THE ADVOCATE V O L . 8 0 P A R T 2 M A R C H 2 0 2 2 171
est court can only be used to prop up an illegitimate legal system by a government
that serves as a puppetry to an authoritarian regime”.4
McLachlin has not, to date, resigned, and we too are confident that she
does not need our help in deciding whether to do so. However, the issues
raised are sufficiently important that we do go as far as to set out below
some considerations that a judge sitting on a foreign court may wish to take
into account in determining whether to remain on it. This said, only a sitting
judge may ever truly know whether these considerations arise on the
facts and are applicable in their particular circumstances.
It does not require too much imagination to say that the appropriate
course of action for a given judge may turn in part on how they see their
judicial role. There are at least three possible approaches in this regard.
The first approach—which, in the context of the HKCFA, we call the
“Hong Kong Judge Approach”—is to focus on the fact that an overseas NPJ
becomes, by virtue of their appointment, a Hong Kong judge bound to the
same judicial oath as other judges of the HKCFA. While clearly there are reasons
driving a jurisdiction to take the step of appointing a foreign judge
rather than a resident (and it is those reasons5 that inform the second and
third approaches we outline below), the upshot is that, as the HKCFA’s former
chief justice Geoffrey Ma Tao-li (who invited McLachlin to sit on that
court) noted, “non-permanent judges are not in any sense foreign judges.
When they sit in Hong Kong, they are Hong Kong judges”.6 On their appointment,
they take an oath to “uphold the Basic Law … , bear allegiance to the
Hong Kong Special Administrative Region of the People’s Republic of China,
serve the Hong Kong Special Administrative Region conscientiously, dutifully,
in full accordance with the law, honestly and with integrity, safeguard
the law and administer justice without fear or favour, self-interest or deceit”.7
The fact that overseas NPJs become Hong Kong judges with duties to the
system they have agreed to join suggests they should be no less committed
to it (and the possibility of working within it) than their local colleagues. An
overseas NPJ should be reluctant to break ranks if local colleagues continue
to labour within that system, do so willingly (rather than because, as residents,
they are understandably more swayed than a foreign judge need be
by the risk that resignation will have negative physical, economic and reputational
effects on them and their families) and do so in the belief they can
continue to serve independently.
Adopting the Hong Kong Judge Approach also means it would be troubling
for an overseas NPJ’s resignation to be driven by the HKCFA’s perceived
departure from a foreign, rather than local, understanding of how
that court should function. The role of an overseas NPJ is to apply Hong