Beverley McLachlin is one of the most celebrated jurists in Canada and, indeed, around the world.
She served as chief justice of the Supreme Court of Canada from 2000 to 2017, during which she proved to be an ardent defender of the Constitution. In recognition of her work, she has been named to the Order of Canada, Britain’s Order of St. John and France’s Legion of Honour. She has also been awarded dozens of honorary degrees in multiple countries.
And, since 2020, Ms. McLachlin has been embroiled in controversy over her role as a non-permanent foreign judge on Hong Kong’s highest court, the Court of Final Appeal.
She has faced repeated calls to step down on the grounds that the presence of so celebrated a Western jurist on the court lends cover to what is really going in the former British territory: that is, China’s erosion of basic rights thanks to the imposition of a draconian National Security Law in 2020, and the steady loss of independence by Hong Kong courts.
To date, Ms. McLachlin has stood fast, and even agreed to another three-year term in 2021. She declined to step down last year after the president and vice-president of the U.K. Supreme Court resigned as non-permanent judges out of fear they were lending legitimacy to Hong Kong’s increasingly authoritarian administration.
Calls for her to quit were repeated this month after Beijing placed bounties of one-million Hong Kong dollars ($169,000) on the heads of eight prominent pro-democracy activists living overseas.
Her reason for staying, she told a CBC interviewer in 2022, is that she was assured that the court was independent, and that she won’t abandon it when it may be needed more than ever.
“This court may be called upon to rule on some of these very controversial provisions in the security law,” she said. “I will not be undermining it.”
She also said, though, that “obviously there is no point sitting on a court that is not respected, and whose rulings are not implemented.”
By her own bar, then, it time for Ms. McLachlin to walk away. Two decisions by the CFA are evidence of this.
Both involve Jimmy Lai, the businessman and media owner who was a key player in Hong Kong’s pro-democracy movement and a harsh critic of Chinese president Xi Jinping, until his arrest in 2020.
Mr. Lai was charged with one count of “collusion with a foreign country or with external elements to endanger national security” under the National Security Law. He was granted bail, but Hong Kong authorities appealed his release to the CFA.
Two remarkable things came out the court’s 2021 decision. One, the judges reconfirmed a previous opinion that they have no jurisdiction to challenge the constitutionality of Beijing’s odious National Security Law. And two, they overturned Mr. Lai’s bail and sent him back to prison, ruling that there is no presumption of innocence for people charged with a national security offence.
Mr. Lai will be tried later this year by a court filled with judges hand-picked by Hong Kong’s Beijing-approved chief executive, John Lee.
In the other case, from 2022, the court stood up to Beijing and its puppets in Hong Kong by denying a request from the Secretary for Justice to prevent Mr. Lai from hiring a British lawyer. So what did Beijing do? It colluded with the Hong Kong administration to effectively bar the British lawyer from representing Mr. Lai in court.
A court of last resort that cannot challenge a key law on constitutional grounds, and whose rulings are batted aside by a repressive regime surely no longer meets Ms. McLachlin’s criteria for staying on.
That becomes all the more pertinent given the fact that, since 2018, Ms. McLachlin has sat for only three cases on the CFA, and written only one ruling, none of which were related to the National Security Law.
She cannot ignore the words of the previous Hong Kong Secretary for Justice, who said in 2021 that, thanks to the presence of foreign jurists on the high court, “we know that our judiciary is working very well because they might not otherwise want to be part of our judicial system.”
Hong Kong’s judicial system is not working well at all. It’s window-dressing for Beijing’s repression, and Ms. McLachlin shouldn’t be part of it. It’s time for her to resign.