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Tuesday, September 29, 2020, 00:19
Court of Final Appeal: Judges resisting political manipulation
By Grenville Cross
Tuesday, September 29, 2020, 00:19 By Grenville Cross

Since 1997, the Hong Kong Court of Final Appeal has played a pivotal role in advancing justice and upholding the rule of law. It has done this fearlessly and objectively, with its judgments invariably being impeccable. This, of course, has been a reflection of the quality of its judges. In discharging its functions, moreover, the court has operated from the secure base provided by the Basic Law, which provides that the city’s courts “shall exercise judicial power independently, free from any interference” (Article 85).  

Apart from the chief justice and the three permanent judges, the Court of Final Appeal, to form its quorum of five judges, is able to draw from a pool of non-permanent judges, not exceeding 30, who are either retired local judges or overseas judges from other common law jurisdictions. There are currently 13 overseas non-permanent judges, who come from Australia (three), Canada (one), and the United Kingdom (nine), and they are often able to provide valuable outside perspectives on difficult legal questions.

Of the overseas judges, none, perhaps, is more illustrious than Canada’s Madam Justice Beverley McLachlin. She served with great distinction as the chief justice of Canada from 2000 to 2017, being the first female to hold that post, and was also the longest-serving chief justice in her country’s history. In 2018, she accepted an invitation from the chief justice, Geoffrey Ma Tao-li, to join the Court of Final Appeal, for three years, which was widely seen as a coup for Hong Kong. Not only is McLachlin the first Canadian to sit on the court, she is also the first female to have participated in its hearings.

In the event, McLachlin first sat on the Court of Final Appeal from Nov 22, 2018 to Dec 15, 2019, during which she heard three appeals. On Dec 30, after her return to Canada, she was asked by the National Post newspaper about her impressions of the court, and her response was illuminating. She said, “The law is very vigorously applied. It’s a very high level of judging. The court is independent.” She added that the presence of overseas judges on the court, contributing to its judgments, “enhances public confidence in their judicial system, and in those decisions”.

However, after the enactment of the National Security Law for Hong Kong on June 30, senseless hostility was directed at the city, orchestrated by the United States, which sees Hong Kong as a useful pawn in its geopolitical rivalry with China. The US and its close allies, including Canada, have sought to undermine criminal justice in Hong Kong by, for example, suspending their extradition treaties with the city, meaning that criminals can now more easily escape their just deserts. Although, by doing this, they are also harming themselves, reason has been sacrificed for ideology, and the fallout has even affected the Court of Final Appeal.

Within days of the new law being passed, McLachlin faced sustained pressure from various quarters to review her role on the Court of Final Appeal. On July 9, for example, the former Liberal Party justice minister, Irwin Cotler, urged her to resign, claiming that the independence of the judiciary had been removed. Thereafter, Canada’s former ambassador to China, David Mulroney, told her to leave, claiming her presence on the court lent it a legitimacy it did not deserve. From within the Parliament itself, Peter Kent, the Conservative Party’s former environment minister, also advised her to quit, saying this would “send a strong message about how Beijing has compromised the rule of law in Hong Kong”. 

Although the pressure on McLachlin only developed after the new law was enacted, anti-China forces have been trying for a long time to weaken the Court of Final Appeal in this way. On Nov 6, for example, the UK’s House of Commons Foreign Affairs Committee, chaired by the veteran China basher, Tom Tugendhat, told its government that it was concerned at British judges sitting on the court, as this could lead Britain to “inadvertently appear complicit in supporting and participating in a system that is undermining the rule of law”. Tugendhat also asked the government to liaise with other countries which send judges to sit on the court, so the involvement on it of all their judges could be reviewed.

On Sept 18, Tugendhat and his allies received a fillip. It was announced that one of the four Australian non-permanent judges, Justice James Spigelman, a former chief justice of New South Wales, had resigned his position. Although he gave no explanation to the chief executive, Carrie Lam Cheng Yuet-ngor, he was nonetheless reported by the Australian Broadcasting Corp, which he once chaired, as having said his resignation was “related to the content of the national security legislation”. 

Not surprisingly, Spigelman’s actions delighted those who want to undermine the Court of Final Appeal, and they hoped that others would follow suit. However, this has not happened, and one of Spigelman’s compatriots, Justice Robert French, a former chief justice of Australia, declared he had no intention of doing so. He explained he had “the greatest admiration for the chief justice and the other permanent judges of that court and for their commitment in maintaining its judicial independence”. In spite of this, however, everyone needs to understand precisely why it is that some people are so keen for the overseas judges to quit the court.   

There is nothing China’s critics relish more than accusing it of having damaged the rule of law in Hong Kong and curbing liberties. However, their big problem, frankly insuperable, lies in the inconvenient truth that Hong Kong has one of the finest judiciaries in the Asia-Pacific region, and that, since 1997, it has scrupulously upheld the rights and freedoms of its people. Quite clearly, the Court of Final Appeal, at the apex, has done outstanding work in ensuring justice for everyone, and this is why China’s antagonists are now trying so hard to weaken it. Once they have achieved that, they consider it will be far easier for them to advance their allegations against China.

However, these people reckoned without the resolution of the overseas judges, who have, at least thus far, refused to buckle to political pressure. In particular, McLachlin, who has probably faced the greatest pressure, has stoically held her ground, and shown she is not a quitter. Indeed, when interviewed by Asia Business Law Journal, on Sept 23, she frankly described her feelings toward the Court of Final Appeal, disclosing that she felt “totally comfortable with the culture”. She said, “It’s a wonderful court, and I was very happy to work with it, to be part of it,” adding that the jurists on it from various jurisdictions “represent the highest tradition of impartiality around the world”.  

The greatest judges, of course, not only assert their independence, but also adhere strictly to what they believe to be right. They know political machinations when they see them, and, as McLachlin has shown, they must always stand firm. So long, therefore, as the Court of Final Appeal is able to recruit overseas jurists of this stature, it will maintain its reputation for judicial excellence throughout the common law world.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily. 

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