When Is A Democracy A Dictatorship?

"It's lending prestige to an institution that is not deserving of prestige."

"It's now conducting political prosecutions under essentially a state-trial process. For someone as esteemed as the former chief justice of Canada to be a member of that court ... is actively supporting Beijing's goals in Hong Kong, which are to crush the democracy movement."

Ryan Alford, law professor Lakehead University, Thunder Bay, Ontario

"We have to recognize who Beverley McLachlin is, the important role she played as a jurist in Canada."

"If she came to the conclusion that she couldn't make independent and correct decisions, I'm very confident ... she would take the appropriate step and resign."

Jonathan Rosenthal, criminal lawyer, bencher, Law Society of Canada

"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."

Former Chief Justice, Beverley McLachlin, Supreme Court of Canada

"Losing our foreign judges on the [Court of Final Appeal] in this way would lead to a crisis of confidence in our judicial system."

Simon Young, law professor, University of Hong Kong

Former Chief Justice of the Supreme Court of Canada Beverley McLachlin in December 2017. She has recently been a part-time judge in Hong Kong. Photo by Justin Tang/The Canadian Press/File

Foreign judges assigned to sit for three-year stints as overseas jurists in Hong Kong are, according to Philip Dykes, head of the Hong Kong bar association 'ornaments' of the system. The world would have the impression that something was 'seriously amiss', he stated, should a mass departure ensue of those same high calibre overseas jurists. Their presence, in other words, lends trust and prestige to the pursuit of justice in Hong Kong, and by extension, China now that Beijing effectively overrides Hong Kong law.

Britain's Baroness Brenda Hale announced she will not be returning for a second term, following her appointment alongside Canada's McLachlin in 2018. Much has changed during that period, and none of it good for the rule of law and democracy in Hong Kong. "The jury is still out" she commented, on how the court might function under the weight of the new security law where trials with serious criminal charges may be held in camera, where the Beijing-appointed chief executive now has the prerogative to select which judges may sit on national security cases.

 

: Court of Final Appeal Justice Andrew Cheung (left) will replace Chief Justice Geoffrey Ma (center) early next year.  REUTERS/Tyrone Siu

 

Doubt over the viability of the Hong Kong court under these circumstances also led another foreign judge to leave the court; Australian James Spigelman, who cited his concerns over the way the new law impacted justice in Hong Kong, Beijing-style. The new legislation has joined the city's constitution, overriding the 1997 Basic Law dating from the British-China agreement when Britain turned Hong Kong, then a British protectorate back to China, giving it autonomous special status under its own constitution.

Professor Alford helpfully pointed out that in the case of the wealthy Hong Kong publisher Jimmy Lai, a critic of Beijing's authoritarianism and anti-Democratic stance, Mr. Lai had to prove he would not be a threat to national security before bail could be granted, thus reversing common-law general onus on prosecutors to demonstrate why a defendant should be denied bail. Where the Court of Final Appeal upheld the lower court ruling indicating its hands to be tied by the new security law.

Beverley McLachlin agreed to sit for another three-year term as a "non-permanent" member of Hong Kong's final appeal court, one of 14 judges from common-law jurisdictions, a reflection of the Basic Law, meant to replace the process under British rule permitting rulings to be appealed to a higher London court. Beijing, however, has encroached on its judicial independence, despite that Ms.McLachlin insists the courts remained "very independent".

 

PROTEST TARGET: A bystander views damage to a vandalized entrance of the Court of Final Appeal in Hong Kong’s Central district last December. REUTERS/Laurel Chor

 

The national security law was imposed on Hong Kong under the reasoning it was a requirement to enable stability to be restored to Hong Kong after pro-democracy protests roiled the city-state. Punishment up to life in prison for offences viewed as undermining the authority of the state, colluding with foreign countries or "external elements" and pushing for independence sums up the statute. Charges under that statute have targeted over a hundred people since it became law in 2020, mostly protest organizers and pro-democracy politicians.

Ms.McLachlin's decision to sit for another three-year term on the Court of Final Appeal in Hong Kong effectively validates the authority of the People's Republic of China over Hong Kong despite its pledge not to disturb the status quo outlined in the Basic Law for a fifty-year period. In February directors of the Law Society of Ontario, the legal regulator of the province, debated a motion calling on her to re-think her decision. It was defeated by a wide margin as being beyond their purview. All of which typifies official Canada's timidity with the Chinese dictatorship.

 

DEFIANT: Students don Guy Fawkes masks during a news conference to support anti-government protests before their graduation ceremony at Hong Kong Polytechnic University in November. REUTERS/Shannon Stapleton