Former Chief Justice of Canada renews post at Hong Kong’s highest court despite Beijing’s tightening grip – .

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Former Chief Justice of Canada renews post at Hong Kong’s highest court despite Beijing’s tightening grip – .


Some critics say McLachlin helps support a system used to erase fundamental freedoms, while others argue that foreign judges are essential to maintaining the independence of Hong Kong courts.

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After her first stint as a foreign judge at Hong Kong’s highest court, Beverley McLachlin insisted that the city’s judiciary remained independent, despite increasing pressure from Beijing.

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That was at the end of 2019. Much has happened in the enclave since the former Chief Justice of the Supreme Court of Canada completed his first assignment there.

China imposed a draconian new national security law, ushering in a more repressive era that saw authorities shut down a pro-democracy newspaper, arrest opposition politicians, and even seize children’s books they considered seditious .

Two other foreign judges left the court, one citing the potential negative impact of the security law.

Despite Beijing’s tightening grip on the city, McLachlin has just agreed to serve a new three-year term on the Court of Final Appeal, sparking heated controversy in a legal community where she is otherwise revered.

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Some critics say McLachlin helps support a system used to erase fundamental freedoms, while others argue that foreign judges are essential to maintaining the independence of Hong Kong courts.

Even before she was returned to court, administrators of the Law Society of Ontario – the province’s legal regulator – debated a motion calling on her to resign.

The February resolution was defeated 28-17. But Ryan Alford, a law professor at Lakehead University in Thunder Bay, voted in favor and says he doesn’t see why McLachlin is still in court.

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“It’s lending prestige to an institution that does not deserve prestige,” Alford accused in an interview. “He now conducts political prosecutions through essentially a state trial process. That someone as esteemed as the former Chief Justice of Canada be a member of this court … actively supports Beijing’s goals in Hong Kong, which are to crush the democratic movement.

But Jonathan Rosenthal, a respected criminal lawyer and another “adviser” to the bar, said he had no doubts that McLachlin, with his “incredible heritage” on the bench, would do the right thing.

“We have to recognize who Beverley McLachlin is, the important role she played as a lawyer in Canada,” said Rosenthal. « If she came to the conclusion that she could not make independent and correct decisions, I am very confident… she would take the appropriate action and resign.

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McLachlin is one of 14 high-level judges from ordinary courts such as the UK and Australia to sit as “non-permanent” members of the final appeal court. The unusual arrangement was spelled out in the Basic Law, Hong Kong’s constitution accepted by China and Britain when the city was handed over to Beijing in 1997. It was intended to replace the process under British rule that allowed to appeal decisions to a court. higher court in London.

It is giving prestige to an institution that does not deserve prestige

Democracy activists were already concerned about Beijing’s encroachment on judicial independence when McLachlin was first appointed. But after hearing three non-political cases at the end of 2019, she told the National Post that the courts are still “very independent.”

“Having judges from England, Australia or Canada on the ground, signing decisions, builds public confidence in their justice system and in those decisions,” McLachlin said.

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Since then, following massive pro-democracy protests, China has imposed the National Security Law, arguing it was necessary to restore stability in Hong Kong.

The statute punishes up to life imprisonment for offenses such as attacking the authority of the State, collusion with foreign countries or “external elements” and the promotion of independence. More than 100 people have been charged since the law came into force in June 2020, including many protest organizers or pro-democracy politicians. The first of the defendants was sentenced last Thursday to nine years in prison for inciting secession and terrorism. The man waved a flag saying “Free Hong Kong, Revolution of Our Time” and collided with the police on his motorbike as they tried to stop him.

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Jimmy Lai, owner of the fiercely independent Apple Daily newspaper, and many of its editors have been arrested, prompting the popular outlet to shut down for good.

Baroness Brenda Hale, the British judge appointed alongside McLachlin in 2018, recently announced that she will not be returning for a second term.

We must recognize who Beverley McLachlin is

Hale publicly cited personal reasons – she no longer liked to fly to Hong Kong – while admitting that “the jury still hadn’t figured out” how the court would operate under the security law.

Another foreign judge on the tribunal, Australia’s James Spigelman, resigned last September, in fact citing concerns about the law.

In fact, the legislation has a direct impact on the courts, allowing trials on serious criminal charges to be held behind closed doors and giving the Beijing-appointed chief executive officer of Hong Kong the right to choose judges in national security cases. .

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The legislation also became part of the city’s constitution, partially nullifying basic law and the rights it guaranteed – rather than being subject to it, Alford said. He pointed to Lai’s case, where the publisher had to prove that he would not threaten national security to be released on bail, reversing the usual common law burden on prosecutors to show why an accused should be refuse bail. The final appeals court upheld the lower court’s ruling, saying its hands were tied by the new security law.

The tribunal has “become nothing more than an instrument of oppression” and it is disappointing that McLachlin renews its support, said Toronto lawyer Chi-Kun Shi, who brought the Law Society’s motion calling on McLachlin to resign.

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But others believe that foreign judges are still needed as a protective bulwark in troubling times.

Philip Dykes, head of the Hong Kong Bar Association, urged foreign lawyers last year to stay put, telling the Financial Times their high caliber makes them an ‘ornament’ of the system and that a massive departure would tell the world something was “seriously wrong” in Hong Kong.

Simon Young, a law professor at the University of Hong Kong, echoed his concerns.

“Losing our foreign CFA judges in this way,” he told the South China Morning Post, “would lead to a crisis of confidence in our justice system.”

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