THE ADVOCATE V O L . 8 0 P A R T 2 M A R C H 2 0 2 2 169
ENTRE NOUS
We write at a time of renewed controversy over former chief
justice Beverley McLachlin’s continued role as a non-
permanent judge (“NPJ”) of the Hong Kong Court of Final
Appeal (“HKCFA”). Whether or not McLachlin remains a
judge of the HKCFA by the time you read this, the controversy focuses
attention on the more general issue of when judges should sit on the domestic
courts of countries other than their own.
Hong Kong is one of a surprising number of jurisdictions (Fiji, Papua
New Guinea and Liechtenstein among them) that retain foreign judges on
certain of their courts. In Hong Kong’s case, the present arrangement is
rooted in the Basic Law for the Hong Kong Special Administrative Region of
the People’s Republic of China (the “Basic Law”), which came into effect on
July 1, 1997. Article 82 provides that “the power of final adjudication of the
Hong Kong Special Administrative Region shall be vested in the Court of
Final Appeal of the Region, which may as required invite judges from other
common law jurisdictions to sit on the Court of Final Appeal”.
The HKCFA Ordinance provides for the appointment of permanent
judges and up to 30 NPJs; the latter can be either from Hong Kong or from
other common law jurisdictions. A person is eligible to be appointed as a
judge from another common law jurisdiction (i.e., as an “overseas NPJ”) if
they are “a judge or retired judge of a court of unlimited jurisdiction in
either civil or criminal matters in another common law jurisdiction”, are
“ordinarily resident outside Hong Kong” and have “never been a judge of
the High Court, a District Judge or a permanent magistrate, in Hong Kong”.
NPJs are appointed for three-year terms, which may be extended. Generally,
appeals to the HKCFA are heard and determined by panels of five: the
chief justice or permanent judge designated to sit in the chief justice’s place,
three permanent judges and one NPJ.
Overseas NPJs have usually come from the United Kingdom, Australia
and New Zealand. McLachlin was the first Canadian (and one of the first