Former Liberal justice minister Irwin Cotler, a widely respected champion of human rights, says former Supreme Court of Canada chief justice Beverley McLachlin should consider resigning her seat on Hong Kong’s highest appellate court to protest against China’s crackdown on the Asian city’s legal freedoms.
“I think it would be an important statement if she did,” Mr. Cotler told The Globe and Mail on Thursday. “The way this national security law is drafted, it effectively removes the independent authority that she has because the national security law is so broad that they would replace her with their own people on a whole gamut of cases. So I think she would make an important statement if she did, in fact, withdraw.”
Ms. McLachlin, who was Canada’s longest-serving chief justice, agreed in 2018 to a three-year term on the Hong Kong Court of Final Appeal, which routinely invites judges from other common-law jurisdictions to be non-permanent members.
The court, established in 1997 when the former British colony was handed over to China, has also included judges from Britain, Australia and New Zealand, who occasionally hear cases. Ms. McLachlin has heard three cases since her appointment, which ends in 2021.
But China’s imposition of a national security law erodes the legal freedoms and rule of law that Beijing promised Hong Kong citizens would remain in place for 50 years. In addition to Mr. Cotler, some Members of Parliament and legal experts in Canada also called for Ms. McLachlin to resign.
Hong Kong’s independent judiciary, one of many freedoms guaranteed in the return to Chinese rule, has long been considered key to the city’s success as a global financial hub.
A law professor and human rights lawyer, Mr. Cotler has drawn acclaim for his work as counsel to prisoners of conscience worldwide, from South Africa’s Nelson Mandela to Soviet-era dissident Natan Sharansky. Mr. Cotler was a Montreal MP for nearly 16 years before stepping down in 2015.
Mr. Cotler said he intends to telephone Ms. McLachlin to make the case for her to resign and emphasize that Beijing’s new national security law removes the independence of the judiciary.
“She could take the position that the over-broad, draconian national security legislation would not only compromise the position of an independent appellate court in Hong Kong, but in fact would even exclude them from being able to act as an independent court,” Mr. Cotler said.
The new law imposed by Beijing on Tuesday prohibits any act of treason, secession, sedition, or subversion against China and punishes people for activities that endanger national security. China’s National People’s Congress has the right to override court rulings in Hong Kong with what are called “interpretations.”
Former Canadian ambassador to China David Mulroney agreed that Ms. McLachlin should step down. He said the presence of foreign judges helps confer legitimacy on the Court of Final Appeal and said that Canada’s July 3 announcement it was suspending an extradition treaty with Hong Kong “is a pretty eloquent statement about what we think of the Hong Kong judicial system right now.”
Last August, after two months of massive protests in Hong Kong over the future of the city, The Globe and Mail asked Ms. McLachlin whether she had considered stepping down. She replied in an e-mail that there was no need.
“The courts in Hong Kong remain independent and impartial and I intend to fulfill my role on the Hong Kong Court of Final Appeal as best I can,” she said.
Asked again in early July whether she planned to remain on the Hong Kong court, Ms. McLachlin replied: “I am not in a position to comment on this situation.”
NDP foreign affairs critic Jack Harris said the decision to step down should be left to Ms. McLachlin, but added there may be value in having her on the Hong Kong high court for the time being.
“Canada as a country hasn’t yet decided that we should have a no-go zone with respect to China and Hong Kong,” he said. “Obviously in these circumstances, [Ms. McLachlin’s presence] does give prestige to the court and also gives it a flavor of international jurisprudence as opposed to their interpretation of the rule of law that we are seeing in Beijing. We are seeing the imposition of Chinese law on the people of Hong Kong, but how it affects the internal courts at this moment is uncertain.”
University of Ottawa law professor Errol Mendes, however, said he believes Ms. McLachlin should resign.
“Just to show solidarity with the people of Hong Kong and for the view that Canada has now taken in withdrawing the extradition act is that she should step down,” he said.
Conservative MP Peter Kent said Ms. McLachlin should consider resigning. “She is a very smart and honourable person. She was a good judge,” he said of her time in the Canadian courts. He said her resignation would send a strong message about how Beijing has compromised the rule of law in Hong Kong.
The role of British judges on the court has also come under scrutiny. The chairman of Britain’s parliamentary foreign affairs committee, MP Tom Tugendhat, on Wednesday questioned whether they should continue.
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