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In good conscience

Now that China has passed a new national security law, should McLachlin and her foreign peers continue to sit on Hong Kong's highest court of appeal?

Hong Kong Court of Final Appeal

People are often surprised to learn that foreign judges are active participants in Hong Kong’s judicial system. It’s not the only jurisdiction to invite foreign judges to sit on one of its court, but Hong Kong’s Court of Final Appeal can claim to have one of the most distinguished rosters. It includes judges who have held the highest positions in their respective countries, including the President of the U.K. Supreme Court, the Chief Justice of Australia, the President of the New Zealand Court of Appeal, and – since recently – the Chief Justice of Canada.  Beverly McLachlin was the first Canadian to accept an appointment in Hong Kong in 2018, following her retirement from the Supreme Court.

While McLachlin and other foreign judges have until recently reaffirmed their confidence in the integrity of Hong Kong’s judicial system, China’s controversial imposition of a new national security law means they now face a dilemma. Their continued presence might inadvertently help legitimize a system characterized by a clear erosion of the rule of law.

Lord Neuberger, former president of the U.K. Supreme Court, famously said that foreign judges were “the canaries in the coal mines.” So long as they are happy to serve, “you can safely assume that all is well with judicial independence and impartiality in Hong Kong.” Conversely, their departure “would represent a serious alarm call.” This image has been endorsed by local Hong Kong judges and, quite significantly, by members of the territory’s Executive Council.

In light of the current situation, it is time to ask if the canaries should stop singing and sound the alarm.

Participating in the system

The new national security law will severely curtail the political freedoms of Hong Kong citizens. Many countries, including Canada, have expressed grave concerns that the legislation will compromise the city’s autonomy and the “one country, two systems” principle enshrined in Hong Kong’s Basic Law. In response, Prime Minister Justin Trudeau has announced the suspension of the extradition treaty with Hong Kong, signalling a lack of confidence in its new criminal law processes.  

However, it is unlikely that foreign judges will have to sit in judgment on the contentious cases where the national security law is applied to stifle freedom of speech. One of the more controversial aspects of the law provides that Hong Kong’s chief executive, rather than its chief justice, will appoint judges to hear national security cases. But this should not offer any solace. The former chief justice of Hong Kong took the unusual step of criticizing the measure by pointing out that it will be “detrimental to the independence of the judiciary.” Many Hong Kong lawyers echoed the denunciation, as did the U.K. foreign secretary for whom this selective process will undermine the integrity of the system. What’s more, the Chinese government will have the power to transfer national security cases to mainland China where the accused will not benefit from the traditional safeguards of the Hong Kong judicial process.

In essence, then, the system seems purposefully designed to avoid foreign judges addressing the impacts of the national security cases in their judicial capacity. But, while they might be personally removed from the politics and uncomfortable cases, they remain an integral part of the Hong Kong system and should keep in mind the broader ramification of their presence. As Lord Neuberger puts it, “it is right for a judge who strongly believes in the existence and maintenance of fundamental rights to be concerned about the maintenance of the rule of law in the broader sense in the place where he or she is administering justice.”

Turning to precedents

It is not the first time that foreign judges have had to face such a dilemma regarding their role. There is a history of judges from Australia and New Zealand sitting on the courts of small pacific island countries where they have had to reckon with difficult political situations. After the 2006 coup d’état in Fiji, for example, six Australians judges resigned from the archipelago’s court of appeal as they found themselves “no longer able to carry out their duties effectively.” Others decided to remain, including then Chief Justice of Australia Robert French.

But French took the highly unusual step of openly explaining his position in the media. For him, Australian judges that remained involved after the coup “had to consider the benefits gained from their continued contribution to the rule of law against the risk that they may be perceived to have made an implicit bargain with a government whose legality is in question.” French took the view that he would continue to serve until the termination of his pre-coup commission. Still, he would not accept a renewed appointment from the unelected interim government as the “implicit bargain” involved came at too high a price.

The balancing exercise outlined by French can serve as a useful template for foreign judges in Hong Kong. They undoubtedly make a positive contribution to the integrity of the judicial system, but this must be weighed against the implicit endorsement of the new Hong Kong reality which severely curtails political freedoms and dramatically affects the rule of law. The risk of being used as an ornamental canary is even greater for eminent jurists who have themselves been champions for the protection of democracy and the rule of law around the world, including McLachlin.

In a speech given in Hong Kong, Lord Neuberger wisely pointed out that judges in every jurisdictions sometimes have to face legislative and executive actions which they find objectionable. That does not mean that they should step down in the face of having to administer such legislation. But, as he suggested, “a point may come where the laws or executive actions are such that a judge feels that he or she can no longer in all conscience continue in office: that it is no longer appropriate to continue to be part of the system.”

Foreign judges in Hong Kong need to ask themselves if they have reached this breaking point.