Founder and President of democracy think-tank, Section 1, Senior Fellow of Massey College, Centre Associate of the UBC Centre for Constitutional Law and Legal Studies, Canadian International Council Advisory Board Member, Chair Emeritus of the Jane Goodall Institute, and editor, most recently, of The Notwithstanding Clause and the Canadian Charter (McGill-Queen`s University Press)
Last July, Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, agreed to renew her appointment as one of 14 part-time foreign judges on Hong Kong’s highest court, the Court of Final Appeal. She was roundly criticized by some for lending her very considerable and well-earned esteem to an increasingly authoritarian and repressive regime. Hong Kong, once a bastion of relative openness and democracy during the period of British governance, had recently submitted to Beijing’s iron thumb and, in 2020, had adopted its illiberal national security law, partly in response to the 2019 democracy protests. The new law — officially known as the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region — established the crimes of secession, subversion, terrorism and collusion with foreign organizations, thereby criminalizing any political speech or activity deemed subversive to the regime.
When McLachlin’s term came up for renewal last year, many assumed that she would decline reappointment. She did not. Instead, she defended her decision to renew her position. “The court” she said, “is perhaps the last democratic institution in Hong Kong that has not been challenged. … I do not wish to do anything that will weaken the last bastion perhaps of intact democracy in Hong Kong.”
This past week, two U.K. judges who also sat on the Court of Final Appeal resigned from the court. Their resignations were applauded in a statement by U.K. Foreign Secretary Liz Truss, who said that, as the People’s Republic of China was intent on using the national security law to undermine the basic rights and freedoms of Hongkongers, “it was no longer tenable for serving U.K. judges to sit” on the Hong Kong court.
McLachlin, on the other hand, has maintained that the “court is operating as an independent, judicial branch of government — perhaps the last surviving strong institution of democracy. … And it’s there for people to give them fair hearings and independent justice from the courts.” McLachlin categorically denies that her service on the court lends legitimacy to the administration. She has stated that the court “has no connection with the regime at all” and that she had been assured by the chief justice that the court’s independence is not in jeopardy. “I try to make these decisions in a principled way, and I think the people of Hong Kong are entitled to an independent final court of appeal”, she said. “They are fortunate so far to have that independent court of appeal.”
McLachlin is, of course, right to insist on absolute adherence to the principle of judicial independence as a condition of her continued tenure on the court. There are few institutions more fundamental to the integrity and legitimacy of a constitutional democracy than that of an independent judiciary. Judges cannot decide cases impartially and with regard to the merits — they cannot render “justice” in each matter — unless they have the ability to exercise their responsibilities free of political pressure and free of influence by the executive and legislative branches of government and, of course, by parties with an interest in the proceedings. Judges must have the authority to review laws and assess their potential inconsistency with a nation’s constitution. The judicial declaratory power is one of the hallmarks of constitutional democracy and serves as a fundamental check on government abuse of power, including in democracies in which the government has been elected by a popular majority.
And therein lies the rub. By the standards of any constitutional democracy — especially of the liberal variety — the national security law is an unjust law. Its key provisions, indeed, its very purpose, violate the Hong Kong Bill of Rights. And yet, it is the law of the land. It is the law which Justice McLachlin may be required to interpret, to apply and to enforce, even if she has concluded that it is in conflict with the Hong Kong Bill of Rights and with otherwise long-standing and well-accepted common law principles affirming the dignity and civil liberties of all persons.
The principle of judicial independence is a sine qua non of any just society. But so is the principle of judicial effectiveness. In a constitutional democracy, judges must be able to strike down unjust laws. What sort of “judicial independence” is it when a judge’s ruling is bound to be rejected and rendered nugatory by the political branch of government that has ultimate authority to “interpret” the law? McLachlin will find out soon enough.