Former Australian high court judge Patrick Keane is set to be appointed to the CFA as a non-permanent judge (“NPJ”). This appointment, expected to be approved by Hong Kong’s legislature, has been utilised by Hong Kong’s chief executive to claim “a high degree of confidence” in Hong Kong’s legal system, thus providing a veneer of undeserved legitimacy.
Keane claims to have weighed up the role carefully and believes that overseas judges should not “vacate the field”, and that one should not decline to do good work because of an apprehension that one might be asked to do bad work. However, we believe that the ability of NPJs to “do good work” is severely limited. Overseas NPJs seldom, if ever, participate in the CFA Appeal Committee, which often refuses leave in politically controversial cases involving fundamental rights. NPJs participate in a limited number of substantive decisions, and where they have, the Hong Kong government has exploited these for further repression. As reported in our previous editions, two top British judges resigned from the CFA due to concerns about the NSL and to avoid “appearing to endorse an administration which has departed from the values of political freedom and freedom of expression”. Australian judge James Spigelman also resigned from the CFA due to the content of the NSL. Baroness Hale, former president of the UK supreme court, also declined to renew her role on the CFA and suggested that overseas judges who stay would have to “apply and enforce unacceptable laws”. We remain of the view that the principled course of action would be for overseas judges to decline appointments to act as NPJs, and for sitting NPJs to resign.
(This article originally appeared as an item in the Jan-Feb 2023 edition of our newsletter.)