The former Australian high court judge Patrick Keane has dismissed criticism of his appointment to a top Hong Kong court, saying he weighed up the role carefully but believed foreign judges should not “vacate the field”.
Legal figures have noted Keane’s eminent record, but some raised concerns about the message his appointment sends in light of Beijing’s increasing crackdown on rights and freedoms in Hong Kong.
Kevin Yam, a Hong Kong lawyer and democracy activist now living in Australia, said foreign judges taking up appointments in the city could be inadvertently “lending credibility to an authoritarian regime”.
In an interview with Guardian Australia on Tuesday, Keane confirmed he did not consult the Australian government prior to accepting the appointment, because such positions are filled in a private capacity.
He acknowledged that several senior British and Australian judges – including James Spigelman in 2020 – had quit their Hong Kong judicial positions over the past couple of years amid concerns about the island’s trajectory.
“On the other hand, a number of Australian judges on the court continue to serve, retired judges from the UK and Canada continue to serve,” said Keane, 70, who will be a non-permanent member of the court of final appeal.
“All of them, no doubt, have anxiously considered their position. And my own view would be that given how successful the court has been in its role in upholding the rule of law, one should be very slow indeed to decline the opportunity to serve on such a successful court.”
Keane said the court of final appeal had a long history as “a very successful institution that’s made an important contribution to the success of Hong Kong”.
He believed it was better to play a role rather than “vacate the field”.
“One has to be very careful about declining to do good work because one has an apprehension that one might be asked to do bad work,” he said.
Keane was responding to concerns from some observers, including Yam, who did not question “the good intentions of those who take up these sorts of positions”.
Yam said senior judges were “trying to hold the fort, but a lot of the deterioration in the nature and quality of judicial rulings and how the courts are being used to enforce a draconian law is happening actually at a lot of the lower courts where the senior judges might not necessarily have visibility”.
“It’s understandable that senior judges around the common law world might feel that if they were in Hong Kong they might be able to help make situations less bad, and that they might be supporting some of their fellow judges in Hong Kong who are trying to hold the fort,” Yam said.
“But in circumstances where you’ve got a regime that is moving towards rule by decree, I would query whether foreign judges staying on the court or taking up appointments on the Hong Kong court of appeal is really doing anything other than allowing an increasingly authoritarian authority to take a victory lap.”
Keane told Guardian Australia he could “understand that some might have that view” but it was “a view of politics that treats the institution, the court of final appeal, as if it were a political branch of government”.
“I think that’s a short-term view … it does seem to me that it is rather like saying, ‘well I’m declaring my own personal decree of disapproval rather than taking an opportunity to serve’.”
Hong Kong’s chief executive, John Lee Ka-chiu, praised Keane’s appointment, saying it reflected a “high degree of confidence” in Hong Kong’s legal system, the South China Morning Post reported.
But Simon Henderson, an Australian human rights lawyer who was based in Hong Kong from 2017 to 2019, said the appointment would “not restore confidence in the independence of Hong Kong’s judiciary, which has been irrevocably damaged due to the actions by Beijing and the Hong Kong government”.
“There are significant risks with the participation of foreign judges providing undeserved legitimacy for Hong Kong’s legal system, while the repression and weaponisation of the legal system against human rights defenders, including lawyers, continues.”
Critics say the sweeping national security law imposed in Hong Kong in 2020 is vaguely worded and outlaws a broad swathe of behaviour including “collusion with foreign and external forces”, with a maximum sentence of life imprisonment for those found guilty.
The Australian Department of Foreign Affairs and Trade said retired Australian judges serving on the Hong Kong courts did so in their private capacity.
“The Australian government takes very seriously the erosion of autonomy, rights and freedoms in Hong Kong,” a spokesperson for the department said.
“The Australian government consistently raises our concerns both directly with authorities in Hong Kong and Beijing and in multilateral forums.”
Dr Anna Dziedzic, a postdoctoral fellow in comparative constitutional law at Melbourne law school, said Keane’s appointment was significant because he was the first new overseas non-permanent judge to be appointed to the court of final appeal since the National Security Law came into force in June 2020.
“In Hong Kong, foreign judges are invited to serve to enhance the court’s authority and expertise in common law adjudication,” Dziedzic said.
“However, they have come to assume symbolic importance as a sign of the independence of the courts and the integrity of the legal system.
“For this reason, there will be some who will characterise the appointment as a vote of confidence in Hong Kong’s judiciary; but others who will criticise Justice Keane for lending legitimacy to a judiciary that is no longer really independent.”
The president of the Law Council of Australia, Luke Murphy, said Keane was “an outstanding jurist”.
Murphy said the council had previously “expressed concern regarding developments in Hong Kong which it considers undermine judicial independence and discretion”.
Keane is expected to fly to Hong Kong when required and to be paid for work performed.