Six years ago, a particularly prescient observer perfectly captured the quagmire now enveloping Hong Kong’s legal system, as Beijing relentlessly erases basic political freedoms and fatally undermines the rule of law.
“When political rights and civil liberties decline, we can be certain that this is accompanied by a decline in the independence and accessibility of the courts,” they said.
The speaker was Beverley McLachlin, then chief justice of the Supreme Court of Canada and, since 2018, a non-permanent judge on the Hong Kong Court of Final Appeal.
In her 2017 speech, Ms. McLachlin was focused on countries such as Poland, Russia and Venezuela. Hong Kong was not mentioned. At the time, that made sense: Beijing’s grip on Hong Kong was starting to tighten, but the philosophy of “one country, two systems” was still largely intact.
In the years that followed, Hong Kong’s independence has withered, and with it the rule of law. To be sure, there are still courts, lawyers and all the outward accoutrement of a functioning legal system. Some parts of that system, and some cases, are still heard and decided in a way that is largely consistent with Western legal norms.
Ms. McLachlin points to that fact as she rejects calls for her to step down from the Court of Final Appeal. “The court is doing a terrific job of helping maintain rights for people, insofar as the law permits it, in Hong Kong. Which is as much as our courts do,” she told The Globe and Mail last week.
Her defence is true in only the narrowest of senses. To be clear, no one contends that Ms. McLachlin has participated in any proceedings that have warped the law in deference to Beijing. But the legal system as a whole has been undeniably compromised and corrupted, a point underscored by the trial of media tycoon Jimmy Lai, set to begin Monday, on trumped-up national-security charges. (In reality, Mr. Lai’s sole offence has been to embarrass Beijing with his relentless advocacy of democratic freedoms.)
Mr. Lai’s lawyers see a guilty verdict as a foregone conclusion, and with good reason. One need look no further than the gross abuse of due process in denying Mr. Lai his choice of counsel.
He had wanted British barrister Timothy Owen to lead his defence. The government contended that retaining a foreign lawyer to fight his charges was “incompatible” with its national-security legislation. But Mr. Lai prevailed, all the way through to the Court of Final Appeal.
Beijing simply ignored the court’s verdict, rewriting the Hong Kong constitution to retroactively prohibit a foreign lawyer. That is the triumph of raw power, the very antithesis of the rule of law. That is the legal system that Ms. McLachlin describes as operating “much as our courts do.”
Faced with this contradiction, other foreign judges have resigned from the Court of Final Appeal, either of their own volition or at the behest of their government. Not Ms. McLachlin; she even signed up for a second three-year term in 2021, passing up the opportunity for a quiet exit.
It is obvious why the Hong Kong government (and Beijing) would like Ms. McLachlin to continue. She is an internationally renowned jurist. Her presence provides a sheen of respectability and helps to preserve the fiction that not much has changed in Hong Kong’s legal system. That fiction is fodder for Beijing’s propaganda, and a weapon to be used against brave dissidents such as Mr. Lai.
Why, then, would Ms. McLachlin not now resign? She undoubtedly believes that she is helping to preserve some element of the rule of law. That view rests on the mistaken – bordering on naive – belief that the parts of the legal system not yet directly tainted by Beijing’s touch somehow exist separately from the corrupted whole. And the former chief justice seems blind to the peril posed to her own reputation.
Ms. McLachlin has been a consistent advocate for judicial independence, going so far as to joust with then prime minister Stephen Harper over his assertion that she had attempted to intervene in the selection process for a Supreme Court vacancy. She pointedly rejected that contention in a press release, a highly visible (and unusual) move for any judge.
The stakes in that tussle were far smaller than those in today’s Hong Kong, where Mr. Lai and lesser-known victims of Beijing’s repression are being hauled before political tribunals masquerading as open courts. It’s long past time that Ms. McLachlin stand up for judicial independence in Hong Kong, and resign her position on the Court of Final Appeal.