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In Defence of Beverley McLachlin

Written by Julien Yuen for the Hong Kong Politics/ Legal Issues.



In this article, Julien Yuen inspects McLachlin's role in Hong Kong and her statements that may be damning to the betterment of Hong Kong's legal system. It is a matter of justice that McLachlin addresses these issues.

Since the implementation of the draconian National Security Law, several overseas non-permanent judges of the Hong Kong Court of Final Appeal (HKCFA) have resigned.[1] Their decision was praised by many in the Pro-Democratic activists and their supporters in the Western community. Simultaneously, their decision has prompted concerned Canadians to call for the resignation of Beverly McLachlin, a Canadian overseas non-permanent judge who has been serving since 2018 shortly after her term as chief justice of Canada.[2]

 

An opinion by the Editorial Board of the Globe and Mail (the Globe) perfectly encapsulates the usual line of argument: “The legal system as a whole has been undeniably compromised and corrupted,” therefore, such participation in the system would serve as “fodder for Beijing’s propaganda, and a weapon to be used against brave dissidents.”[3]

 

A series of short letters submitted by readers in response to the board’s opinion were also posted. Howard Greenfield from Montreal wrote “If Beverley McLachlin remains on the bench in Hong Kong, many may falsely assume justice is being done when nothing seems further from the truth. This, then, is not becoming of Canada’s former chief justice and is a black eye for Canada.”[4]

Greenfield is not entirely wrong. Like many Canadians, I find it hard to defend McLachlin, especially after she told the Globe that “the court is doing a terrific job of helping maintain rights for people, insofar as the law permits it, in Hong Kong.”[5] It is not unreasonable for Canadians to worry about the image McLachlin is painting Canada of. However, participation in an imperfect legal system does not automatically equate to endorsement of it and the political machine.

 

It would not be surprising if Beijing took McLachlin’s continued engagement as her endorsement of the system. But would it be any more surprising if her resignation reinforced their narrative that foreigners are meddling in China's internal affairs? I know I will not be surprised.

 

Of course, if she continues to serve, McLachlin’s ability to influence the direction Hong Kong is headed towards would be no less limited than that of her resignation. Even if she had the ability, any final decisions made could easily be “re-interpreted” and overturned by the Central People’s Government in Beijing, despite the fact that the HKCFA is the final appellate court.She would not be able to “rescue” Jimmy Lai from being jailed for committing political crimes, as many callers for her resignation would certainly appreciate. Nonetheless, even though she is not in a position to effectively fight back against Beijing, her continued term also serves as a symbol of resistance if she wishes so. By refusing to abandon her post, McLachlin can signal her commitment to upholding fundamental rights and freedom. Her tenancy can be a statement as powerful as that made by ordinary citizens still in Hong Kong who are yet to give up when tens of thousands are emigrating out of the city each year. If that is not courage, I do not know what is.

 

In the same interview with the Globe where she claimed that “the court is doing a terrific job,” McLachlin said she thinks “Hong Kong has need of the rule of law.”

 

If ensuring that Hong Kong gets what She needs is McLachlin’s goal, then her first step would be to give up her naive belief and admit that the legal system, in its current state, is deeply flawed and increasingly subject to political interference. Sadly, it appears that this is something she refuses to do.







References

[1] Siddique, H., & Davidson, H. (2022, March 30). UK judges withdraw from Hong Kong's court of final appeal. The Guardian. Retrieved February 17, 2024, from https://www.theguardian.com/world/2022/mar/30/uk-judges-withdraw-from-hong-kong-court-of-final-appeal

[2] HKCFA. (2019, December 2). The Non-Permanent Judges - The Right Honourable Madam Justice Beverley McLACHLIN. Hong Kong Court of Final Appeal. Retrieved February 17, 2024, from https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_61.html

[3] Ibbitson, J. (2023, December 18). Globe editorial: Beverley McLachlin's strange lack of judgment on Hong Kong. The Globe and Mail. https://www.theglobeandmail.com/opinion/editorials/article-beverley-mclachlins-strange-lack-of-judgment-on-hong-kong/

[4] The Globe and Mail. (2023, December 20). Letters to the editor: 'Every day she is on the bench there, she is fighting for justice for the people of Hong Kong.' Beverley McLachlin, plus other letters to the editor for Dec. 20. The Globe and Mail. https://www.theglobeandmail.com/opinion/letters/article-beverley-mclachlin-hong-kong-court-jimmy-lai/

[5] Fine, S. (2023, December 15). Canada's Beverley McLachlin resists calls to leave Hong Kong court ahead of Jimmy Lai trial. The Globe and Mail. https://www.theglobeandmail.com/canada/article-canadas-beverley-mclachlin-defends-role-in-hong-kong-court-system/

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