外籍法官

今天明報報導了Constitutional Studies Journal訪問前終審法院非常任法官何熙怡女男爵(Brenda Majorie Hale of Richmond): 海外法官何熙怡指國安法凌駕基本法 港府批不符實。該法律學術期刋部份文章提供中、英、法及西班牙文版本, 本篇就有四種語文版, 我看了中、英文版, 現把英、中文貼在下面讓讀者判斷, 無需靠二手資料來猜測。訪問是本年2月3日進行的, 6月30日最新一期刊出。期刊的3位主編之一是台灣憲法教授張文貞, 本文的中文版也由她負責校對, 全文共11條問題, 「香港外藉法官」的問題並非主菜。不過, 用foreign judges也有欠準確性的問題, 這些都是海外法官, 外籍自不待言, 但終審法院的本地常任和非常任法官也有外籍的。Malagodi博士發問的問題應該把foreign judges改為 overseas non-permanet judges。

10. Foreign Judges in Hong Kong 

Mara Malagodi: When you were appointed as a foreign judge to Hong Kong’s Court of Final Appeal in July 2018, how did you anticipate your role as a judge would differ in Hong Kong given the different historical and political context? 

Baroness Hale: I actually never sat in Hong Kong. When I was appointed in July 2018, I said I would not sit until I retired in 2020 as I needed to devote my full attention to the Supreme Court of the United Kingdom. The chief justice of Hong Kong was perfectly happy with that. So I was due to sit for the first time in February 2020. That was before the National Security Law: there was the Basic Law, a tradition of an independent judiciary in Hong Kong, and the rule of law seemed reasonably secure. A case I was going to sit on was absolutely perfect for me. It was a case in which the prison authority had insisted that a male prisoner cut his hair but didn’t insist that the female prisoners cut their hair. Of course there is a certain political significance to cutting hair in that context. So the prisoner was alleging that it was discrimination. Clearly it was discrimination, the only question was whether they could think of a good reason for it. That would have been a perfect case for me, just up my street, the sort of thing I would deal with here, the considerations being very similar. There would be no reasons that it would be materially different from sitting here, and of course there was a very long common law tradition in Hong Kong. 

Mara Malagodi: What was on your mind when you decided not to seek reappointment。 in June 2021? 

Baroness Hale: Then came covid so I could not go, then came the National Security Law and I thought now it is the time quietly to bow out. In 2021, they did offer to reappoint me. I did not want to suggest that the Hong Kong judiciary was fatally compromised, because it was not. I did not want to suggest that I did not want to be part of that system. I certainly did not want any announcements made, so I decided not to seek reappointment and we put it down to personal reasons. 

I am now all the more convinced that it was the right thing to do because, as things have developed, the National Security Law has taken over the Basic Law. Even though the foreign judges are not likely to be asked to sit on national security cases, they are being asked to give respectability to a system that despite the best efforts, I’m sure, of people I know in Hong Kong . . . they are not going to succeed. The case where Tim Owen was not allowed to represent Jimmy Lai—probably it wouldn’t have done any good any way—but nevertheless that was a case of Beijing’s interference with a decision in which the Hong Kong court had said yes he could act, and Beijing said no. So you don’t want to be part of a system like that, you just don’t. I feel very sorry for them, very sorry.

我以前不同博文也發表過類似觀點, 所以現在看到何熙怡的講法一點也不會訝異。海外法官其實就只有終審法院的非常任法官, 由高峯期18個跌剩現時6個, 基本上是《國安法》訂立之後的事。The fact speaks for itself. 如果不稀罕這些殿堂級的普通法法律專家可對香港的貢獻, 那就不要也罷, 或者找另類普通法律人何君堯, 梁美芬等去試試填補空缺, 不要嫌他們太普通, 說不定他們會賺得很多鼓掌。

我對社民連的解散沒有特別感覺, 我一向對這組織沒有好感, 對他們的存在也沒有惡感, 社會需要不同聲音的, 有人抬花轎, 也有人抬棺材。政府強調香港人有結社自由, 只要不危害國家安全就可以了, 這一點我真的相信, 證據確鑿。香港十幾萬黑社都沒有因為不可抗力的因素而解散, 他們的大佬都沒被召去照肺叫他們自行解散, 可能他們的存在價值比那些民主派呀、社會搞事派呀更大, 所以社團可以搞宴會, 批評政府的就找不到場地, 可能黑社會經營書屋才不會遭到不同政府部門上門巡查。社會新常態真的使吾等舊時人適應不到, 所以我都很少回去了。