‘Propping up the Regime’: Former Chief Justice McLachlin Criticized for Continuing to Serve on Hong Kong’s Top Court

By Lee Harding

Former Supreme Court of Canada chief justice Beverley McLachlin is drawing flak for continuing to sit as a judge on Hong Kong’s highest court.

Two British supreme court judges and one from Australia resigned from the Hong Kong Court of Final Appeal (HKCFA) in light of the National Security Law (NSL) imposed by Beijing on the territory that observers say threatens civil liberties. But McLachlin and other Hong Kong-appointed international judges have remained.

“It’s really disconcerting,” Ryan Alford, a professor at Lakehead University’s Bora Laskin Faculty of Law, said in an interview.

Alford called for McLachlin’s resignation from the HKCFA in a series of Twitter posts on June 17.

“[I]n the course of an unrelenting assault on Hong Kong’s civil society every pro-democracy organization of note there has called for the foreign judges to resign, noting that they merely provide China with a fig leaf for its rapaciousness,” he wrote.

“Beijing, through ‘judicial education’ & libelous state controlled media has driven independent judges & lawyers out: leaders of the HK Bar Council were accused of sedition & the gov’t interfered with the…HK Law Society’s elections.”

Alford’s comments followed a CBC interview in which McLachlin defended her presence as a non-permanent judge on the bench, insisting that the court is “functioning the way I’m used in Canada to courts functioning” and “there is no governmental influence.”

“Technically, at least, the Hong Kong government is independent of the central government [in Beijing], and so far they have committed to supporting an independent court. … I don’t see myself sitting on a court whose rulings are not respected, no,” she said.

“I have stayed on because we [the external judges who remain] believe it would be the wrong signal to send that there’s anything wrong with this court. … This court may be called upon to rule on some of these very controversial provisions in the security law. And what they need, what Hong Kong needs, and what the bar tells us they need, is that court to remain in place, to remain independent, and to remain strong.”

However, China expert Margaret McCuaig-Johnston, a senior fellow at the Graduate School of Public and International Affairs at the University of Ottawa, noted on Twitter that international justices of the HKCFA “are not permitted to sit on national security cases so [McLachlin] can’t help the pro-democracy legislators who are imprisoned.”

“She accepted the position on her own so the [Canadian government] can’t remove her. The Brits left as they saw they were a fig leaf for the CCP,” McCuaig-Johnston wrote, referring to the Chinese Communist Party.

Canadian Friends of Hong Kong wrote on Twitter that the “CCP’s judicial interference/influence is pre-ruling & on individual judges.”

“Just the optics of having a Chief Justice of Canada on the [Hong Kong] bench itself is propping up the regime,” the group said.

Alford said Beijing first overturned the HKCFA’s interpretations in 1999 and it has eroded ever since. In a bail hearing on Feb. 9, 2021, the court ruled that the NSL is “not subject to constitutional review by the court on the basis of any alleged incompatibility as between the NSL and the Basic Law as applied to Hong Kong.”

He says he believes this jurisprudence would be known to McLachlin, and she should know she could not rule against the NSL.

The Basic Law is Hong Kong’s mini constitution that came into effect on July 1, 1997, when the British returned the territory to China. It enshrines the “one country, two systems” principle and, among other rights, protects freedom of assembly and freedom of speech.

Alford also says McLachlin’s claim that the bar wants her to stay is not an argument in her favour.

“There was direct political interference from the government in the election of the Law Society of Hong Kong. Lawyers in Hong Kong were warned not to vote for certain people to join, essentially, the board of directors.”

The NSL applies retroactively, Alford says, just as the Emergencies Act did for the Freedom Convoy participants in Ottawa and supporters in Canada.

“You’re on notice that if you were involved in these protests, which are some of the largest protests in the history of the world—or if you have you spoken in favour of people’s right to do it—that you’re going to be next in this crackdown. And this involves the barristers. They’ve been charged on that basis … and [the authorities] seized privileged barrister-client materials.”

‘Reputational Benefit’ to HK Govt

McLachlin is one of 10 judges from foreign jurisdictions who remain as non-permanent members of the HKCFA. On March 30, Lord Robert Reed, president of the United Kingdom Supreme Court, and Lord Patrick Hodge, deputy president of the same court, both resigned from the HKCFA.

“I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression,” Reed wrote in a statement.

James Spigelman, a former chief justice of New South Wales, Australia, stepped down from the HKCFA in September 2020 over the NSL. He was the first senior judge to resign while publicly citing the new law, which was passed by Beijing on June 30, 2020, without consultation or legislative process in Hong Kong.

On June 16, former Canadian justice minister Irwin Cotler and others from abroad with former high positions in law backed a 56-page legal paper that outlined why the judges should resign.

“[T]here has been a trend toward greater judicial deference toward the executive in ways that deviate from established legal principles,” the document says, adding that having international judges remain “is of considerable reputational benefit to the Hong Kong government, which has repeatedly asserted the continued presence amounts to a vote of confidence in the Hong Kong courts as whole.”

Toronto lawyer Chi-Kun Shi, who was born in Hong Kong prior to the Chinese takeover in 1997, says McLachlin has stood down while the government manipulates judicial process by choosing which judges will adjudicate security cases.

“I am not aware that she has opposed any of the alarming developments in the rule of law in Hong Kong,” she told The Epoch Times.

Shi says the only way McLachlin can “promote values of fundamental rights and freedoms” as laid out by Hong Kong’s Basic Law and international law is by her resignation.

“Her absence, should it occur, will be the first act of her opposition to the current state of rule of law in Hong Kong to my knowledge to date. It would be influential and for the good,” she said.

“Her presence provides credibility to the HKCFA, for which credibility no longer exists. The good of her resignation would be the truth.”