presided over the judiciary from 1997 to 2010, said the rule of law and judicial independence had been maintained in the past quarter century.

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“I hope the one country, two systems can continue. I am cautiously optimistic that it will continue in the coming 25 years and hopefully beyond 2047,” he said.

But the city’s former top judge said the future of one country, two systems would have to be settled 10 to 15 years ahead of 2047.

Li, 73, said that despite assurances from senior Beijing officials that the one country, two systems principle would not change after 2047, “sooner or later” Hongkongers would demand “something more concrete” about arrangements for after that date.

Hong Kong is in the midst of preparing for the silver jubilee of the handover, the halfway mark of Beijing’s pledge to uphold the city’s freedoms for at least 50 years.

The Basic Law, Hong Kong’s mini-constitution, states that only two judges, the chief justice and the chief judge of the High Court are required to be “Chinese citizens who are permanent residents of [Hong Kong] with no right of abode in any foreign country”.

Former Chief Justice Andrew Li. Photo: Nora Tam

“This provision recognises the historic circumstances of Hong Kong in 1997 when about 50 per cent of the judges were expatriates,” Li said

Li added that many local judges acquired foreign passports in the 1980s and the 1990s.

But now, he noted, there were now only about 6 per cent of judges in Hong Kong who were expatriates.

“Over time, with the retirement of expatriate judges and local judges who have foreign passports, we believe that many judges, especially younger ones, do not have foreign passports,” he said. “By 2047, it is likely to turn out that most judges do not have foreign passports.”

Hong Kong should still look overseas to fill the gaps left by UK judges

“The question remains: assuming the continuation of one country, two systems, whether the nationality requirement for judges in the Basic Law after 2047 should be extended to cover all judges or most judges,” Li said.

He said there were “sound arguments” for extension.

“This requirement could be regarded as a reflection of Chinese sovereignty. Further, it could be regarded as a demonstration of the commitment of judges to the community,” he said.

“But Hong Kong being an international financial centre, it may be beneficial to have a relatively small number of expatriate judges serving, especially in commercial cases,” Li said.

He pointed to the fact that Singapore and some countries in the Middle East had used part-time foreign judges for commercial cases.

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Li also stressed that judicial independence had been maintained in the past 25 years.

“I can state that during this period, there has been no instance of interference with how a judge should adjudicate and there has been no instance of any interference with the process of judicial appointment,” he said.

He said he was “cautiously optimistic” that the one country, two systems formula, under which Hong Kong enjoys certain freedoms not allowed on mainland China, would endure beyond 2047.

“The courts will continue to discharge their role under the Basic Law, that is to adjudicate disputes, including those involving the government, independently and without fear or favour,” he said.

In the aftermath of anti-government protests in 2019, Beijing imposed the national security law on Hong Kong in June the following year, banning acts of subversion, secession, terrorism and collusion with foreign forces.

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There had been concerns raised in Hong Kong about its impact not only on freedoms enjoyed by residents, but also the workings of the city’s courts.

Li said all jurisdictions had laws to protect their national security.

“Having such a law is generally consistent with the rule of law. Under the rule of law in Hong Kong, judges have the duty of judging national security cases fairly and impartially on the basis and only on the basis of the evidence and the law,” he said.

“They would deal with these cases independently without any interference. The defendants are presumed innocent until proven guilty. And guilt must be established beyond any reasonable doubt.”

In March, Britain’s Supreme Court withdrew two serving top judges, Lords Robert Reed and Patrick Hodge, from Hong Kong’s Court of Final Appeal, citing concerns over the national security legislation and ending a long-standing arrangement that stood as a strong endorsement of the city’s rule of law.

Hong Kong ex-chief justice calls on city to prepare for fewer overseas judges

Li said it was important to note that in announcing their withdrawal from Hong Kong’s top court, Lord Reed, the UK Supreme Court president, acknowledged that “the courts in Hong Kong continue to be internationally respected for their commitment to the rule of law”.

Describing the decision as “regrettable”, Li said he was concerned that in future Hong Kong might find it difficult to recruit non-permanent overseas judges.

“We still have a number of retired judges on the panel, but in about 10 years’ time, we have to be prepared for if the level of participation of the non-permanent overseas judges is not the same as before,” he said. “However, I’m confident this would not affect the quality of the Court of Final Appeal since we have an increasing pool of talent in our profession and the judiciary.”

Li said young people must understand and accept that the city was a part of China, and that “one country” was the foundation of the “two systems”.

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“Young people must understand that they should not only focus on rights. They should recognise and pay more attention to their responsibilities, responsibilities to the country and to our community in Hong Kong,” he said.

“Instilling in the young a sense of responsibility is of great importance to the well-being of society. The young must be given hope that Hong Kong remains the best place for them to live and work, and to bring up their families.

“I hope that significant and swift progress will be made in dealing with long-standing livelihood issues, such as affordable housing.”

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