Former High Court justice Pat Keane takes up a spot on Hong Kong’s final court … British judges bail out … Rule of law under constant assault … Overseas judges excluded from sensitive security cases … Political meddling with the HK legal profession … Lawyers flee … Max Shanahan reports 

Keane will join Messrs Gleeson, Gummow and French on the bench, adding to an Australian cohort reduced by the 2020 resignation of Jim Spigelman for reasons “related to the content of the national security legislation.”

The announcement of the appointment came as Beijing’s National Peoples’ Congress Standing Committee gave Hong Kong the power to bar foreign lawyers from participating in national security cases. 

The Standing Committee’s interpretation also gives Hong Kong’s chief executive the power to deem – without judicial review – whether any case concerns national security. 

As Hong Kong continues to slide further into authoritarian territory, and its much-vaunted judicial independence is hit by strong headwinds, the wisdom of taking up such an appointment has been questioned.

Kevin Yam, a former Hong Kong law firm partner and pro-democracy activist, told Justinian that, while respecting Keane’s motives, the appointment was “allowing the Hong Kong authoritarian regime to take a victory lap”. 

Indeed, Chief Executive John Lee Ka-chiu described Keane as “a judge of eminent standing and reputation” and said the appointment “manifests the exercise of judicial power independently by the judiciary in the Hong Kong SAR”.

For his part, Keane sought to justify the appointment in an interview with The Guardian, saying: 

“… given how successful the Court has been in upholding the rule of law, one should be very slow indeed to decline the opportunity to serve on such a successful court.” 

It was better to play a role in attempting to safeguard judicial independence, he continued, rather than “vacating the field”. 

Keane further said that people who criticise such appointments have “a view of politics that treats the institution, the HKCFA, as if it were a political branch of government”.  

Indeed, research by Chinese University of Hong Kong’s Stuart Hargreaves shows that, since 2010, “the overseas members no longer appear to write individual opinions when the matter relates to human rights protections under the Basic Law or the relationship between Hong Kong and the Central Authorities”. 

Nor, indeed, do overseas judges identifiably pen judgments on issues pertaining to “critical public law questions including the boundaries of human rights provisions”. 

Hargreaves identifies this lack, and the concomitant rise of joint judgments, as “responses to the tightening political climate in Hong Kong and associated threats to judicial independence”. 

Furthermore, Article 44 of the National Security Law grants the chief executive the power to designate certain judges to handle cases concerning national security. 

The chief executive retains the right to deem cases as such, and the designation is non-judiciable. Currently, no overseas judges are on that list. Likewise, judges who have “made any statement” or “behaved in any manner” which “endangers national security” are not eligible to sit on national security cases. 

While the HKCFA itself might be said to retain its quality and at least the vestige of independence, the same cannot be said for Hong Kong’s legal system at large. 

Judicial appointments – including for the Chief Justice of the HKCFA – have been blocked on political grounds, and Yam reports that it has become increasingly difficult for the Hong Kong judiciary to recruit younger judges. 

The local Bar Association and Law Society have faced threats over activism, while the former chairman of the Bar Association left the city in March after being questioned over alleged breaches of the national security law. 

Michael Vidler, a prominent local human rights lawyer, left the country after a campaign of “state-sponsored intimidation and harassment,” while an exodus of lawyers form Hong Kong continues apace. 

Keane’s insistence that the HKCFA can be treated separately from Hong Kong’s political issues is not shared by the UKSC’s Lord Reed and Lord Hodge, who appeared before the House of Lords after their resignation from the Court of Final Appeal.

In contrast to Keane’s discrete view, Reed told the Lords: 

“I insisted that we have a criterion that was not to do with the courts but was to do with society more generally … The courts themselves were continuing to operate in accordance with rule of law values, although they were under pressure. It has to be said that one cannot completely divorce what was going on in the courts from what was going on outside the courts …”

Keane has also been conscripted by AG Mark Dreyfus to lead an expert working group on the creation of a new administrative appeals body.