This article originally appeared in the National Post.
By Ryan Alford, June 22, 2022
Former chief justice of Canada Beverley McLachlin appeared on CBC last week to discuss her latest recommendations on an issue that vexes our leaders, namely, how to curb online misinformation. Her defence of unprecedented restrictions on free speech (and of a novel “duty of responsible expression”) was presented in such a soothing manner that one would hardly suspect it smoothed the way for the massive expansion of regulatory authority currently being rammed through Parliament, as Bill C-11 would give the Canadian Radio-television and Telecommunications Commission the power to regulate online media, including content produced by the users of social media platforms.
Approaching the five-minute mark, this rather drab discussion became considerably more vivid. The CBC’s Vassy Kapelos had the temerity to ask McLachlin why she had renewed her appointment to Hong Kong’s highest court after China’s implementation of the National Security Law, which allows for the imprisonment of those who merely advocate for democracy. Ironically, when challenged, this enemy of misinformation quickly resorted to becoming rather economical with the truth. Indeed, it is hard to see how McLachlin’s speech defending China’s approach to dismantling the region’s legal system could be considered responsible under the circumstances of its all-out assault on Hong Kong’s rule of law. More importantly, it served to camouflage Beijing’s attack on the region’s judiciary and the rights of Hongkongers that they can no longer protect.
McLachlin began by asserting that the Hong Kong Court of Final Appeal (HKCFA) “is completely independent and functioning in the way I am used (to) in Canada.” Leaving aside the question of whether Canadian courts can be counted upon to enforce laws prohibiting seditious speech and peaceful protests, this simply ignores the gross interference of the executive in the selection process that determines which judges are eligible to hear appeals against convictions for state crimes. Under the National Security Law, Hong Kong’s chief executive (from July 1 onward, that will be John Lee, a Beijing-approved hatchet man who directed the anti-democracy crackdown over the past five years) will determine which judges can be selected by the chief justice to sit in judgment on these appeals. McLachlin didn’t make the list.
In the past, McLachlin has avoided acknowledging the chief executive’s control over the court by pointing to the fact that it is Chief Justice Andrew Cheung who assigns the judges to appeals, while ignoring the fact that he will be choosing them from John Lee’s list. McLachlin’s chief accepted these restrictions, among others that are even worse. In his reasons for denying bail to Jimmy Lai (the newspaper publisher who was the pillar of the pro-democracy movement), Cheung made it clear that he understands it is not his role to question any laws promulgated by Beijing. In HKSAR v. Lai Chee Ying, the chief justice surrendered the power of constitutional review, by disclaiming any judicial power to address whether these laws are consistent with the region’s constitution.
Cheung went even further, writing that the courts had no power to address whether laws written in Beijing for Hong Kong were consistent with the International Covenant on Civil and Political Rights, the single most important source of international law. While China is one of six nations that never ratified this instrument, it had agreed that it would continue to apply to Hong Kong as a condition of reacquiring sovereignty over the region. Cheung’s fecklessness renders these fundamental protections effectively void.
In the interview, McLachlin promised that if the court’s rulings were not respected by the government, she would leave the court. Unfortunately, Cheung has made it clear that this day will never come, because the court has already agreed not to issue any rulings that Beijing would be bound to respect. If I could ask McLachlin one question to answer directly and without evasion, it would be whether she would have remained on the Supreme Court of Canada had it abandoned its jurisdiction to review the constitutionality of all federal legislation.
My followup question would be about what McLachlin believes she can accomplish in this role. She declined to comment on the National Security Law in the interview because she may have to rule on it, eventually. That is simply wrong: she is not able to do so, because she’s not on the chief executive’s list. Even if John Lee added her to that list, her chief judge has already abandoned the court’s power to rule that it is unconstitutional or contrary to binding human rights law.
McLachlin’s last remaining justification for remaining in her post is her contention that the Hong Kong bar wants her to remain. It is unclear if she is aware that its leadership has already been purged of all dissidents, leaving behind only pro-Beijing loyalists. In March of 2022, the former head of the Hong Kong Bar Association fled the country after he was summoned to an interview by the national security police. By doing so, he narrowly avoided the fate of such lawyers as Chow Hang-tung and Albert Ho, who remain imprisoned for merely attempting to protect Hongkongers’ right to preserve the memory of the Tiananmen Square Massacre.
The issue of whether Hong Kong’s lawyers really want McLachlin to stay was decisively settled on May 30, 2022, when over 50 nongovernmental organizations representing Hongkongers who had fled abroad issued an open letter calling for her and the other overseas non-permanent judges (NPJs) to resign, concluding that “far from protecting the rule of law, they are lending a veneer of legitimacy to the regime’s authoritarian excesses … the overseas NPJs’ ‘window dressing’ has too long misled the world about the grave damage done to the Hong Kong courts … Many of you are venerated in your own countries for protecting the rule of law and standing up for human rights, and deservedly so. What we ask is simply that you do the same for Hongkongers, rather than acting as enablers of the Hong Kong and PRC government’s oppression.”
In a report from February 2022 on recent developments affecting judicial independence in Hong Kong, a distinguished panel of international experts, which included former attorney general of Canada Irwin Cotler, concluded that “Hong Kong officials have repeatedly pointed to the continued role of overseas Non-Permanent Judges on the HKCFA as evidence that Hong Kong’s judicial system as a whole remains independent … (Secretary for Justice Teresa Cheng) relied in particular on the statements of … Beverley McLachlin PC … as evidence of judicial independence in Hong Kong.” In a postscript addressing the resignation of the president and deputy president of the U.K. Supreme Court from Hong Kong’s judiciary, these experts noted the statement of the U.K. foreign secretary that continuing in service “would risk legitimizing oppression,” a conclusion that was “fully consistent with our reasoning.”
In the wake of McLachlin’s blithe rejection of these carefully reasoned and extensively documented appeals to stop providing cover to Beijing’s destruction of Hong Kong’s rule of law, one can only conclude that perhaps more forceful language might be required. If so, I would recommend the words that finally precipitated Neville Chamberlain’s resignation: “You have sat too long here for any good you are doing. … In the name of God, go!”
Ryan Alford is Professor at the Bora Laskin Faculty of Law at Lakehead University and a Senior Fellow of the Macdonald-Laurier Institute.