Legal expert | Proposal to ban non-Chinese judges on ‘national security matters’ may influence HK

The measure announced by the Macau government to amend a law aiming to prevent foreign judges for ruling on “matters of national security,” might “dent confidence” in Hong Kong’s judicial system, sending a “very wrong message” if the proposal goes ahead, Simon Young, a Hong Kong legal scholar told the South China Morning Post (SCMP).

The proposal will be presented before Hong Kong lawmakers as early as next month, but it has already raised criticism from local senior legal professionals such as the president of the Macau Lawyers Association (AAM), Neto Valente, who described it as “unconstitutional.’’ Added criticism from across the Pearl River now comes with Young expressing concerns about the future of Hong Kong’s foreign judges, especially after two of the small but significant cadre were subjected to verbal attacks over rulings they recently made in high-profile cases.

Young, an associate dean (for Research) at the University of Hong Kong’s faculty of law, said to SCMP, “it is unclear why Macau is taking the step at this time,” warning, “this is a worrying development. Perhaps the real reason is a fallacious belief that Chinese judges will be more patriotic and more likely rule in a way that protects national security.”
However the legal scholar also noted, “I’m not aware of any rational or empirical basis to support such a belief. In Hong Kong, when foreign judges are appointed to the Court of Final Appeal they are first and foremost a ‘Hong Kong judge’, not a foreign judge.”

Young also pointed out that “any move to interfere with the chief justice’s (or any other court leader’s) discretion to empanel the most suitable judges to hear cases could amount to an interference with the exercise of independent judicial power and would thus violate Article 83 of the Macau Basic Law.” He noted that if this were to occur in Hong Kong, it would violate Article 85 of the Hong Kong Basic Law. Young further added “any move towards excluding foreign judges from hearing cases, which they would otherwise be entitled to hear, may lead people to think that their government does not trust foreign judges. This would be a very wrong message to send and would dent confidence in one of the most successful aspects of the Hong Kong and Macau’s judiciaries since their respective handovers.”
At the beginning of the month, the Secretary for Administration and Justice, Sonia Chan, informed the press about the proposal to enforce this measure, insisting that the aim was not to discriminate against non-Chinese judges but to make the operations of the judiciary smoother, and to accelerate trial proceedings.