HONG KONG COURTS WON’T BE SWAYED BY CHINA: MCLACHLIN.
It was an unusual assignment to start with, a retired chief justice of Canada sitting on the bench of Hong Kong’s highest court. The timing made it extraordinary.
Not only did Beverley Mclachlin get her first taste of being a part-time judge in the territory in recent weeks, she did it as a protest movement of historic proportions swirled around her. That movement is aimed in part to defend the legal system from Chinese interference.
But Mclachlin said her initial experience on Hong Kong’s Court of Final Appeal left her convinced the body is immune to such outside pressure.
“The law is very rigorously applied. It’s a very high level of judging,” she said in an interview Monday. “The court is independent.”
One major concern of some legal experts involves the right of China’s National People’s Congress to essentially override court rulings in Hong Kong with what are called “interpretations.” There have been a handful of controversial ones in recent years.
But Mclachlin, 76, said she does not believe they pose any real peril to the city’s courts.
“They’ve used that fairly sparingly, I think. Certainly in the midst of this situation it’s not an imminent sort of thing,” she said. “It doesn’t affect the actual judging of the judges in Hong Kong. It’s something they do after the judges have done their job … It’s happened before and it hasn’t undermined (the system).”
She said, too, that she found “moving” a massive, peaceful protest march she witnessed from her apartment one Sunday.
Mclachlin, who retired in 2017 as the longest-serving chief justice of the Supreme Court of Canada, is the first Canadian to sit on the court, which routinely brings in judges from countries with similar common-law systems. She was also one of the first two women to fill the role, along with Baroness Brenda Hale, outgoing president of the U.K.’S Supreme Court.
In Hong Kong from Nov. 22 to Dec. 15, Mclachlin heard three cases as part of panels that combined local, permanent court members and “non-permanent” ones like her. None of the cases were particularly political or related to the protests. The unique system is laid out in the Basic Law, the Hong Kong mini-constitution hammered out when Britain handed over the city to China in 1997.
But as Beijing increasingly flexes its muscle in Hong Kong, there have been growing concerns about judicial independence, considered a crucial part of a system that offers only limited democracy.
Three days before Mclachlin arrived, China’s National People’s Congress strongly criticized a ruling by another Hong Kong court to overturn the city’s new law against protesters wearing masks, triggering speculation Beijing would reverse the decision.
Last month, the foreign affairs committee of the U.K.’S House of Commons warned that sending British judges to Hong Kong could create a “reputational risk” if the country looks “complicit in supporting and participating in a system that is undermining the rule of law.” The committee recommended the government consult with Canada and other countries who also supply judges to the court.
But Mclachlin suggested that fear was hypothetical and in her experience “not a reasonable one to contemplate.”
In fact, those foreign judges function chiefly to underscore the impartiality of the local members of the court of final appeal, she said.
“The court is very independent, the judges are very high calibre. So they don’t need somebody, in my opinion, to tell them what to do. And that’s not the role,” said Mclachlin. “The presence of judges from England, Australia or Canada on the court, signing on to the decisions, enhances public confidence in their justice system and in those decisions.”
She said she arrived in Hong Kong as dramatic clashes between police and protesters at two universities were winding down, but found the atmosphere generally peaceful and calm.
Media focus on isolated incidents of violence might leave the impression violence is widespread, but that’s not the case, she said. Mclachlin cited a march she witnessed that was reported to involve almost 900,000 people.
“It was quite moving. You’d see so many people for so many hours. They just keep coming down the street. Side by side, very peacefully. It’s quite impressive,” said the judge. “What you see is a lot of Hong Kongers peacefully expressing whatever they’re expressing — their beliefs that the independent court system and so on should be continuing into their future.”