Beverley McLachlin at her former office at the Supreme Court of Canada in 2017.Fred Lum/the Globe and Mail
The role of Hong Kong’s judiciary in a sweeping crackdown against the city’s opposition politicians, pro-democracy activists and civil society is coming under renewed scrutiny as the government seeks to expand the number of crimes deemed a threat to national security. That includes the presence of foreign judges, including former Supreme Court of Canada chief justice Beverley McLachlin, on the city’s top court, a British colonial legacy that some say is no longer valid.
Speaking at the opening of the new, opposition-free legislature Wednesday, Hong Kong Chief Executive Carrie Lam said legislation would be introduced to add treason, sedition and theft of state secrets to the list of crimes created by the national security law (NSL) imposed by Beijing in 2020. That list already includes subversion, secession and collusion with foreign forces.
Since the law was passed, courts have been aggressive with sentencing. In November, protester Ma Chun-man got six years in prison for “inciting secession” by chanting pro-independence slogans. This week, delivery worker Jacky Su was jailed for 13 months for taking part in a peaceful rally against the NSL in July, 2020, which a magistrate called “secessionist” and “seditious.”
In December, the Court of Final Appeal (CFA) expanded the broad powers created by the NSL – including the right to deny bail and conduct searches without judicial oversight – to any case deemed to involve national security. That ruling in particular has attracted international scrutiny, owing to the presence on the court of foreign non-permanent judges (NPJs), including Ms. McLachlin.
Foreign NPJs, a legacy of Hong Kong’s history as a British colony, have been termed “canaries in the coal mine” for judicial independence – proof the courts are free from Beijing’s interference. But this view is outdated, according to Johnny Patterson, the policy director at Hong Kong Watch, a U.K.-based NGO.
“Given the trajectory of politics in Hong Kong – the eradication of the free press, clampdown on civil society and shut down of opposition – the presence of foreign judges on the CFA is increasingly merely providing a veneer of legitimacy for a broken system,” he said.
Ms. McLachlin faced similar criticisms last year when she chose to extend her stint on the court until 2024. In a statement to The Globe and Mail this month, she said she approaches “this as a matter of principle.”
“So long as the Court of Final Appeal is independent, it remains a force for justice and the rule of law – and if the critics are right, a badly needed one,” she said. “The Chief Justice assures me that the Court is independent and that he is assured by the Chief Executive that this will continue. Whatever the situation on other fronts may be, I believe I should do nothing to undermine the Court, so long as it remains independent. We need to cherish such democratic institutions as we have, not abandon them.”
In August, Robert Reed, head of the Supreme Court of the United Kingdom, cited the “widespread support amongst the legal community in Hong Kong for the participation of U.K. and other overseas judges” as a reason for he and other British judges to remain on the CFA. Simon Young, a law professor at the University of Hong Kong, told The Globe last year that “the premature departure of the foreign judges will do nothing positive for Hong Kong.”
Others, however, agree with Mr. Patterson’s view that foreign NPJs are propping up a system that no longer deserves it. Their presence, said Eric Lai, Hong Kong law fellow at Georgetown University, “is an endorsement of the whole system of Hong Kong’s judiciary, which is now departing from its commitment to safeguard citizens’ rights in accordance with international human rights law.”
Ms. Lam and other top officials have used the presence of foreign judges to push back against international criticism. In July, she said “the willingness of these distinguished judges to participate in the work of the Hong Kong courts is the best evidence of Hong Kong’s judicial independence.”
All judges in Hong Kong are ultimately appointed by Ms. Lam, who also designates a pool of judges who can hear NSL cases. This has raised questions about judicial independence, as the government can in theory exclude judges it believes would be unsympathetic to its goals. The full list of NSL judges is not public, but of the five CFA jurists who have heard such cases, none are foreign NPJs, though the government says they are “not excluded.”
Since the NSL came into force in July, 2020, foreign judges have sat on 15 of the 46 cases before the CFA, according to a review of judgments. Ms. McLachlin has sat on three cases since she was first appointed in 2018, authoring a verdict in one, involving a man who missed a court hearing because of a dental emergency.
For the cases they do hear, foreign judges can be generously remunerated. In response to an inquiry from The Globe, a judiciary spokeswoman said nine foreign NPJs were engaged in both 2020 and 2021, for which they were paid HK$2.9-million and HK$3.9-million respectively – about HK$322,200 ($51,700) and HK$433,300 ($69,600) a judge, on a case by case basis depending on how long they sit. Their remuneration is pegged to the average monthly salary of a permanent judge, which is HK$376,600, about $60,000, while that of Canada’s Chief Justice is currently about $38,700.
In response to a question about her remuneration, Ms. McLachlin said, “I am hearing only one short case this year, and that is by video. I do not expect much remuneration if any.”
The two members of the U.K. Supreme Court who sit on the CFA, Mr. Reed and Patrick Hodge, “do not derive any financial benefit” as per British law, a spokeswoman said.
Mr. Reed has held consultations with the British government over the continued role of British judges on the court, something Canadian lawmakers would like to see Ottawa do as well.
“We’ve had no transparency from the Canadian government about any discussions they might have had” with Ms. McLachlin, said Michael Chong, a Conservative MP and shadow foreign minister. While he acknowledged there could be contact behind the scenes, Mr. Chong said the public had a right to know.
“If anything, there’s a great deal more latitude for the Canadian government to take these discussions than the U.K.,” he said. “Because [Reed and Hodge] are current members of the Supreme Court, there is some caution for the executive branch” in being seen to tell the judiciary what to do. “We don’t have that issue here” because Ms. McLachlin is a private citizen, “and I certainly think the Canadian government has a say on whether or not this arrangement continues to be appropriate.”
Some Canadian lawyers have been very critical of Ms. McLachlin’s decision to remain on the court. Chi-Kun Shi, a Hong Kong-born lawyer and board member of the Ontario Law Society, said “Justice McLachlin should immediately distance herself from the HKCFA, unless she receives substantive opportunity to apply her considerable expertise to adjudicate cases of human rights and fundamental freedoms, which so far she has not.
“As the Hong Kong government, aided and abetted by its legal system, tightens its grip on dissidents … a distinguished leader on human rights and fundamental freedoms such as the former chief justice has no place inside such a system,” Ms. Shi said. “Her place, respectfully, should be outside and against it.”
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James Griffiths