Foreign influence 'significant' in local rights casesAlbert Wong
South China Morning Post
April 3, 2009
Foreign judges and lawyers have exerted a "significant international influence" in human rights cases heard by the Court of Final Appeal in the past 10 years, a study by a University of Hong Kong legal academic has found.
As well as English counsel flying in to argue almost a third of such cases, all 42 heard in the period had a sitting judge from either Britain or Australia, the study by Simon Young, director of the university's Centre for Comparative and Public Law, discloses.
Particular influence has been exercised, Professor Young notes, by former Australian High Court chief justice Sir Anthony Mason, one of five foreign judges who sit as non-permanent judges of the highest court.
With a tally of 11, Sir Anthony has written or co-authored more rights judgments than the other non-permanent judges combined and more than any of the permanent judges except Chief Justice Andrew Li Kwok-nang, with 17.
Meanwhile, 29 per cent of such cases have involved English Queen's Counsel representing at least one of the parties.
"Like the phenomenon of English counsel flying into Hong Kong to argue cases in the court, the presence of overseas [non-permanent judges] brings significant international influence to the court's jurisprudence," Professor Young says.
At the same time he notes a "curious statistic" that not one of the local non-permanent judges has written a judgment, although they were involved in a third of the cases and would have written many rights judgments before and after 1997 as members of the Court of Appeal.
Professor Young's study - the first quantitative analysis of how the court has handled constitutional rights issues since the first one, a right-of-abode case, in 1999 - will be delivered at the university this afternoon.
As well as noting the influence of foreign judges, it also indicates a systematic effort by the chief justice to set down a coherent and consistent set of constitutional principles.
Of the 42 cases, 18 were decided by the same set of judges, enabling "collective expertise and experience in the subject matter" to develop, the paper concludes.
"It's important for a court to have consistency and a coherent set of constitutional principles," Professor Young said in an interview with the South China Morning Post.
He said Chief Justice Li appeared to be adhering to a system to ensure legal certainty for a court still in its relative infancy.
"I think the chief justice is very mindful of this," said Professor Young, who noted that judges seemed to be encouraged to "sign on" to judgments rather than write their own, which might cause confusion as to the fundamental principle underlying a decision.
While this might "lose some diversity", it also brought about "legal certainty" - doubly important for a relatively new court, he said.
Dissent is also rare, although final appeal judge Kemal Bokhary has written opposing judgments five times, and Roberto Ribeiro once.
"The chief justice played a strong leadership role in achieving consensus and authoring judgments in the rights cases," Professor Young said.
Final appeal cases are required to have at least one non-permanent judge, who is usually from overseas - a mechanism designed to keep the Hong Kong courts in touch with other common-law jurisdictions.
Hong Kong will be the first non-Commonwealth territory to host the annual Commonwealth law conference, which begins on Sunday, lasting four days.
South China Morning Post
April 3, 2009
Foreign judges and lawyers have exerted a "significant international influence" in human rights cases heard by the Court of Final Appeal in the past 10 years, a study by a University of Hong Kong legal academic has found.
As well as English counsel flying in to argue almost a third of such cases, all 42 heard in the period had a sitting judge from either Britain or Australia, the study by Simon Young, director of the university's Centre for Comparative and Public Law, discloses.
Particular influence has been exercised, Professor Young notes, by former Australian High Court chief justice Sir Anthony Mason, one of five foreign judges who sit as non-permanent judges of the highest court.
With a tally of 11, Sir Anthony has written or co-authored more rights judgments than the other non-permanent judges combined and more than any of the permanent judges except Chief Justice Andrew Li Kwok-nang, with 17.
Meanwhile, 29 per cent of such cases have involved English Queen's Counsel representing at least one of the parties.
"Like the phenomenon of English counsel flying into Hong Kong to argue cases in the court, the presence of overseas [non-permanent judges] brings significant international influence to the court's jurisprudence," Professor Young says.
At the same time he notes a "curious statistic" that not one of the local non-permanent judges has written a judgment, although they were involved in a third of the cases and would have written many rights judgments before and after 1997 as members of the Court of Appeal.
Professor Young's study - the first quantitative analysis of how the court has handled constitutional rights issues since the first one, a right-of-abode case, in 1999 - will be delivered at the university this afternoon.
As well as noting the influence of foreign judges, it also indicates a systematic effort by the chief justice to set down a coherent and consistent set of constitutional principles.
Of the 42 cases, 18 were decided by the same set of judges, enabling "collective expertise and experience in the subject matter" to develop, the paper concludes.
"It's important for a court to have consistency and a coherent set of constitutional principles," Professor Young said in an interview with the South China Morning Post.
He said Chief Justice Li appeared to be adhering to a system to ensure legal certainty for a court still in its relative infancy.
"I think the chief justice is very mindful of this," said Professor Young, who noted that judges seemed to be encouraged to "sign on" to judgments rather than write their own, which might cause confusion as to the fundamental principle underlying a decision.
While this might "lose some diversity", it also brought about "legal certainty" - doubly important for a relatively new court, he said.
Dissent is also rare, although final appeal judge Kemal Bokhary has written opposing judgments five times, and Roberto Ribeiro once.
"The chief justice played a strong leadership role in achieving consensus and authoring judgments in the rights cases," Professor Young said.
Final appeal cases are required to have at least one non-permanent judge, who is usually from overseas - a mechanism designed to keep the Hong Kong courts in touch with other common-law jurisdictions.
Hong Kong will be the first non-Commonwealth territory to host the annual Commonwealth law conference, which begins on Sunday, lasting four days.
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