Chief Justice Beverley McLachlin is photographed at her office at the Supreme Court of Canada, on Dec. 11, 2017.Fred Lum/the Globe and Mail
Hong Kong authorities are using the continued presence of foreign judges on the territory’s top court to “legitimize their human rights abuses and the undermining of Hong Kong’s rule of law,” a new report claims this week.
Nine foreign nationals currently serve as non-permanent justices (NPJs) on the Hong Kong Court of Final Appeal, including former Supreme Court of Canada chief justice Beverley McLachlin, along with equally esteemed judges from the United Kingdom and Australia.
Their presence is a legacy of British colonial rule and Hong Kong’s connection to the wider common law system, and was long seen as a guarantor of the territory’s judicial independence following its handover to Chinese rule in 1997.
Ms. McLachlin has served on the court since 2018. She controversially signed on for a second term in 2021 despite Beijing’s imposition the year before of a national security law that has drastically reduced Hong Kong’s autonomy and driven a sweeping crackdown on civil society.
Her current term is due to expire in June, and it is not clear whether Ms. McLachlin, who turns 81 in September, will do another stint. In March, 85-year-old Australian judge Anthony Gleeson stepped down, with the judiciary citing his age as the deciding factor.
Ms. McLachlin did not respond to a request for comment. In the past, she has defended the role of foreign judges on the CFA, saying the court operates as “an independent, judicial branch of government – perhaps the last surviving strong institution of democracy.” Other foreign judges have made similar statements.
But a new report from the U.K.-based Committee for Freedom in Hong Kong (CFHK) claims that “faced with the reality of Beijing’s power over the judiciary,” the CFA has been “highly reluctant to challenge government abuses of the law, particularly with respect to the crackdown on civil liberties and vast numbers of political prosecutions of dissidents.”
“To maintain their personal integrity and ethics, [foreign NPJs] must uphold the constitutional principles of fairness, justice, and the application of international law, all of which have been seriously undermined by Hong Kong authorities,” Alyssa Fong and Samuel Bickett, the report’s authors, write. “When judges are routinely sending Hong Kong teenagers to jail for exercising their freedom of expression, these judges must understand that their presence offers no positive impact for the people of Hong Kong. They only help to maintain the illusion of rule of law.”
The crackdown is poised to escalate following the passage of an additional security law, known as Article 23, which creates a host of new offences with strict penalties of up to life in prison. The legislation has been widely denounced by rights groups and Western governments, including Canada, which said Article 23 “risks compounding the chilling effect created by the National Security Law.”
The CFHK report highlights concerns – some long-standing, some new – about judicial independence in Hong Kong, such as the power under the security law for Hong Kong leader John Lee to choose all national security judges, who serve for year-long stints and can be removed if they are deemed a potential security threat.
Beijing has also shown itself more willing in recent years to use a provision in Hong Kong’s de facto constitution, the Basic Law, granting China’s National People’s Congress – the country’s rubber-stamp parliament – the final “power of interpretation” over how it is applied.
The NPC has used this item in the Basic Law to overturn CFA decisions, most recently in 2022, after judges said Hong Kong could not block British barrister Timothy Owen, a highly esteemed King’s Counsel, from representing Apple Daily publisher Jimmy Lai, currently facing prosecution under the national security law.
After Mr. Lee appealed to the NPC, it issued a decision saying his administration had ultimate authority to decide whether foreign lawyers could act in national security hearings. Mr. Owen was quickly kicked off the case.
The 2020 security law contains a similar provision stating the “power of interpretation of this law shall be vested” in the NPC, while Article 23 enables Mr. Lee’s administration to issue “subsidiary legislation” when needed for national security purposes, without consulting the city’s legislature, providing another way to potentially bypass court decisions.
Pressure has been growing on foreign judges to quit the court for years now. In 2022, Robert Reed and Patrick Hodge, the president and deputy president of the U.K. Supreme Court, both resigned from the CFA. In a statement, Mr. Reed said he was concerned his presence was tacitly endorsing “an administration which has departed from values of political freedom, and freedom of expression.”
Hong Kong officials have not denied the great weight they place on the ongoing presence of foreign justices, with Mr. Lee saying last year it “helps maintain a high degree of confidence in [Hong Kong’s] judicial system.”
Ms. McLachlin has faced intense criticism in Canada for her continued role on the court.
Chi-Kun Shi, a Hong Kong-born lawyer and board member of the Ontario Law Society, told The Globe and Mail in 2022 that “a distinguished leader on human rights and fundamental freedoms such as the former chief justice has no place inside such a system.”