Beverley McLachlin set to quit Hong Kong Court of Final Appeal

This column is the opinion of Matt Malone, Research Associate at the University of Ottawa’s Center for Law, Technology and Society. For more information on CBC’s Opinion section, please see the FAQ.

Members of the Canadian legal community are quick to share their opinions on Twitter. But when it comes to a question, they tend to be surprisingly quiet: it’s high time the Right Honorable Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, left her post as a non-permanent judge in the Hong Kong Court of Final Appeal of Kong.

While this is a truth worth telling, few in the Canadian legal community seem willing to tell it.

McLachlin is one of 10 judges from foreign jurisdictions including the UK and Australia who sit as non-permanent members of Hong Kong’s highest court. This arrangement – which replaced the process under British rule that allowed judgments to be appealed to a higher court in London – was agreed to by China and Britain when sovereignty over Hong Kong was transferred in 1997.

It’s hard, in all honesty, to be surprised at everything all the time. But McLachlin’s continued presence in the highest court of the special administrative region – the very institution charged with upholding the rule of law – is surprising precisely because it lends his (and Canada’s) credibility to China’s program to dismantle the democracy and the rule of law in Hong Kong.

This is precisely why Canadians should care. McLachlin is a representative of the Canadian legal community like no other. The oldest Chief Justice of the Supreme Court of Canada, she is one of 15 living Canadians to be described as “Right Honourable”. She is a Companion of the Order of Canada, her highest rank. The imprimatur of these references is intimately linked to the brand, reputation and values ​​of Canada. It’s unsettling to see them deployed in this way here – even though warning signs have been flashing since McLachlin took office in the Hong Kong court in 2018, when she retired from the Supreme Court of Canada.

Reasons to leave

Consider the following facts.

First, and most obviously, there was dramatic events that rocked Hong Kong in 2019 and 2020, as the world watched as civil society in Hong Kong resisted the passage of the Fugitive Offenders Extradition Amendment Bill by the Hong Kong government, followed by China’s passage of the Hong Kong’s national security. These peaceful protests have been met with brutal crackdowns and waves of arbitrary arrests that continue.

Second, last summer China’s director of the Office for Safeguarding National Security made a public speech openly and clearly stating that he expected Hong Kong justice to reflect China’s will. The speech clearly marked the end of the independence of the judiciary in Hong Kong. This is a clear violation of a fundamental principle of the rule of law.

Third, other judges who are McLachlin’s peers on the court have resigned in a steady wave of protests. Lord Reed (the Chief Justice of the Supreme Court of the United Kingdom) and Lord Hodge (the Deputy Chief Justice of the same court), who both sat as non-permanent judges in the court, resigned last Wednesday. Their action followed the resignation of former New South Wales Chief Justice James Spigelman, who resigned two years ago.

Hong Kong riot police guard anti-government protesters in Hong Kong’s Causeway Bay district in May 2020. According to Matt Malone, China’s crackdown on peaceful protests is just one reason why Beverley McLachlin should resign from his post at the Hong Kong court. (Vincent Yu/Associated Press)

Finally, when given the opportunity for McLachlin to step down at a low-key diplomatic interval — at the end of her three-year term in July 2021 — many expected her to do so. Instead, McLachlin renewed his position for another three years, even after some members of the Canadian legal community sought to Raising concerns on the suitability of its seat in the field.

His renewal also took place in the difficult context of the arbitrary detention of Michael Spavor and Michael Kovrig by China. Both Michaels had been detained for nothing more than being Canadians – turned into effective bargaining chips in a geopolitical act of retaliation for Canada’s detention of Meng Wanzhou, who was held pursuant to a treaty of extradition with the United States.

To be fair, McLachlin, who is an avid participant and observer of public discourse, is not unaware of these developments. As she told a canadian newspaper last year: “I thought a lot about these things. I tried to make my decision based on principle.” She also noted that if the tribunal’s independence is “challenged in a way inconsistent with my principles, then I’m leaving. I’m sorry. I won’t be a part of it.”

For a Chief Justice who has played an important and courageous role in so many of our country’s critical issues over the past four decades, including courageously using the word “genocide” to describe Canada’s history with First Nations, the days when he was politically culpable and a brave thing to do – it’s sad to see her claiming that the chain of events unfolding in Hong Kong is still in line with her principles. She now sits on a tribunal whose independence from a regime under accused of genocide is barely veiled.

An act of self-mutation

Likewise, it is sad to see so many members of the Canadian legal community taking an oath of silence when it comes to criticizing McLachlin in this case. While Canadian lawyers, law professors and law students fervently challenge the mysteries of Supreme Court decisions, they have engaged in a bizarre act of self-harm when it comes to voicing any criticism of this failure. judgment of Canada’s former highest judge. In fact, McLachlin is brand name speaker at Ryerson’s School of Law for an event this month on humanitarian crises abroad.

The truth must be told was the name of McLachlin’s award-winning memoirs chronicling his unique and innovative journey in law. His legacy is, in many ways, that of the country. This is exactly why it is devastating to see her display such poor judgment by continuing to sit on the Hong Kong court when it is most needed for her to act and speak truth to power. So are the many members of the legal community who have agreed to give him a pass. Even if the only cases brought before the Hong Kong court were simply commercial in nature — and they are not — it is time for us members of the Canadian legal community to speak the truth.

She should step down.

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