Legal experts question Beverley McLachlin’s position at Hong Kong court

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When one of Canada’s most celebrated legal figures was made a judge in Hong Kong, local leaders celebrated. The presence of Beverley McLachlin on the Court of Final Appeal would help to assure the city’s judicial independence, Hong Kong’s Secretary for Justice said.

Non-permanent judges, as foreign jurists such as Ms. McLachlin are called in Hong Kong, function “like the canaries, they are brought into the mines to make sure that everything is going well,” Teresa Cheng said.

So long as people like Ms. McLachlin sit on the court, “we know that our judiciary is working very well because they might not otherwise want to be part of our judicial system.”

But a growing number of people in Canada’s legal community are asking why Ms. McLachlin has continued to offer her services – and by extension, her support – to a system that is being used to prosecute protesters and pro-democracy politicians. This is unfolding in a city whose freedoms Beijing is rapidly bringing under its control.

In Britain, Lord Robert Reed, president of that country’s Supreme Court, said this week that a decision will be made soon on whether British judges should withdraw from the Hong Kong court. Currently, 10 of the 14 foreign judges on the Court of Final Appeal are from Britain. Two of them, including Lord Reed, are also sitting judges in Britain. Last year, an Australian judge resigned from the court, citing changes in the legal landscape.

Supporters of Ms. McLachlin say her continued presence is helpful in guarding the courts in Hong Kong. “The premature departure of the foreign judges will do nothing positive for Hong Kong,” said Simon Young, associate dean of research at the University of Hong Kong faculty of law.

Elsewhere, critics are renewing questions about whether a person of Ms. McLachlin’s prominence is doing more harm than good by staying.

“It’s exactly because she is so iconic – she stands for something – that it is time she takes a stand and comes back to Canada, draws a line to say, ‘No, I will not be part of this,’” said Chi-Kun Shi, a Hong Kong-born lawyer who is a bencher at the Law Society of Ontario. A bencher is a member of the organization’s governing board.

By staying, “she is nothing more than ornamental to the court,” Ms. Shi said, adding “at this point, the Hong Kong Court of Final Appeal has become an organ for the Chinese repressive regime.”

New research has sought to delineate the challenges to Hong Kong courts after a series of changes imposed by China, including a National Security Law that has brought Beijing’s definition of proper political expression and patriotism to a city that long enjoyed the freedom to come to its own conclusions.

That law “carries with it quite grave threats to judicial independence in Hong Kong,” scholars at Georgetown Center for Asian Law wrote in an extensive analysis, published in February.

In particular, Article 55 of that law allows for cases to be moved to courts in mainland China, a provision that “carries with it an implicit threat: deliver verdicts that are satisfactory to Beijing, or the Communist Party will simply use Article 55 to take matters into its own hands,” wrote the Georgetown scholars, Thomas Kellogg and Lydia Wong, a pseudonym for a scholar from China.

But Prof. Kellogg strongly supports the role of foreign judges in the city, saying they “can help the judiciary as a whole in its efforts to protect its independence.” Calling for their resignation “would be a major mistake, and would weaken Hong Kong’s judiciary at a time when it is facing an absolutely unprecedented challenge, as one of the last key institutions in Hong Kong not under Beijing’s control.”

Ms. McLachlin did not respond to a request for comment. Last year, she told The Globe and Mail: “the courts in Hong Kong remain independent and impartial.” Court records show she has heard three cases in Hong Kong and written one judgment.

Others aren’t so sure.

In February, Ms. Shi raised a motion before the Law Society that sought to ask Ms. McLachlin to immediately step down from the Hong Kong court. The motion failed, with other benchers expressing support for the former chief justice.

“She may be making a lot of headway in making changes there. I think it would be a mistake and perhaps very embarrassing for us to assume that we have such wide detailed knowledge that we can tell her what to do,” lay bencher Seymour Epstein said.

Jonathan Rosenthal, another lawyer and bencher, called the motion “preposterous and arrogant. Justice McLachlin will make whatever decision she deems appropriate.”

But 17 benchers voted in favour of the motion, in a sign of rising concern over the scale of legal upheaval in Hong Kong and Ms. McLachlin’s position there. “This motion is begging, asking chief justice McLachlin to step down,” said John Fagan, another lawyer and Law Society bencher. “We’re begging her as friends, for her own good.”

Change in Hong Kong has come swiftly.

After a year of peaceful street demonstrations and bloody confrontation between police and violent protesters, China brought in the National Security Law. This week, China’s rubber-stamp parliament ordered the remaking of the electoral process in Hong Kong, giving Beijing a direct say in the nomination of the city’s legislators, in addition to its chief executive.

The changes have raised concerns that Hong Kong, like China, is becoming a place with “rule by law” rather than “rule of law.”

In February, the Court of Final Appeal said it did not have the jurisdiction to constitutionally review the National Security Law.

Meanwhile, Chinese state-run media have openly attacked judges for decisions considered unfavourable to Beijing. Late last year, Zhang Xiaoming, deputy director of the Hong Kong and Macau Affairs Office that Beijing uses to oversee the city, said it was time to “reform” the city’s judiciary, without specifying what that might mean.

As those pressures mount, “the reasonable observer would query whether the courts can adequately protect their rights,” Hong Kong human-rights lawyer Mark Daly said.

“I would like to hear the justifications for staying on the Court of Final Appeal as a non-permanent judge,” he added. “The Hong Kong justice system is not the 1998 system and not even the 2019 system.”

Still, for someone like Ms. McLachlin to leave “will send mostly a misleading and incorrect message that there is something wrong with the legal system,” said Prof. Young of the University of Hong Kong.

In the future, “there will be many more challenging cases to come before the Court of Final Appeal,” he said. “And there is no reason to think the foreign judges will not continue to make their distinct contributions to jurisprudence.”

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