Ben Woodfinden: McLachlin should resign
Former chief justice Beverley McLachlin is actively legitimizing Beijing’s takeover of Hong Kong whether she realizes it or not.
By: Ben Woodfinden
Former chief justice Beverley McLachlin retired from the Supreme Court of Canada in 2017, and is widely considered one of Canada’s most renowned and distinguished legal minds. There is arguably no single judge in the post-Charter era that has shaped Canadian law, and Charter jurisprudence, more than McLachlin. It’s quite the legacy. And it’s perhaps also why McLachlin was nominated to become a non-permanent member of the Hong Kong Court of Final Appeal, the highest court in Hong Kong’s legal system. It’s also a reason why McLachlin should resign her position on the court.
Hong Kong nominates foreign non-permanent members to sit on its highest court. This was part of the arrangement between China and the United Kingdom as part of the handover of Hong Kong in 1997. McLachlin is the first Canadian to sit on the court and her nomination in 2017 is a testament to the her fine reputation. This was before China’s crackdown in Hong Kong that has all but destroyed Hong Kong’s free and democratic status.
McLachlin’s term was renewed in 2021, and she remains on the court. In an interview with CBC’s Power and Politics show last week, McLachlin doubled down on this decision and insisted that the court remained independent and that it was important for her to remain on the court precisely because the “regime” in Hong Kong is the kind of government that “needs checking.”
The whole clip is worth watching. McLachlin is clearly aware of the dire and tragic situation in Hong Kong, but thinks she can play some sort of role in upholding the liberal democratic values that used to characterize Hong Kong. There’s no reason to doubt the sincerity of McLachlin’s beliefs here, but that doesn’t mean she’s right or that she shouldn’t be challenged on this.
McLachlin’s continued presence on the court lends legitimacy to Beijing’s destruction of Hong Kong’s liberal-democratic order, and she should be able to recognize the reality of the situation.
After a year of widespread pro-democracy protests, Beijing imposed a new Security Law that all but killed off Hong Kong’s democratic status. The law imposes elements of China’s legal system in Hong Kong, and undermines the independence of Hong Kong’s judiciary. The vague and extremely broad scope and wording of the law supposedly targets things like terrorism and subversion, but as Amnesty International notes “these offences are so broadly defined they can easily become catch-all offences used in politically motivated prosecutions with potentially heavy penalties.”
Most importantly, the law specifies that it is Hong Kong’s chief executive who determines which judges handles national security cases. The law establishes a “Committee for Safeguarding National Security” that includes a delegate from Beijing that is supposed to “advise” the Hong Kong government, but reflects direct interference and control from Beijing.
The law functionally ends any notion of the idea of the “one country, two systems” principle that was supposed to protect Hong Kong’s unique administrative and legal systems. Part of the reason why foreign judges were asked to sit on Hong Kong’s highest court was to support and help demonstrate the continuance of Hong Kong’s independent British-style legal system. But their presence now legitimizes Beijing’s dismantling of Hong Kong’s liberal-democratic order.
The law has already been used to prosecute pro-democracy activists. Many activists have left Hong Kong and now live in exile. The law has silenced much dissent, and was used to freeze the assets and bank accounts of a major newspaper, Apple Daily, and its owner Jimmy Lai. Lai, a prominent democracy activist in Hong Kong, was imprisoned as a result of the law.
In response to the law, two senior British judges who were sitting on the court resigned. One of the judges, Lord Reed, said in a resignation statement that “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, to which the justices of the supreme court are deeply committed.”
Last month, a group of international judicial figures that includes former U.K. and Canadian attorney generals Robert Buckland and Irwin Cotler warned the foreign judges who remain in Hong Kong that they operate in an environment “where judicial independence has been wholly undermined and the Chinese Communist party can dictate the outcome of cases.” In March the U.K. government said that “it is no longer tenable for serving U.K. judges to sit on Hong Kong’s top court.”
McLachlin is surely aware of the reality of the situation. While she may still feel as though she is able to act as an independent judicial check on the regime, she has next to no power to protect civil liberties and rights in the face of these sweeping new laws. What’s more astonishing in the Power and Politics clip though is that McLachlin actively endorses the idea that the courts are still operating independently and that she says “I’m one hundred percent satisfied that I’m not doing anything negative to prop up that regime.”
She also goes on to say that she hopes rulings from the court on the law will be respected, neglecting any mention of how these laws are to be adjudicated, and that she is helping the cause of democracy in Hong Kong “that many people are still fighting for.” McLachlin ought to listen to the various civil society organizations and advocates who are still fighting for the dying embers of Hong Kong’s democracy, and resign.
The Hong Kong Rule of Law Monitor along with more than 50 other Hong Kong diaspora groups and NGOs issued an open letter calling on the remaining overseas non-permanent judges to resign. But instead, and in doing interviews like the one she did with CBC, McLachlin is actively legitimizing Beijing’s takeover of Hong Kong whether she realizes it or not.
Interestingly, McLachlin has not yet actually been appointed to a single case on the court. Recall again that the role of these foreign judges is more to help supervise and lend credibility to Hong Kong’s independent judicial system. Now that this is no more, what McLachlin is lending credibility and legitimacy to is something else, something that actively undermines democracy in Hong Kong.
Retired Supreme Court justices in Canada are often called upon to serve in important roles post-retirement in Canada because they are seen as impartial adjudicators who can preside over contentious or controversial subjects. This itself is something we perhaps ought to rethink.
The respect with which retired justices are accorded is in part an extension of their institutional credibility. These justices are not simply respected as private individuals, they are respected because of a crucial role they’ve played in a widely respected institution. They possess a kind of institutional capital that can then be spent on other things.
The problem, and something that McLachlin should seriously think about, is that when this capital is spent in bad ways it reflects badly on the institution itself. There’s a lot of talk these days about declining trust in public institutions, and populists who supposedly attack and seek to undermine these institutions. These concerns may be well founded. But if we’re worried about the health and legitimacy of these institutions, we should spend more time worrying about the post-retirement careers of former representatives of these institutions who are inevitably bound up with these institutions even after they retire.
It’s not just justices who should think carefully about this. Retired officials from all public institutions, whether they be central banks or other democratic institutions, ought to think very carefully about their post-retirement activities if they take institutions and institutional health seriously.
McLachlin’s perplexing double down on her position on the court, despite calls both in Canada and Hong Kong for her to step down are not simply a reflection on her judgment. They potentially tarnish the Supreme Court as well. McLachlin undoubtedly cares deeply and understands the importance of an independent judiciary in a free and democratic society.
But precisely because of this, she ought to understand why her decision to remain on the court damages what’s left of democracy in Hong Kong and potentially corrodes credibility and trust of Canada’s judiciary, her most substantial legacy. It’s time for Beverley McLachlin to recognize this and resign her role on Hong Kong’s Court of Final Appeal.
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