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Council). Sometimes foreign judges are appointed to the courts of a particular
jurisdiction for specific knowledge: Justice Fok pointed to the benefit that
the HKCFA derived from certain overseas NPJs’ knowledge of specialized
areas of the law, and the fact they contributed their direct knowledge of legal
systems from which Hong Kong drew various precedents.11
If overseas NPJs do have particular insight to contribute, this may be a
further reason for them to remain on the ground, and for them to (in face
of a threat to judicial independence) make an extra effort to work within the
system they were originally brought in to improve. Applying the Benefit of
Foreign Experience/Knowledge Approach to the present circumstances
assumes, however, that there is room for overseas NPJs to play a substantive
role (either at all or more so than local colleagues), which may be doubtful.
Hong Kong judges are products of a substantial and sophisticated legal profession,
and their ability to recognize and correct threats to judicial independence—
where they have the opportunity to do so—may be no less than
that of foreign counterparts. It also seems that, as a practical matter, overseas
NPJs are not called upon to sit on many cases (when reappointed in
the summer of 2021, McLachlin was not scheduled to hear her next cases
until January 2022) or cases in which they could make much systemic difference.
12 Further, even if appointed to hear a particular case, they would
be only one voice on a five-judge panel.
A third way of characterizing the role of overseas NPJs is less as adjudicators
of disputes within the system than as adjudicators of the system. At
least two judges of the HKCFA (one permanent and one an overseas NPJ)
have referred to overseas NPJs as “canaries in the coalmine”—the “Canaryin
the-Coalmine Approach”.13 From this perspective, overseas NPJs test out
and demonstrate the conditions in the mine (the judicial system): an overseas
NPJ’s decision to join or remain on the HKCFA reflects their view of the
merits and independence of that court. At least a key part of an overseas
NPJ’s function is seen as being to monitor and decide whether the HKCFA
meets their high standards, and publicly issue judgment by resigning or not
accepting (re-)appointment if those standards have not been met. Of
course, the effect of any judge (whether local or foreign) resigning may be
to communicate to observers the judge’s unfavourable view of the system
in which they could no longer serve, but in the case of an overseas NPJ, this
seems at least in part to be their very purpose.
Some jurisdictions (who believe they can attract foreign appointees and
convince them to stay) embrace foreign judges specifically to market the
merit of their judicial system. This is certainly so in the case of Hong Kong
(and China). The fact that a jurisdiction wishes to use its appointment of