The 80-year-old jurist, whose career since retiring in 2017 from the Supreme Court of Canada has also included publishing best-selling books, announced on June 10 that she will retire from her post as a non-permanent overseas judge of Hong Kong’s top court when her second three-year term ends on July 29, 2024.
“It has been a privilege serving the people of Hong Kong,” McLachlin said, reiterating in her four-sentence press release that “I continue to have confidence in the members of the court, their independence, and their determination to uphold the rule of law.”
Former Supreme Court of Canada Chief Justice Beverley McLachlin
McLachlin’s impending departure from Hong Kong’s Court of Final Appeal will end a controversial chapter in her continuing 55-year legal career, which has included working as a lawyer, tenured law professor, trial judge, appellate judge, chief justice of a trial court and the Supreme Court of Canada as well as her continuing service as a commercial and international arbitrator/mediator with Arbitration Place.
In Canadian legal circles, McLachlin’s 2021 reappointment to, and participation in, the Hong Kong Court of Final Appeal’s panel of eminent non-permanent judges from other common law jurisdictions generated controversy that is ongoing. In 2021, a motion at the Law Society of Ontario’s Convocation urged her to step down from the foreign court, but it was defeated, albeit with 17 benchers voting in favour.
McLachlin’s reappointment occurred just as Hong Kongers witnessed the first conviction on July 27, 2021, under Hong Kong’s “national security” legislation that democracy activists and other critics contend weaponizes the courts and law to suppress freedom of expression and crush the democracy movement in China’s “special administrative region.”
With a track record in Canada of strongly defending judicial independence, McLachlin is among a dwindling number of senior non-permanent judges (currently eight, according to the appeal court’s website) serving on the Court of Final Appeal from other common law jurisdictions. Some of her overseas counterparts previously left the appeal court in light of the worsening repression in Hong Kong and amid concerns that the independent overseas judges could be seen as giving cover to the totalitarian Chinese regime. The Hong Kong Bar Association has, however, expressed support for the continued presence on the court of foreign non-permanent judges.
However, after the subversion convictions on May 30, 2024, of 14 prominent democratic activists under the national security law, two former senior British judges, Jonathan Sumption and Lawrence Collins, left the non-permanent panel. Collins cited the “political situation” in Hong Kong, but told the Associated Press he still has “the fullest confidence in the court and the total independence of its members.”
However, Sumption called the latest convictions legally indefensible while acknowledging they are still subject to being overturned on appeal.
“The real problem is that the decision is symptomatic of a growing malaise in the Hong Kong judiciary,” he wrote in the Financial Times. “Hong Kong’s judges have been threatened with sanctions in the U.S., an idea that is crude, counterproductive and unjust. Most of them are honourable people with all the liberal instincts of the common law. But they have to operate in an impossible political environment created by China.”
Sumption said every judge in Hong Kong knows that under the region’s Basic Law (constitution), “if China does not like the courts’ decisions, it can have them reversed by an ‘interpretation’ from the standing committee of the National People’s Congress in Beijing. The ‘interpretation’ that reversed the decision of the courts to allow former media mogul Jimmy Lai to be represented by U.K. counsel shows how far China will go in using this power against its opponents.”
Sumption also cited the impact on Hong Kong’s judiciary of “an oppressive atmosphere ... generated by the constant drumbeat from a compliant press, hardline lawmakers, government officers and China Daily, the mouthpiece of the Chinese government. A chorus of outrage follows rare decisions to grant bail or acquit. There are continual calls for judicial ‘patriotism’. It requires unusual courage for local judges to swim against such a strong political tide.”
He pointed out that, unlike the foreign judges from overseas, Hong Kong’s judges “have nowhere else to go. Intimidated or convinced by the darkening political mood, many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it. There are guarantees of freedom of speech and assembly in both the Basic Law and the National Security Law, but only lip service is ever paid to them. The least sign of dissent is treated as a call for revolution. Hefty jail sentences are dished out to people publishing ‘disloyal’ cartoon books for children, or singing pro-democracy songs, or organizing silent vigils for the victims of Tiananmen Square.”
Sumption warned that “Hong Kong, once a vibrant and politically diverse community, is slowly becoming a totalitarian state.”
“The rule of law is profoundly compromised in any area about which the government feels strongly,” he wrote in the Financial Times. “I was an overseas judge of the Court of Final Appeal until my resignation last week. I remained on the court in the hope that the presence of overseas judges would help sustain the rule of law. I fear that this is no longer realistic. Others are less pessimistic. I hope that they are proved right.”
For her part, McLachlin indicated in her terse “retirement” announcement this week that she still sets store in the independence of the judges of the Hong Kong Court of Final Appeal and its significance.
In a 2022 interview with the CBC’s Power and Politics, she told then-host Vassy Kapelos that the Hong Kong Court of Final Appeal “is completely independent of the regime in Hong Kong, the government is something else. And that’s just when you need courts, when you have laws like this, when you have governments that might need checking. So ... the court is completely independent and functioning in the way I am used [to] in Canada the courts functioning. There’s no governmental influence. And if there were, I wouldn't be there.”
Asked if the court were to rule that the national security law contravened the constitution, would such a decision be respected and implemented by China’s governing regime, McLachlin replied that “that would be something we have to wait and see.”
“Obviously, there’s no point staying on a court that is not respected, and whose rulings are not implemented,” McLachlin said. “But 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. So we’ll see what happens ... But I am perfectly satisfied, 100 per cent satisfied, that I’m not doing anything negative to prop up that regime.”
“And I think that the role of the independent judges may be helpful,” she added. “History is replete with examples of judges who have stood up to bad laws, ... including [in] Canada. Our court would routinely say, ‘This law goes too far. It's not consistent with the Charter,’” she said.
“That’s what Hong Kong needs now. And I’m hoping that it will work out, and when the court makes those rulings that they will be respected and that that will help the cause of democracy in Hong Kong, which many people are still fighting very hard for. I can tell you that.”
Photo of Beverley McLachlin: Roy Grogan Photography
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